Public notice

In planning what to do with the nation’s stockpile of mercury, the feds kept Nevada in the dark every step of the way

Flasks containing mercury were stored on stacked wooden pallets. These are from the Somerville Depot in Hillsborough, N.J.

Flasks containing mercury were stored on stacked wooden pallets. These are from the Somerville Depot in Hillsborough, N.J.

Photo Courtesy of Defense National Stockpile Center

Vermont consultant Barry Lawson called the hearing at the Hawthorne Convention Center back into session after a break.

“It is now 10 minutes to 8:00, and we do not have anybody who has stepped forward who would like to speak, and so we are going to bring this meeting to a close,” Lawson said. “I want to thank the people who have come, once again, for their participation and their comments.”

In fact, not a soul had come forward to comment in either session, before or after the break.

“This, then, concludes the public meeting and the Draft Environmental Impact Statement on Mercury Management held in Hawthorne, Nevada,” Lawson said. “This meeting is adjourned at 7:50 p.m.”

It was over, and they had pulled it off. A federal agency had come to Nevada and held a public hearing that satisfied legal requirements without ever telling anyone in the state the purpose of the hearing—to take public comment on a plan to dump thousands of tons of lethal mercury in Nevada.

The invitations never went out
Another 31 months would pass before the Defense National Stockpile Center (DNSC) announced the designation of Nevada as the dump site, but on that 2003 night in Hawthorne, its officials had succeeded in cutting out of the process U.S. Sen. Harry Reid, Gov. Kenny Guinn and a host of other officials who might have affected the outcome. This was the night for Nevadans to object to the plan, and they hadn’t appeared because they had never been told what was at stake. The fault wasn’t that of the state officials; the federal agency had managed to tee Nevada up for being a mercury dump without ever telling Nevadans the agency was doing it.

When Nevada’s designation as the dump was finally announced in January 2006, Indiana’s Fort Wayne Journal Gazette reported that DNSC publicist Robert Jones said, “Nevada residents didn’t vocally oppose housing the site.”

Nevada residents didn’t object because, as an examination of the public record and legal notices shows, Jones and his colleagues never told those residents their state was even being considered as the dump site.

Usually there is a long process before such a site selection is made, during which plans become known, at least in the affected areas. It turns out that there was a long process—five years—and Nevada knew nothing of it until the announcement of the state’s selection.

The announcement that Hawthorne had been selected to be the dump site was surprise enough that the RN&R has gone through all the notices and statements issued by the Defense National Stockpile Center between the start of the search for a dump site in 2001 and its completion almost exactly five years later. There were 14 such notices before the Hawthorne hearing, filled with bureaucratese and candor-free. There was no announcement at any time that the agency was targeting Nevada or that the environmental impact statement completed partway through the process recommended Nevada as one of the candidate sites.

On Feb. 5, 2001, DNSC issued a “notice of intent” that said, “DNSC is responsible for approximately 4,408 metric tons of mercury currently stored in government warehouses in four locations. … Because the U.S. Congress has decided that the mercury is no longer required for national defense needs, DNSC must decide on a strategy for its long-term management.” To comply with federal environmental law, the notice said, the DNSC would do an environmental impact statement (EIS) to determine whether to leave the mercury where it was, move it to a central repository, process it into a less dangerous substance, or sell it to private businesses. The notice did not contain the words Nevada or Hawthorne.

The same day, a notice saying much the same thing was published on page 8,947 of the Federal Register, a daily magazine that carries legal notices by federal agencies. Nevada and Hawthorne weren’t mentioned.

The next day, the DNSC put out a press release announcing the two previous notices. Nevada and Hawthorne were not mentioned.

On March 5, just a month after starting the process, the DNSC inserted another notice in the Federal Register (page 13,308) that suggested it was already looking at a consolidated storage plan. The notice invited suggestions “from interested federal agencies for potential locations for the long term (greater than 40 years) consolidated storage of the excess mercury.” It did not mention Nevada or Hawthorne.

Two weeks later, on March 23, another notice appeared on page 16,186 of the Federal Register. It was a list of five “scoping” meetings at which it would hear from the public. ("Scoping” is bureaucratese for investigating or inquiring. DNSC uses the term “meeting” to describe the kind of gatherings that most agencies call public hearings.) The purpose of the hearings was vaguely stated as obtaining public comment “on what should be done regarding the management of this mercury,” but it did not outline the options that had been described in the Feb. 5 notice, another indication that the agency had already narrowed those options before the public was heard from in the hearings. This notice didn’t mention Nevada or Hawthorne.

The same day DNSC issued a less formal notice of the same hearings, the kind that is posted on bulletin boards in government buildings. Unlike the Federal Register notice, this document—which was more likely to be seen by the public—didn’t really say what the purpose of the hearings was. Only those who had read the previous notices would know why the hearings were being held. Nevada and Hawthorne were not mentioned.

Three weeks later, on April 13, DNSC issued a news release on the planned hearings, which would begin on April 19. This document was more forthcoming than the legal notices of the hearings. It explained in greater detail the purpose of the hearings. (It also explained the “processing and storage or disposal” line from Feb. 5 as “chemically stabilizing the mercury to reduce or eliminate toxicity and then storing or disposing of it.") Nevada and Hawthorne weren’t mentioned.

Allen Biaggi, the director of the Nevada Department of Conservation and Natural Resources, is one of the officials planning the state’s strategy for responding to the unexpected federal decision to store thousands of tons of mercury in Hawthorne, Nevada.

Photo By David Robert

On July 10, after the five hearings had been held, DNSC put out a “News Update” document that said more than a hundred people had attended the hearings. It didn’t say how many people had testified or submitted comments. And it said it had extended the deadline for the search for storage sites, but it didn’t say for how long. Again, it didn’t mention Nevada or Hawthorne. (It also reported that DNSC had inserted a notice in a U.S. Department of Commerce publication seeking interest from companies offering mercury stabilizing equipment. This notice did not mention Nevada or Hawthorne.)

The “News Update” said the five hearings had kicked off a “public dialogue” on mercury management. It turned out to be a limited dialogue—the DNSC didn’t issue another public notice for 20 months.

The agency fell silent. The entire year of 2002 passed without a peep from the agency on the search for a site and without the DNSC ever informing Nevada officials or the Nevada public that it was considering making their state a mercury dump.

Then on March 21, 2003, the DNSC—under a new letterhead reading “Mercury Management Environmental Impact Statement"—issued a list of repositories where the documentation on which the impact statement was built. One of the 15 such repositories around the nation was the Mineral County Public Library in Hawthorne. This was the first mention of Nevada or Hawthorne in any of the public notices issued by DNSC, but it still gave no hint that Nevada was a possible site for dumping.

The crucial point at which Nevadans were kept in the dark came three weeks later.

On April 11, the DNSC issued a notice that the environmental impact statement draft was available and that hearings on it would be held in six states across the nation and in Washington, D.C. One of the hearings was scheduled for Hawthorne. Nowhere did this notice say where the EIS recommended putting the mercury—the whole purpose of the EIS. This was the key point at which the public would normally be informed by a press release of the recommendations in the EIS. DNSC failed to include any list of the recommendations in its news release. It was the vital failure.

Besides Hawthorne, hearings on the EIS would be held at Oak Ridge, Tenn.; New Haven, Ind.; Tooele, Utah; Warren, Ohio; Hillsborough, N.J.; and Washington, D.C.

In six single-spaced pages, the DNSC found room to mention the Hawthorne hearing four times. It did list the four communities where the mercury was then stored twice each. It listed all seven communities across the nation where hearings would be held. It didn’t, however, list the sites where the agency was considering dumping the mercury stockpiles—and gave no hint that some of the hearing sites were also dump sites.

On April 14, a news release went out announcing the availability of the EIS for reading. This release listed the four communities where the mercury was then stored, but this time the agency could not even find room to list the seven communities where hearings would be held, much less identify any of them as candidates for a central storage site.

Failure to communicate
After this sterling two-year campaign of public education, Nevadans had no idea why the June 10, 2003, Hawthorne hearing was held.

The hearing was moderated, for some reason, by Barry Lawson, a visiting geography scholar at Dartmouth. Lawson is a research associate at the college’s business school and has his own consulting firm. Also attending the Hawthorne hearing as an observer was DNSC administrator Cornel Holder. Lawson opened the hearing at 7:20 p.m. His opening words were revealing:

“We’re going to put this on record so that even if you don’t speak, it will be clear that we did hold a hearing here and had an opportunity. … I am a neutral. I have been asked to conduct this hearing as an independent and neutral moderator and to assure that all individuals here tonight who wish to comment on the mercury statement have a fair opportunity to do so.”

Lawson asked for people to come forward and make comments. None did. He called a recess that lasted half an hour and then reconvened the hearing. When no one came forward, he adjourned the session.

The RN&R asked Jones and his colleague John Reinders how the Nevada public could have known that the Hawthorne hearing was about a plan to dump mercury there. They first produced a transcript of the hearing itself. Since this was produced after the hearing, we asked again. Jones directed attention to the public notices, news releases and so on that have already been reviewed here. When those failed to show advance notice to the Nevada public that the state was being targeted for a dump, Jones said the information was in newspaper advertisements in the Mineral County Independent and the Mason Valley News, and in a postcard mailed to 182 residents of Hawthorne.

“Those were the impact sites,” Jones said to explain why he didn’t send information to any other news outlets. “So we looked at the papers that were in the surrounding areas to try to encourage the public to come to the Hawthorne meeting. And quite naturally, if you’re going to do that, then you will focus on the local papers.”

But even then, the material sent to the newspapers didn’t tell the public why they should go to the hearing. It didn’t say that Hawthorne was being recommended as a site for mercury dumping. A check of the two newspapers turned up the advertisements on page 13 of the May 29, 2003, Independent and page a7 of the June 6 News. Neither of the ads said that Hawthorne had been recommended as a site for the mercury dump. In addition, we found that the Independent had run a news release tailored to local use by the DNSC. It mentioned Hawthorne four times, none of the mentions reporting that the town was being targeted for a mercury dump.

The postcard mailed to 182 of Hawthorne’s 3,311 residents (the ones who lived within .5 mile of the site) also failed to mention the plan. It said only that the hearing was for comment on the “EIS that analyzes alternatives for managing the National Defense Stockpile inventory of 4,436 tons of mercury.”

In fact, the notices—either press releases or advertisements—can barely be said to have given a purpose for the hearing at all. The ad, for instance, said that DNSC “is holding a public meeting on the recently released Draft Mercury Management Environmental Impact Statement (Draft MM EIS) that analyzes three alternatives for managing DNSC’s excess mercury: 1) consolidated storage of the mercury stockpile at one site, 2) sale of the stockpile, and 3) no-action, i.e., leave the mercury at the existing storage locations. DNSC’s preferred alternative is consolidated storage.” The only place where the word Hawthorne appeared was where the location of the hearing was given.

The federal stockpile agency stores its mercury in metal flasks. Six of those flasks are then placed in 30 gallon drums like these.

Photo Courtesy of Defense National Stockpile Center

That language could easily have been used without a word changed for the notices of the 2001 series of hearings held before the EIS was prepared. All it does is describe the original mission of the DNSC assignment to do something about mercury stockpiles. It doesn’t describe the content of the EIS—comment on which was the purpose of the Hawthorne hearing—or its recommendation of Hawthorne as a possible dump site. It gave Nevadans not a single clue that they might have any greater stake in the hearing than the residents of Alabama or Canada. The language was so general that the Hawthorne newspaper didn’t even cover the hearing.

Lawson, who presided at the hearing, says he didn’t know the Nevada public hadn’t been informed that Hawthorne was recommended as a dump site.

“My job is basically to moderate the public hearing, and I have nothing to do with any of the public notification or setting up meetings or anything like that.” He said few people attended.

There was a single, simple step Jones could have taken to inform the entire state. In interviews, he indicated knowledge of Associated Press operations. If he had sent forthright material to any AP office in Nevada—there are three—it would have gotten the word out to the entire populace that the state was being considered for the dump. AP supplies news stories to rural and urban, broadcast and print news outlets.

“No, we did not send it to the AP,” Jones said.

A disingenuous process
In the end, not a single public notice or statement by the Defense National Stockpile Center to the people of Nevada could be found that preceded the hearing and stated plainly that Nevada and several other sites were being targeted in the EIS for dumping. The only way to know the EIS contained a recommendation involving Nevada was to read the EIS, but there are hundreds of such documents issued, and state governments can’t screen them all. The agencies producing those documents must provide some guidance to the people concerned. In this case, there was none.

(We began our series of mail and telephone exchanges with Jones by quoting the Fort Wayne Journal Gazette characterization of his comments, which he didn’t deny. Toward the end of the dialogue, Jones denied saying what the newspaper said. We contacted Journal Gazette reporter Ben Lanka, who said his notes of his interview with Jones say of Nevada, “didn’t have negative responses from locating mercury there.")

In the case of the crucial failure—the April 11, 2003, news release—DNSC’s silence on the nature of the EIS’s recommendations was a striking departure from normal practice by government agencies.

By comparison, for example, the Army Corps of Engineers released a draft environmental impact statement a month after the DNSC mercury impact statement was released. The Corps EIS dealt with coal mining impacts on Appalachian streams and watersheds. The news release issued by the Corps said, “The draft EIS recommends that Federal and State agencies work cooperatively to make the following program enhancements applicable to mountaintop coal mining operations"—followed by 10 detailed and specific bullet points such as “Clarify Surface Mining Control and Reclamation Act regulations to ensure that, where fills are necessary, they are as small as possible and located where they cause the least environmental impact.”

No such specific description of the content and recommendations of the mercury EIS were provided by the DNSC news release or by any other document issued by the agency. The language of the agency’s notices before and after the EIS changed very little. At every step, it withheld news of the plan. As a result, Nevadans had no way of knowing that the EIS contained a ticking time bomb designed to dump mercury in their state.

No one ever said, simply, plainly, and honestly, “We’re considering storing mercury in your state,” and so Nevadans were never fully informed.

Steven Aftergood, director of the Project on Government Secrecy (a program of the Federation of American Scientists) said, “Clearly, the public notification process was inadequate. This is a major project with significant potential environmental impacts, and it’s obvious that it’s the kind of step members of the public would want to consult over. So the system didn’t work in this case. … It may be that one of the steps that legislators need to take is to improve the notification process so that citizens are not blindsided and left without an opportunity to challenge an action like this.”

He said that without such legislation, state officials across the nation will have to take on the job of reading all environmental impact statements, a mammoth task that, in most cases, would eat up resources without producing useful information. (He said they should do that anyway. But in most small states like Nevada, the state environmental protection agencies do not begin to have enough staff people to do the job.)

The actions of the DNSC may have been legal—there is no federal open meeting law like Nevada’s, with agenda requirements—but it may not be. There are noticing requirements, and telling the Nevada public that the Hawthorne hearing was about an environmental impact statement “that analyzes three alternatives for managing DNSC’s excess mercury” is like saying that Brokeback Mountain is a movie about horses.

At the time that most of this process was going on, U.S. Sen. Harry Reid of Nevada was assistant Democratic floor leader—the party’s traffic cop on the senate floor. Had he known what was going down at the DNSC, he might well have put an amendment into some bill exempting Nevada from consideration for the mercury dump. That’s exactly what Utah’s Sen. Robert Bennett did.

Nevada conservation director Allen Biaggi says he has been focusing more on the environmental failings of the federal process than on its procedural problems. But he says both will be a part of the state’s effort to stop the dumping.

“We have concerns with the adequacy of the EIS and documentation is one of the avenues that we’re looking at, along with a number of other things…What was the adequacy of outreach of the document itself in terms of outlining the potential impacts…”

Deputy Nevada attorney general Marta Adams says, “There’s a variety of reasons why I think DOD [DNSC is a part of the Department of Defense] has made some mistakes here, not the least of which is this public notice issue. If you look at their environmental impact statement and their record of decision, you will see that it doesn’t really tell much of anything. … There’s public participation requirements under an EIS, and I think if I were the press, I’d be real fascinated by the whole situation out at Hawthorne because I think there’s some reason to be concerned—because I’m not sure that anything’s been handled exactly right.”

Lucy Dalglish of the Reporters Committee for Freedom of the Press in Virginia said she is surprised that “environmental journalists and … science writers didn’t see this coming” and do some coverage that would have caught Nevada’s eyes. She said that while the government didn’t actually hide the information of interest to Nevadans, “they just didn’t make it easy for you to figure it out.”

Nevada freedom of information advocate Andrea Engleman says, “It’s pretty poor. It may comply, technically, with the law. But it certainly doesn’t go overboard to notify the public of what they need to know. … This is scummy.”