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Judge Rules For Berkeley Lab In Waste Lawsuit

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June 25, 1998

By Ron Kolb, [email protected]

OAKLAND — An Alameda County Superior Court Judge has denied an environmental activist coalition’s legal challenge to proposed changes at Ernest Orlando Lawrence Berkeley National Laboratory’s Hazardous Waste Handling Facility.

In a decision dated June 18, Judge Henry Needham ruled that Berkeley Lab’s 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 state’s legal requirements.

Laboratory Director Charles V. Shank called the decision a vindication of Berkeley Lab’s vigilant oversight of health and safety programs and its careful environmental stewardship.

"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 Laboratory’s 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 respondent’s proceedings in this matter, the briefs submitted by counsel, and the arguments of counsel."

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 Needham’s 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 facility’s 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 Lab’s 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 Lab’s 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."

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