Officials from the state Department of Health Services say it’s been OK to dump low-level radioactive waste in California for years. Just don’t ask them where.
Low-level radioactive waste is perfectly harmless. In fact, it may even be a healthful tonic. Yet, the public must not be allowed to know where it is because then terrorists might use it to make bombs.
Sound strange? How could something be both benign and deadly? And yet, that’s how one state agency that regulates California’s nuclear industry is thinking in the post-9/11 era. Officials at California’s Department of Health Services say low-level radioactive waste is OK to dump into landfills, send to metal recyclers or spread onto farm fields. But, at the same time, the department is using security concerns to prevent the public from getting information about such pollution.
To explain how a state bureaucracy achieves this almost Zen-like state—holding two contradictory notions as true—we must begin nearly a year ago, in a crowded hearing room in the California state Capitol.
In March, an irate state Senator Gloria Romero was grilling regulators from the California Department of Health Services about a recently implemented agency rule that would allow people to dump mildly radioactive waste in any city landfill and potentially in many other places not designed for toxic materials.
The rule would allow nuclear garbage to be tossed in alongside melon rinds, dirty diapers and half-eaten TV dinners, if the radioactive material was cleaner than 25 millirem (a measurement that will be explained more fully shortly).
Romero and her colleagues were aghast, as were members of the California Integrated Waste Management Board (the agency that regulates landfills in the state) and members of environmental groups like the Sierra Club and Committee to Bridge the Gap. After all, there are laws prohibiting the placement of all kinds of potentially hazardous waste, from motor oil to computer equipment, in landfills.
“I can’t throw a battery in a landfill,” reasoned Romero, whose Los Angeles district hosts California’s largest landfill. “I can’t dump a television or household chemicals. How can I explain to California families that it’s OK to dump radioactive waste in their backyard?”
DHS officials explained that they merely were bringing state regulations regarding cleanup of licensed nuclear facilities—from doctors’ offices to nuclear power plants—into line with those of the federal government. In the process, DHS regulators say, they actually tightened rules that, for years, had allowed industries to dump waste in California at much higher levels of radioactivity, 100 to even 500 millirem.
The revelation that radioactive waste quietly had been going into landfills and other places not licensed to handle it came as a bombshell to legislators and environmental groups. If it were true, many enviros said, the ramifications were harrowing. It would mean that there was an unknown and possibly serious health risk lurking in landfills somewhere out there—undetected radiation traveling through the waste stream. Not only landfills, but metal recyclers or any place that received dirt and debris from a contaminated nuclear site unwittingly could be subjecting people to potentially cancer-causing radiation.
Romero and other lawmakers demanded to know from DHS exactly where radioactive waste had gone, as well as when and at what dosages.
“If nuclear waste has been going out there, we need to know about it,” an exasperated Romero told DHS officials.
Nine months later, Romero still doesn’t know. She may never know. That has partly to do with the way DHS has kept, or has failed to keep, records of such releases. It turns out that although DHS is responsible for monitoring the practices of active nuclear facilities, the department has made little effort to track the disposal of radioactive materials. And DHS has been reluctant to share what little information it does have.
When Romero first questioned DHS Director Diana Bonta about such releases, Romero was told that DHS couldn’t provide any answers because it would take years to review the records and because, in many cases, the department simply didn’t know what happened to material from a nuclear facility once it was released from regulation.
And when the media and citizen groups have tried to investigate and review DHS documents, the agency has closed the spigot on public records, claiming that releasing them could pose a security risk.
The conflict over dumping nuclear waste has pitted two branches of government, the Legislature and regulators from Governor Gray Davis’ administration, against each other. It also revolves around sharp differences of opinion as to what the health effects of low doses of radiation really are.
The small amounts of radiation to which the human body is exposed from a particular radioactive source are measured in millirem. It can be used as a measure of the potential health effects of a radioactive source, but the millirem number itself refers only to the level of exposure.
Scientists are deeply divided over what the low levels of radiation mean in terms of human health. A fair amount of information exists about the health risks associated with high levels of radiation. After all, cancer rates at Chernobyl or Nagasaki present pretty clear cases to be studied. But it is more difficult with low levels of radiation. And the main method of determining health risks is to extrapolate data about the effects of highly radioactive material down to lower doses.
These exercises have led most regulating agencies, including the federal Environmental Protection Agency, and the National Academy of Sciences to conclude that exposure to 25 millirem in a lifetime—the equivalent of 2.5 chest X-rays a year, every year during the course of one’s entire life—gives a person a one-in-1,000 chance of developing a fatal cancer. By the same token, a 500-millirem dose presents a fatal cancer risk of one in 60.
These numbers are subject to much debate. Studies at the University of California at Los Angeles suggest that the risks may be 10 times as high and that a dose of 25 millirem during a lifetime will produce a fatal cancer in one out of every 100 people.
But great numbers of people in academia and industry say there is no evidence that low levels of radiation are so harmful. In a person’s everyday life, he or she is exposed to about 300 millirem a year in naturally occurring background radiation, from cosmic rays and natural radioactivity from the earth itself. Flying in a plane exposes someone to more, as does living at higher altitudes—in Colorado, for example. Even the most natural and mundane activities can bump up a person’s dosage.
“If you sleep with someone, you get a little bit of radioactivity from their body. If you eat a banana, you get radioactivity from the potassium,” said Alan Pasternack, director of Cal Rad Forum, an association of businesses and universities (including Southern California Edison, General Electric and the University of California) that use nuclear materials.
And according to the theory of “hormesis,” a little radiation actually may be good for you. The American College of Nuclear Physicians sent a letter to Senator Romero stating, “Research has consistently shown that very low radiation doses have no effect, low doses may have no effect or be beneficial (hormesis), and that it is only moderate or high doses that are detrimental.”
Dan Hirsch, director of the Los Angeles-based Committee to Bridge the Gap, called the argument that the public shouldn’t worry about radiation doses that are far below background radiation “extremely dishonest.”
Committee to Bridge the Gap is an environmental-justice group that focuses on the effects of radioactivity on the health of poor and urban communities. The committee gives technical assistance to those communities about nuclear-policy issues. Hirsch became involved in nuclear policy while he was teaching environmental policy at UCLA 24 years ago. At the time, he and several of his students learned that a nuclear reactor on the UCLA campus had been leaking radioactive contamination in the building in which he taught. He was later appointed chairman of the Adlai Stevenson Program on Nuclear Policy at UC Santa Cruz before he devoted himself full time to Committee to Bridge the Gap.
“Yes, it is true that we are all exposed to background radiation. It is also true that background radiation is giving us cancer,” Hirsch said, adding that naturally occurring background radiation is responsible for cancer in about 1 percent of people. Any radiation to which people are exposed from man-made sources is in addition to naturally occurring background radiation.
Other carcinogens, like certain chemicals, are regulated much more strictly. The EPA won’t allow any industry to release non-radioactive material into the public if it poses more than a one-in-1-million risk of developing a fatal cancer. That’s much lower than the risk associated with 25 millirem of exposure to radiation.
“So, they are allowing exposures that are at least a thousand times greater than any other toxic material,” said Hirsch. “Why is radiation such a privileged pollutant?”
Thousands of businesses that use radioactive materials are required to be licensed by DHS’ Radiologic Health Branch.
When going out of business or otherwise terminating their use of nuclear materials, these nuclear facilities—including shuttered nuclear power plants, doctor’s offices that practice nuclear medicine and biotech firms—must alert DHS and show that no nuclear contamination remains that is higher than the millirem standard.
Only 10 years ago, nuclear facilities only had to clean up to the 500-millirem level. Until 2001, the standard was 100 millirem.
The new rule presented by DHS would have put the cleanup standard at 25 millirem. But, to the horror of environmental and public-health groups, the agency said for the first time that any nuclear waste that fell below the cleanup standard could be disposed of anywhere.
It generally had been assumed that any radioactive contamination left over from these facilities, be it on equipment, tools, gloves, dirt or even building structures themselves, was shipped to licensed low-level-radioactive-waste facilities. Only two such facilities exist in the country today: one in Utah and the other in South Carolina.
The new rule was assailed on the grounds that it would allow nuclear waste into local landfills, even metal recyclers where it could be recycled into anything from soda cans to braces for children’s teeth. Contaminated appliances or tools might end up in thrift stores, critics said, and contaminated soil might end up as dirt for the local high school’s new football field.
Legislators like Romero, environmental groups and waste haulers also criticized DHS for not giving notice that the rule was being changed. They insisted that DHS conduct an Environmental Impact Report that considered the potential health effects of contamination entering the waste stream and that also looked for possible alternatives. But DHS argued that it was not necessary to perform an environmental review of the new rule because the agency actually was invoking a stricter standard than had existed before.
The agency said that low-level radioactive waste, even as high as 100 millirem, always had been allowed into landfills and other non-licensed facilities in the last couple of years (at levels of up to 500 millirem within the last decade).
Lawmakers and environmentalists were left scratching their heads and worrying. The possibility of past dumping of nuclear waste at 100 millirem, even 500 millirem, in landfills was truly frightening.
Then again, said Hirsch, the agency could be lying. He reasoned that DHS had been caught trying to deregulate the disposal of radioactive waste and saving potentially billions of dollars for the nuclear industry by allowing the dumping. By saying that much more radioactive material may have been dumped in the past, the agency could make it look as though it was tightening the rule instead of loosening it.
“Hopefully, they are lying,” Hirsch said in March.
Hirsch noted that decommissioned nuclear power plants at Rancho Seco in Sacramento, in San Onofre and in Humboldt Bay all will have to dispose of tons of mildly contaminated materials in the near future. It can cost up to $500 a cubic foot to ship low-level radioactive waste to a licensed facility. By contrast, fees at most city landfills top out at $50 per ton. Hirsch points to Southern California Edison, which owns the nuclear power plant in San Onofre, as having driven the deregulation of low-level radioactive waste.
Ironically, a proposed low-level-waste facility for California has been fought over for years. Plans were made for such a site in Ward Valley, but they were thwarted by politics, including strong opposition from then Lt. Governor Gray Davis, who opposed it on the grounds that the facility would pose too great a risk to human health. Critics of DHS and its new rule have pointed out that the Ward Valley site would have accepted waste only up to 2 millirem.
The director of the DHS Radiologic Health Branch, Ed Bailey, was once a state health department official in Texas, and he helped that state become the first in the nation to allow dumping of certain short-lived radioactive waste in landfills. The study that paved the way for the Texas deregulation experiment was underwritten by major producers of low-level radioactive waste, such as Texas A&M University and the Halliburton Corp.
Around the same time, the U.S. Nuclear Regulatory Commission and the U.S. Congress wrestled over federal rules to allow low-level radioactive waste to be placed in landfills, recycled or even burned up at municipal incinerators. The rules were extremely controversial and were ultimately defeated with the help of California Representative George Miller.
Department of Health Services Deputy Director Kevin Reilley denied that his agency was attempting to follow the Texas model and said that the Texas rules only concern waste from active nuclear facilities, not from those that are shutting down.
Indeed, Reilley said that the term “low-level radioactive waste” only applies to material from active facilities. Otherwise, the department refers to it simply as “decommissioned material,” even though such material may well be waste and may be radioactive.
In April, Committee to Bridge the Gap and other groups sued DHS to stop implementation of the dumping rule. And in June, Sacramento Superior Court Judge Gail Ohanesian tossed out the rule and demanded that the agency perform a full environmental review. The judge also cast doubt on DHS’ claim that it was strengthening the rule. She said, “The argument that the subject regulation imposes a more stringent standard than what presently exists is not persuasive.” DHS is scheduled to report on the progress of the environmental impact review in early February to the Legislature.
Meanwhile, in reaction to what they perceived as a dangerous deregulation of nuclear waste in California, liberal Democratic senators introduced three pieces of legislation that would impose stricter standards. Romero’s bill, Senate Bill 1970, would have banned the dumping of any radioactive material in landfills. Senator Sheila Kuehl’s bill, Senate Bill 1444, would have set the cleanup standard for decommissioning a nuclear facility at only 5 millirem. Another Kuehl bill, Senate Bill 2065, required the creation of a nuclear-materials registry that would inventory the storage and use of radioactive materials at thousands of active nuclear facilities around the state.
All of the bills were assailed by the nuclear industry and, in some cases, publicly criticized by DHS employees, who were accused by Romero’s supporters of improper lobbying.
On September 20, the governor vetoed Romero’s bill. In his veto message, Davis said the bill placed an unfair burden on business, the biotech industry in particular. Davis signed Kuehl’s bill, which required a low-level-waste registry, but only after getting concessions that would keep much of the information about low-level waste out of the hands of the public (see sidebar). SB 1444 died in the Assembly after heavy lobbying by the nuclear industry, including Southern California Edison.
Shortly after the veto, SN&R endeavored to find out, through the California Public Records Act, just what the effect of these laws would have been. SN&R attempted to look at DHS’ history of decommissioning nuclear facilities during the past decade. On October 3, SN&R asked to inspect records of the decommissioning of nuclear facilities, in order to determine whether significant amounts of radioactive waste have been released in the past and, if not, what level of contamination was typical for a facility that terminated its license.
Although the Public Records Act states that any member of the public may inspect or copy records during regular business hours, DHS officials initially refused to release any records. They claimed that each file would have to be carefully reviewed first and that some of the information would have to be removed from the files or redacted (typically blacked out with marker). The agency justified its action by claiming that the “events of September 11” prohibited public access to all of the information in the files. DHS implied that something in the license-termination files might give terrorists the information needed to build a radioactive “dirty bomb,” an explosive combined with radioactive waste that could be used as a poor man’s nuclear weapon.
DHS legal counsel Michael Lumbard sent a letter to SN&R that stated, “In light of the events of September 11, 2001, and the well-publicized and generally acknowledged threat to the United States of terrorists gaining access to information regarding radioactive material for the purposes of creating weapons that could then threaten public safety, the withholding of certain documents clearly outweighs the public interest in disclosure.”
This language turned out to be boilerplate, repeated by the department in other letters to SN&R, in legal documents to the court in Committee to Bridge the Gap’s lawsuit, and once even recited verbatim over the phone by a DHS media liaison.
Part of the language comes directly from the Public Records Act itself and from one section in particular—Government Code Section 6255—that allows withholding of documents if “the public interest served by not making the record public clearly outweighs the public interest served by disclosure of the record.”
Section 6255 is often used (some say misused) by government agencies attempting to maintain secrecy. The problem with the rule, say open-government advocates, is that a government agency is almost never required to demonstrate the truth of its claim that withholding records is truly in the public interest. “It creates a wild card in the hand of government agencies to withhold documents, even when the Legislature has not seen fit to exempt this kind of information from the records act,” explained Tom Newton, of the California First Amendment Coalition. Newton added that the burden is on the agency to justify its decision to withhold records but that the government usually doesn’t have to try very hard. “The courts have been willing to go along with the barest statements of security risk,” he said. And fears of September 11 can make it difficult if not impossible for the public to have any meaningful power of scrutiny over an agency’s actions. At the rate that DHS is releasing even limited and incomplete information, it may take a decade to release all of it. It’s hardly the free flow of information contemplated under the Public Records Act.
And although SN&R asked repeatedly for a more complete written explanation of why public inspection of radioactive license files posed a security risk, none was ever offered.
Oddly, the agency had been claiming all along that the material in question posed no human health risk. Indeed, some critics of the Romero bill and other legislation claimed that most of the material in question posed no more risk to human health than flying in a plane or eating a banana—activities that expose a person to a higher-than-average amount of background radiation. And if the “hormesis” theory has any merit, should we not welcome the occasional dirty bomb?
Not surprisingly, DHS’ claim of a terrorist threat to justify withholding public information was met with skepticism. Hirsch, also filing a Public Records Act request, warned the agency not to get carried away and to withhold only information that posed a true terrorist threat. “We want to know about decommissioned sites, which the department asserts are safe and therefore cannot possibly be a terrorist risk,” he said.
Romero was more pointed in her assessment: “Is it safe to put in your kids’ braces, or is it bomb-making material? Which is it?”
Steve Redeker, site manager at the former Rancho Seco nuclear-power plant in Sacramento, said he understood concerns about terrorism and the need to be careful with information regarding nuclear materials. “There are a lot of crazy people out there. You don’t really want to give them ideas,” he said.
Still, he said that the regular shipments of slightly contaminated material from the shuttered plant—mostly steel pipe, light bulbs, electrical wire, valves, pumps and other building materials—are “a matter of public record.”
When asked if anything could be intercepted from Rancho Seco on its way to the licensed low-level-radioactive-waste facility in Utah and used as a terrorist weapon, Redeker said it was extremely unlikely.
“It’s not stuff you could make a dirty bomb with. For that, you would really need to get your hands on nuclear fuel,” such as the fuel rods from a power plant. And, though some enterprising terrorists could pack contaminated electrical wire and light bulbs around an explosive charge, the only danger would be from shrapnel.
Nearly two months after its initial request, SN&R was informed that some of the files were ready for inspection. A total of 51 files out of 1,400, each pertaining to a specific decommissioned facility, had been reviewed and approved for release.
Many of the files appeared to be only one or two pages. Most of the pages were redacted in some way. But it was not always clear why certain information was excluded. Often, the names and addresses of “waste brokers”—companies that dispose of hazardous waste—were blacked out even though it is easy to find this type of information on the Internet. Sometimes, the names of people who were involved with the license termination were blacked out. Sometimes, phone numbers were. The most commonly excluded pieces of information were the brand name and serial numbers of the instruments used to detect leftover radiation on the site.
And most of the files appeared to be incomplete in some way. Often, the files contained no more than a letter telling a licensee that its license had been terminated. No mention was given of what kind of material was in question or what steps had been taken to ensure the site had been cleaned up to legal levels. None of the files showed where radioactive material eventually ended up.
DHS officials admit that the agency has not kept very good records in the past, even as recently as 1991 and 1992, the period of the files that DHS has released so far. When asked why the agency was going to the trouble of redacting the brand names of radiation detectors and waste brokers and what the possible security implications were, Reilley, DHS’ deputy director, said he wasn’t certain. He did say that there might be “legal considerations,” although legal concerns had not been mentioned in any of the prior correspondence with DHS’ legal counsel.
None of the files even mentions a millirem dosage, even though the agency uses a millirem standard to determine whether a site is clean enough. In some cases, it is possible for a person with some training to eyeball the information that is there and get a rough estimate of the dosage. Hirsch, upon reviewing the documents, said that none of the materials reportedly released even approaches the level of 25 millirem or even the 5-millirem cap that the Kuehl bill would have imposed.
DHS employee David Weseley said that the 51 files the agency turned over are “probably representative” of files on the other thousand-plus decommissioned sites.
Despite the veto of her bill, Romero is not giving up. She already has reintroduced legislation banning nuclear waste from landfills, this time as Senate Bill 13. She also plans to press the agency on its reluctance to give up information during hearings early in February. “We want answers, and we can’t get them. It’s like pulling teeth,” said Romero.
Although DHS previously has said that waste as high as 100 or even 500 millirem may have been placed in landfills in the past, there seems to be no evidence, so far, that it ever happened. Nor is there evidence that dumping even as high as 25 millirem ever occurred.
Romero, Hirsch and other critics of DHS see two possibilities. One is that the agency stretched the truth about what it allowed under the old rule and is now attempting to put in place a new rule that would allow widespread dumping of radioactive waste at levels that the department never allowed in the past—effectively deregulating such waste and giving a multi-million-dollar gift to the nuclear industry.
The other, said Hirsch, is that there really are a few “hot” sites that were decommissioned and that the agency is taking pains not to release any information about them, claiming a “September 11” exemption.
Hirsch thinks the agency has painted itself into a corner. “Either way, they are lying,” he said.