The night Martinsville was rejected as a site for a nuclear waste disposal facility will long remain a vivid memory for Kathy Tharp. A member of the Concerned Citizens of Clark County, Tharp was an ardent opponent of the state's plan to build a disposal facility for low-level radioactive waste. She and the other members of the Concerned Citizens fought the Illinois Department of Nuclear Safety (IDNS) for five years.

Following a full day of public deliberations that came at the end of months of public hearings in Martinsville, the independent commission responsible for determining if the site was suitable for disposal of nuclear waste voted unanimously against the site.

Tharp was thrilled. "I remember literally jumping for joy because I expected the corporate influence and power to prevail. ... I remember I went home and marveled that the system could work," she said.

But for IDNS, the contractor selected to build and operate the facility and generators of nuclear waste, the commission's ruling came as a crushing defeat. Five years and $90 million were spent getting them into and, then, out of Martinsville.

They're poised to begin again, but this time out the rules will be different. They've come up with a new strategy — one they hope will succeed in siting a disposal facility. But some critics of this new strategy fear it will succeed at the expense of the interests of concerned citizens. Others worry that flaws in the new process will again mire the selection of a site in controversy.

Illinois is looking for a home for more than 100,000 cubic feet of low-level radioactive waste generated annually here and in Kentucky. Illinois and Kentucky joined efforts to manage their low-level nuclear waste in 1984, four years after Congress said the states were responsible for disposing the waste generated within their borders. The waste includes a broad spectrum of materials from test tubes and items of clothing worn by nuclear power plant workers to non-fuel reactor components. Illinois ranks second in the nation in volume of waste produced, while Kentucky generated just 2,300 cubic feet of low-level nuclear trash in 1991.

Martinsville proved a costly mistake. The geology and hydrology of the proposed site was complex, costly to map and difficult to understand. And in the course of things, the department became mired in political controversy. As a result, an independent commission, headed by former Illinois Supreme Court Justice Seymour Simon, was created to determine if the site was safe and suitable for disposal of nuclear waste. The Simon Commission held 72 days of public hearings in Martinsville. On October 9, it deliberated in public and voted. The new process turns site selection responsibilities over to a seven-member task force made up of the directors of IDNS, the Illinois Environmental Protection Agency, the Department of Energy and Natural Resources (DNER) and four members picked by the governor and confirmed by the state Senate. Also involved are the Illinois State Geological and Water Surveys (a division of DNER) and Chem-Nuclear Systems Inc., the contractor selected to build and operate the waste disposal facility. The task force is charged with establishing siting criteria. Once the criteria are created, the IDNS director is replaced by a new member. The surveys are to identify at least 10 locations that appear likely to meet the criteria. Special consideration is to be given to sites that may be volunteered by local governments

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or private parties. With task force approval, Chem-Nuclear will winnow the list to three sites. Chem-Nuclear is given the responsibility to select one of those sites and characterize its geology and hydrology. After notifying the task force of its choice, the task force is abolished. IDNS has final licensing authority.

Most notably the new siting process strips local governments of the power to reject a disposal facility; it places the burden of proving that a site is unsafe on the shoulders of opponents. And at least one observer says that although an attempt has been made to keep IDNS out of a sticky conflict of interest, it doesn't go far enough.

The new search process is spelled out in legislation signed into law by Gov. Jim Edgar in March. House Bill 1918 (PA 87-1267) was approved in the waning hours of a lameduck General Assembly in January, a move that raised the ire and suspicions of environmentalists and editorial writers. The bill did not have a named sponsor. IDNS says the bill was fathered by Chem-Nuclear and Commonwealth Edison, the largest generator of radioactive waste in Illinois. There was no committee hearing, no debate, and the legislation arrived on lawmakers' desks less than half a day before the vote was taken. It received the minimum number of votes to pass both the House and Senate.

The Evanston-based Nuclear Energy Information Service (NEIS) complained that rushing to get a new "dump bill" through the legislature "dumps the democratic process." NEIS was founded in 1981 to provide the public with information on nuclear power, radiation hazards and alternatives to nuclear power. In January, it was one of a dozen environmental organizations that urged Edgar to veto the legislation.

"If the positions represented in the bill are truly needed and worthy of enactment, then they will withstand any public criticisms and scrutiny in the light of day — during full debate in the next legislative session of the legislature," said David Kraft, president of NEIS. Groups like NEIS hope to see the new process gutted this legislative session. Two bills have been introduced to do just that, but their prospects for success are bleak.

Clark Bullard, a University of Illinois mechanical engineering professor and long-time activist in environmental causes, is the chairman of the Central Midwest Compact Commission which represents Illinois and Kentucky. Bullard hoped the governor would veto the new siting bill approved in January because it strips local governments of the power to block the state from locating a disposal facility near or within their borders. A veto mechanism for local communities had been part of the state's radioactive waste management law since it went on the books in 1983. At the outset of the first search, IDNS assured the public the site would be "politically acceptable" and "technically excellent."

Bullard says giving local government the power to veto a site strengthens public confidence in the nuclear industry. He says the nuclear industry, including the low-level radioactive waste industry, suffers a credibility problem. Bullard says public confidence has been hobbled by the experiences state and local governments have had with leaking low-level nuclear waste dumps in Sheffield, Ill.; Maxey Flats, Ky., and West Valley, N.Y. The Illinois, Kentucky and New York dumps closed in the mid-1970s. Water contamination problems surfaced at all three dumps. That knowledge led Illinois to outlaw shallow-land burial of radioactive waste. The disposal facility planned for Illinois will feature above-ground disposal vaults constructed of reinforced concrete.

Bullard believes that before a community will accept a disposal facility, it must be confident the facility will be safe. "We have to respect people's intelligence and ability to decide for themselves whether a technology's benefits outweigh its risks to the community," he says. Bullard says the power of eminent domain is not needed to site the planned disposal facility. He says, "If it was a technology that just literally had to go in one place and it couldn't go anywhere else in Illinois, then you would need the police power of the state."

Bullard's concern over the role of citizens in siting a waste facility is echoed by Joanna Hoelscher, executive director of Citizens for a Better Environment. "In a democracy, citizens should have a right to determine the environmental circumstances around which they're living," she says.

Al Grosboll, Gov. Edgar's environmental adviser, says the governor is sensitive to the concerns of the environmental community. Grosboll says, "We had a pretty serious debate internally [on the local veto issue]." But he says it was clear that legislative leaders felt strongly about the matter, and a bill giving local government the power to reject hosting a site would not win approval in the new session. Grosboll says Edgar felt compelled to approve the legislation as drafted. "The most important thing we can do is get on with it," he says.

The governor's office, the department and waste generators feel pressured to move ahead because come July 1, 1994, Illinois won't be able to ship its trash to an out-of-state dump. A low-level radioactive waste dump in South Carolina will no longer accept waste from outside its compact. That means Illinois and Kentucky generators will have to store their wastes until the Illinois facility is up and running. IDNS says Commonwealth Edison, Illinois Power and other generators of nuclear waste should find a place to store the waste until a disposal facility opens its doors. In a report to legislative leaders, the agency says the state will need almost 600,000 cubic feet of interim storage capacity before the disposal facility becomes available around the turn of the century. Utilities should have enough storage capacity for four or five years, but smaller generators will face difficulties. The agency is looking into the possibility of building a temporary storage facility for generators that lack ample storage space.

So, IDNS sees the problem from a pragmatic point of view. And the agency is taking one of the lessons of Martinsville very much to heart. Agency Director Tom Ortciger says the new process will be propelled by science, not politics.

The Martinsville City Council was the only local government in the state to say it wanted the facility. As it turned

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out, the proposed site sat atop groundwater supplying drinking water to Martinsville and the nearby community of Casey. But Terry Lash, the former director of IDNS, told the General Assembly during his reconfirmation hearings in 1989 there were no aquifers at the site. Later, the department said the groundwater at the site was not connected to the public water supply. The Simon Commission's written report on Martinsville said, "Instead of science discovering a site that was politically acceptable, politics presented a site which science was asked to justify. Thus politics — not science — was the engine that drove selection" of the Martinsville site. The commissioners concluded that the scientists characterizing the site's geology and hydrology faced pressure to tailor their findings to suit the department and then-Director Lash.

George Mueller, a lawyer who represented the Concerned Citizens of Clark County before the Simon Commission, agrees science should be the determining factor in siting a facility. "I was one of the people after the hearings in Martinsville [who] suggested that any new legislation probably had to eliminate local approval as a criterion because that requirement pretty much would guarantee that we would not get the best available site," says Mueller.

Compact Chairman Bullard says the Simon Commission did not advocate abandoning the power of local consent. "Just because you have local veto doesn't mean you're going to throw science out the window in every case .... I think you can have local veto, and you can have good science driving the process," he says.

While attorney Mueller applauds removing local veto power, his critique of the new process falls far short of praise. He is "shocked" that a person or community objecting to the site must shoulder the burden of proving the site unsafe. "Clearly, the protection of the public mandates that the burden of proof and the burden of establishing safety has to be with those who propose, designate or characterize a particular site. When you're dealing with long-lived radionuclides, the health effect of which is not yet understood . . . we've got to presume that these materials are unsafe and we have to presume that any site starts out as being unsafe until proven otherwise," he said.

IDNS Director Ortciger says the new siting process provides for the first time a mechanism that allows people to challenge the license outside the courts. "This is, I think, very innovative in allowing public participation at a much stronger level than had ever been anticipated in the past .... It's new and it's an expansion of public participation," he says.

The opportunity to object comes at the point when IDNS announces its intention to issue a license to the contractor. There is a 30-day period for filing an objection, and IDNS has the responsibility for assigning a hearing officer who will make a recommendation on the merits of the objection to the agency.

Hoelscher of Citizens for a Better Environment says a hearing at the licensing stage is too late. She favors giving oversight to an independent body like the Simon Commission. Site proponents shouldered the burden of proof in the Martinsville case.

Perhaps the most powerful lesson of Martinsville involved the two conflicting responsibilities assigned to IDNS. It was to find a site in a community willing to host the facility. Simultaneously, it was responsible for licensing the facility. In other words, IDNS was promoter and regulator.

The new process removes at least some of that conflict. IDNS is to help develop siting criteria, then it steps back until a license application is submitted. IDNS, however, selected the contractor, Chem-Nuclear. That concerns compact commission chair Bullard. He says that if a license is granted a few years from now, the opponents will say the process had been a sham. On the other hand, Bullard says that if the license is denied, people will say, " 'You guys must not have been watching them closely enough because otherwise you would have seen that this site wasn't going to be licensable and you should have shut off their contract earlier.' It's a no-win situation, and Illinois is headed for that." IDNS says it is comfortable with the change.

While Bullard says the new process is not ideal, he adds, "The bottom line is that the compact commission is pleased to see that Illinois is serious about living up to its responsibilities under the compact, and that it's moving promptly to reinstate a siting process in the wake of the decision at Martinsville."

It's quite likely the process of siting and licensing will continue to evolve over the six or more years it will take before a disposal facility could begin accepting waste. Already Gov. Edgar has recommended changing the process to allow more public participation as siting criteria are established. It appears likely the task force will be expanded to include an environmentalist and a representative of local government. And the siting criteria probably will be broadened so that issues other than geology, hydrology and hydrogeology may be considered. Edgar says criteria such as land use, economics and transportation should be weighed. The governor also favors extending the period of time allowed to file an objection to the site from 30 to 90 days.

The administration, IDNS, Chem-Nuclear and waste generators will almost certainly block attempts to change the process more significantly, and spokesmen for Edgar and the agency say other changes won't win the nod of legislative leaders on either side of the aisle.

Meanwhile, Kathy Tharp advises local communities to prepare for a long, exhausting fight should an area near them appear on a list of potential sites. She doesn't like the new process at all. She says it doesn't protect the interests of people like the Concerned Citizens of Clark County. She says, "You need to educate yourselves quickly and try to come up with enough money to sue the state and hang this thing up in the courts .... You have to fight like dogs because that's how you're going to be treated by the great State of Illinois." *

Celeste Quinn is a reporter for public radio station WILL-AM 580 in Urbana. She has covered the issue of low-level radioactive waste for several years, including reporting on the Simon Commission hearings from start to finish.

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