Will voter-approved Hanford initiative withstand challenge?
Unidentifed workers at the "tank farms" on the Hanford nuclear reservation near Richland enter an area known to have hazardous vapors. AP file photo by Jackie Johnston
YAKIMA — Washington state and the federal government are already battling in court over an initiative limiting nuclear waste disposal that was overwhelmingly approved by Washington state voters last month.
But it's not the first time the two sides have fought over a voter-approved measure that bars the federal government from sending radioactive waste to south-central Washington's Hanford nuclear reservation — and the last time, the federal government won.
Supporters of the current initiative, however, contend this time will be very different.
"The legal, political and environmental landscape have all dramatically changed," said Michael Robinson-Dorn, an assistant professor at the University of Washington School of Law who is fighting to uphold the measure.
In 1980, Washington state voters passed Initiative 383, which prohibited temporary, interim or permanent storage, within the state of Washington, of any radioactive waste produced outside the state.
The federal government filed suit, and a judge ruled that the measure violated federal laws governing interstate commerce and nuclear waste. A federal appeals court later upheld the ruling.
Congress responded by giving states the authority to enact compacts with each other governing waste and shipments of waste, he said.
"Even though it was overturned, it had a different purpose and it achieved that purpose," he said. "In a very real way, 383 made a difference."
And no one should rule out the current initiative either, he said.
Initiative 297, which was approved by 69 percent of Washington voters last month, bars the U.S. Department of Energy from sending more radioactive waste to Hanford until the existing waste there is cleaned up. It also places additional restrictions on waste burial and permits, among other things.
Supporters of the initiative take issue with the federal government's plans for disposing of waste from World War II and Cold War-era nuclear weapons production nationwide. The Energy Department chose the 586-square-mile Hanford site to dispose of some mildly radioactive waste and mixed low-level waste, which is laced with chemicals.
The site also would serve as a packaging center for some transuranic waste before it is shipped elsewhere for long-term disposal. Transuranic waste is highly radioactive and can take thousands of years to decay to safe levels.
Energy Department officials have said the site's most dangerous waste will be shipped out-of-state. But the state has promised to vigorously defend the initiative in court.
Attorneys for the Justice Department declined to discuss the constitutionality of the measure, citing the court fight. But the federal government appears poised to again argue the initiative violates federal laws governing interstate commerce and nuclear waste.
This time, though, there are several caveats to the case. The drafters of the initiative wrote it specifically to bar waste imports until existing waste at the site is cleaned up, which they say does not violate federal laws governing interstate commerce.
"We're not saying it's OK if your waste is generated in Washington, you can dump it in a leaking landfill, but not if it comes from somewhere else. We're saying a leaking landfill is a leaking landfill and it's bad, so clean it up first," said Gerald Pollet, executive director of the Hanford watchdog group Heart of America Northwest, which sponsored the initiative.
The new measure also applies specifically to mixed waste, which contains both radioactive waste and nonradioactive hazardous materials. Federal law give states authority to regulate hazardous waste.
That means federal law gives Washington state broader authority to force thorough cleanup at Hanford before any more waste comes into the state, Pollet said.