The Dumping Ground: Big Utilities Look to Native Lands to House Nuclear Waste

By Winona LaDuke

On September 8, the Genesis satellite crashed into the Utah Test and Training Range, right next to the Skull Valley Goshute reservation. Although NASA had some pretty spectacular plans for a soft landing, the crash of that satellite might concern more than NASA. This same area, the Skull Valley Goshute reservation, is considering providing a repository for 40,000 tons of nuclear waste. NASA nosedives of the future might be more lethal.

The area looks a bit like a set for the movie Mad Max and the Thunderdome. Forty-five miles southwest of Salt Lake City, a small community of Goshutes live on an 18,600-acre reservation. For the past 40 years, the U.S. federal government has created and dumped toxic military wastes all around them. Less than 10 miles southwest is the Dugway Proving Grounds, where the government conducts tests of chemical and biological weapons. In 1968, chemical agents escaped from Dugway and killed over 6,000 sheep and other animals. More than 1,600 of those animals were buried on the reservation, leaving a toxic legacy in the ground. “My father had 30 head,” Margene Bullcreek, a Goshute elder, remembers. “They buried them all here on the reservation, but no study was ever done on the effects of it.” Fifteen miles east of the reservation is the Desert Chemical Depot, which stores more than 40 percent of the U.S. chemical weapons stockpile and is responsible for the incineration of many chemical munitions and nerve agents.

Thirty miles northwest of the reservation is the Envirocare Low Level Radioactive Disposal Site, a dump for radioactive waste that is trucked in from all over the country. Envirocare is in the business of dumps. The firm is exploring the possibility of developing a low level nuclear waste dump in the Iraqi desert to dispose of radioactive tanks and depleted uranium weapons. Hill Air Force Base, where the F-l5s test and land, adjoins the company’s area. Finally, north of the reservation is the Magnesium Corporation Plant, a large, toxic, magnesium production facility.

The Skull Valley Goshutes were never asked about the placement of any of these facilities. In many ways, the Goshute story is a microcosm of the impact of the military on Native people and how the nuclear industry can make what is a bad thing worse.

20-year lease, 250,000 years radioactive

Disposing of military waste is a massive problem confronting the United States. The General Accountability Office, the Congressional research agency, earlier this year concluded that removing unexploded munitions and hazardous waste from 15 closed military facilities could take more than 300 years. GAO estimates the clean up cost at $35 billion, and climbing rapidly. As the Goshutes know, lots of that waste is located near Native American lands.

But for the Goshutes, it looks like the toxic problems are getting still worse.

Enter Private Fuel Storage (PFS), a limited-liability consortium of eight commercial nuclear utilities led by Xcel Energy. PFS wants to construct a private, above-ground, “temporary” dump for 40,000 metric tons of high-level nuclear waste on the land of the Skull Valley Band of Goshute. “Limited liability” means that individual utility companies are protected from suit if there is an accident in shipping waste to Utah or at the facility itself.

Running out of nuclear waste storage space at its Prairie Island Nuclear Reactor, the Minnesota-based XCEL Energy created PFS and made overtures to the Skull Valley Goshute Tribal Council. On December 26, 1996, PFS secured an agreement from the three-member Tribal Council to lease 100 acres for construction of a nuclear waste dump.

However, in March 2003, the U.S. Nuclear Regulatory Commission’s Atomic Safety and Licensing Board (ASLB) denied PFS its license to begin construction of the dump due to the risk of accidents involving F-16 fighter jets which routinely pass over Skull Valley en route from Hill Air Force Base to the nearby Utah Test and Training Range.

“This [Skull Valley project] is the bridge to Yucca Mountain,” explains Scott Northard, project manager for PFS. Yucca Mountain is the proposed site in Nevada for a permanent repository for U.S. nuclear waste. Many utilities realize that without an interim dump, and delays in construction of a permanent nuclear waste dump at Yucca Mountain, they will have to shut down their nuclear power plants.

Although the waste remains radioactive for 250,000 years, the Goshute’s lease is for 20 years initially, with an option to renew the lease for an additional 20 years. The dump would be a parking lot for up to 40,000 metric tons of spent nuclear fuel sitting in 4,000 steel containers on a concrete pad outdoors.

The federal government has spent almost $2 billion and at least two decades trying to solve the dilemma of nuclear waste disposal. The nuclear utilities seem to believe that with a “limited liability corporation,” they can solve the problem in less than a decade.

But many Goshutes do not think it is a solution at all. Xcel Energy “is just fortunate enough to have found a weak tribe that’s going to put up with them and their partner utilities and their wastes,” says Margene Bullcreek, a leader of a grassroots effort to oppose the dump.

Bullcreek is not alone. Since 1987, six other American Indian tribes have rejected proposals to site similar dumps on their land due to serious concerns over health, safety and environmental justice. Although the executive committee of the Skull Valley Goshute General Council accepted the deal in 1997, many members of the Skull Valley Band of Goshutes, as well as many indigenous organizations throughout the country, have actively opposed the agreement.

Ohngo Gaudadeh Devia Awareness (or OGDA, Goshute for “Timber Setting Community”), a grassroots group of Skull Valley Goshute tribal members directed by Bullcreek, opposes the dump in an effort to protect tradition and the health and safety of the reservation’s inhabitants. Throughout the process, OGDA has filed objections with the Nuclear Regulatory Commission, continues to engage allied organizations in opposition, and participates in lawsuits to oppose the dump.

In September 2001, a team of tribal members led by Sammy Blackbear of the Environmental Justice Foundation officially challenged the Skull Valley Goshute Tribal Council’s Executive Committee for a leadership election over the nuclear waste issue. To this day, the results of that election are in dispute, demonstrating the lack of consensus on the reservation for a high-level nuclear dump as a development option. Outstanding lawsuits concerning improper agreements between the disputed tribal leadership and PFS remain unresolved. The dispute has raged for seven years.

Betrayal of trust

The Bureau of Indian Affairs also faces some challenges. The BIA approved the lease just three days after the Tribal Council signed it. The issues of nuclear waste complicate trust responsibility, particularly when considering that the waste is lethal for a 100,000 years or so. Federal law requires that the stipulations of the National Environmental Policy Act (NEPA) be met when Indian land is being considered for business lease or commercial development. Before 1970, it was acknowledged that the BIA’s primary purpose in exercising lease approval authority was to preserve the Indian land base for the furtherance of Indian culture and values. In 1970, the Indian leasing statute was amended to broaden the list of factors that the Secretary must satisfy before approving a lease, requiring that “adequate consideration has been given to … the effect on the environment of the uses to which the leased lands will be subject.”

The Nuclear Regulatory Commission (NRC), along with the Bureau of Indian Affairs, the Bureau of Land Management, and the Surface Transportation Board, issued a Draft Environmental Impact Statement (DEIS) in June 2000, and a final EIS in January 2002.

Critics say the BIA so narrowly defined the scope of its review in the DEIS that it has likely failed to meet its trust responsibilities. In the DEIS, the BIA states that “[a]s part of its government-to-government relationship with the Skull Valley Band, BIA’s NEPA review is limited to the scope of the proposed lease negotiated between the parties, not evaluation of actions outside the lease (e.g., ultimate disposition of the Spent Nuclear Fuel).”

“The BIA cannot wish away this part of its trust responsibility,” says Tom Goldtooth of the Indigenous Environmental Network, which has been giving support to OGDA. “Ultimate disposition of nuclear waste is central to the question of whether the Indian land base will be preserved for the long term. The DEIS for PFS’s proposal cannot satisfy the requirements of the law, because there can be no expectation that nuclear waste will be removed from the facility at the end of the lease period, which clearly creates a serious negative impact on the environment and potential endangerment to the survival of its Goshute Shoshone peoples. The BIA has basically relinquished to the NRC their fiduciary responsibility to ensure that the provisions of NEPA are followed for the Skull Valley radioactive waste dump.”

“It’s pretty clear that utilities are willing to spend billions to move it [the spent fuel] out of their back yard into ours,” said then-Utah Governor Mike Leavitt, now director of the federal Environmental Protection Agency, when he was still answering to Utah constituents.

PFS continues to seek a permit for its dump. In August, the 10th Circuit Court of Appeals in Denver affirmed a 2002 district court decision that Utah state laws and regulations intended to block the PFS waste dump were unconstitutional, and that only the federal government has the authority to regulate the transportation and storage of spent nuclear fuel. August also brought three weeks of closed-door hearings for the Nuclear Regulatory Commission’s Atomic Safety and Licensing Board to consider the license for the dump.

Amid all of these legal decisions, the Goshutes are pretty concerned.

“The real issue is not the money” the Goshutes would earn from hosting the dump, says Bullcreek. “The real issue is who we are as Native Americans and what we believe in. If we accept these wastes, we’re going to lose our tradition and our need to keep the air, water and animals clean.”

Winona LaDuke is program director of the Minneapolis-based Honor the Earth Fund, and author of All our Relations and The Winona LaDuke Reader.