OAKLAND An Alameda County Superior Court Judge has denied an
environmental activist coalitions legal challenge to proposed changes at Ernest
Orlando Lawrence Berkeley National Laboratorys Hazardous Waste Handling Facility.
In a decision dated June 18, Judge Henry Needham ruled that Berkeley Labs
analysis and environmental review prior to making operational changes to the facility and
its "decision to prepare and certify the Subsequent Mitigated Negative Declaration is
supported by substantial evidence in light of the whole record."
Judge Needham denied the petition for Writ of Mandate, filed last June, in which the
Group to Eliminate Toxics charged that an additional Environmental Impact Report (EIR) was
required before the University of California approved the facility changes.
The Laboratory completed an EIR on Hazardous Waste Handling Facility operations in
1990. It argued successfully that this and other reviews conducted within the California
Environmental Quality Act (CEQA) were more than adequate to satisfy the states legal
Laboratory Director Charles V. Shank called the decision a vindication of Berkeley
Labs vigilant oversight of health and safety programs and its careful environmental
"We are pleased that Judge Needham acknowledged the thoroughness of our
process," Shank said. "At the same time, we think it is unfortunate that city
tax funds were expended in order to challenge the Laboratorys credibility."
He expressed "disappointment" in the fact that both the cities of Berkeley
($25,000) and Oakland ($10,000) supported the plaintiffs lawsuit. "I just wish
the City Councils had considered all the facts in this case before investing their scarce
resources this way. And I hope this will open the door to more effective communications
between the communities and our Laboratory," Shank said.
Judge Needham heard 90 minutes of testimony from both sides on June 9. He said in his
brief two-paragraph ruling that he had "reviewed the record of the respondents
proceedings in this matter, the briefs submitted by counsel, and the arguments of
The minor modifications planned at the Hazardous Waste Handling Facility will allow the
Lab to continue its handling and storage of hazardous, radioactive and mixed wastes in an
environmentally safe manner. Most of the modifications accommodate increased capacity for
on-site storage of mixed waste until off-site storage, treatment and disposal facilities
can receive it.
Berkeley Lab will now complete a permit modification request process with state
regulators, which will allow the changes to be made.
"We are proud of the review process we conducted," said Nancy Shepard,
environmental attorney for Berkeley Lab. "We think the Lab has done much more than
CEQA requires. We conducted a thorough analysis that included multiple risk assessment
scenarios. We offered a longer public comment period than was required, and we considered
all comments made to us. We also responded in writing to all comments, which was not
required by law."
The Lab was assisted in its defense by Landels, Ripley and Diamond of San Francisco,
with lead attorney Michael Zischke and Ted Stevens.
Zischke spent most of his time at Judge Needhams hearing rejecting the charges of
the plaintiffs attorney, Michael Freund. In his remarks, Freund accused the
Laboratory of failing to include certain facts in the Initial Study for the waste handling
facility changes. And he said the Lab did an inadequate job assessing the impacts of the
proposed project changes on the environment.
Zischke pointed out that an additional EIR was not required because the facilitys
changes would not create any new or substantially more severe significant impacts when
compared to prior CEQA reviews. Among the reviews were the 1990 EIR on the Hazardous Waste
Handling Facility, a 1992 Supplemental EIR, and two Initial Studies. The Labs CEQA
determination, a "subsequent mitigated negative declaration," was based on those
reviews and an additional Initial Study.
"The Lab made a very reasoned decision after a great deal of analysis,"
Zischke said. "It has a thorough and abundant record which met the substantial
evidence test for this case."
Freund spent considerable time addressing the Labs tritium emissions and their
alleged risks to families and children. Zischke called the issue a "red herring"
and reminded the court that tritium air emissions are around 1 percent of the regulatory
standards established by the Environmental Protection Agency. "Tritium is in the
environment, and it occurs naturally," he said. "But its presence is so low as
to be insignificant."