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168 Fuel Cycle to Nowhere New Mexico’s Successful Efforts to Gain a Role in Decision Making Regarding WIPP Beginning in the late 1970s, the State of New Mexico began to play a far more assertive role in the development of WIPP. The New Mexico Radioactive Waste Consultation Act created an executive task force, which led and coordinated the state’s activities and policies regarding WIPP and its interaction with DOE and other stakeholders.74 The state began to use an effective combination of state legislation, initiatives by the task force, political pressures through the New Mexico delegation in Congress, and federal court litigation against DOE to exert influence over WIPP’s development. The state’s hopes of gaining legal authority to block the facility were unsuccessful; the Justice Department’s opinion effectively foreclosed that option, unless Congress was willing to enact a statute to give the state such authority, which it declined to do. And, as evidenced by its congressional delegation’s support of WIPP when it was in danger of being cancelled by President Carter, the state over time came to support the project, provided that key conditions could be assured. The state developed a number of ways to play a significant role in establishing those conditions and to influence evolving decisions about the facility. The 1978 Memorandum of Understanding and the Environmental Evaluation Group In 1978, New Mexico successfully pressured DOE to sign a memorandum of understanding (MOU) with the state concerning WIPP. Among other matters, the MOU established an Environmental Evaluation Group (EEG), which evolved into an independent scientific body that provided technical expertise on WIPP issues. DOE’s charter for EEG established it as a scientific body that would “conduct an independent technical evaluation of the [WIPP] Project to ensure the protection of the public health and safety and the environment.”75 Pursuant to a DOE contract with the state, EEG was funded by DOE but housed in the New Mexico Environmental Improvement Division, part of the New Mexico Health and Environment Department.76 Subsequently, Congress specifically authorized EEG in the National Defense Authorization Act, fiscal year 1989. The act defined EEG as “conduct[ing] independent reviews and evaluations of the design, construction, and operations” of WIPP.77 It provided that EEG would be run by scientists who were well known within the field and were “free from any biases related to the activities of the WIPP, and . . . widely known for their integrity and scientific expertise .”78 DOE continued to pay for EEG’s work throughout its entire existence with the understanding, later observed in practice, that neither federal nor state actors would attempt to bias the group’s conclusions.79 In order to formalize EEG’s independence from both state and federal influence, the act required that the secretary of energy contract with a state research university, the New Mexico Institute of Mining and Technology , to house EEG, thus removing it from the New Mexico Health and Environment Department.80 Deputy Secretary of Energy John O’Leary, who had served as New Mexico’s secretary of natural resources before taking his position at DOE, was instrumental in estab- WIPP: The Rocky Road to Success 169 lishing EEG. He realized from direct experience that, even if the federal government had constitutional authority to build a repository on federal land at Los Medanos, the state had political, legal, and practical capacities to impede or even thwart federal development of the repository. Accordingly, he promoted the formation of EEG in order to accommodate the state.81 EEG became a trusted and independent source of technical expertise.82 Its willingness to critique flaws in the WIPP project ultimately worked to reassure the state and other stakeholders of the repository’s technical soundness and to bolster the credibility of the project. The group, as stated in its reports, was “to conduct an independent technical evaluation of the [WIPP] Project to ensure the protection of the public health and safety and the environment. . . . EEG performs independent technical analyses of the suitability of the proposed site; the design of the repository, its planned operation, and its long-term integrity; suitability and safety of the transportation systems; suitability of the Waste Acceptance Criteria and the compliance of the generator sites with them; and related subjects.”83 EEG was respected for its technical advice and its “independent scientific oversight” for the duration of its existence (1978–2004).84 The U.S. Office of Technology Assessment noted in 1991 that “EEG’s full-time...

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