Q: How did you first become involved in weapons work?

A: Well, I probably, I guess first became aware of the whole, what I call the nuclear complex or weapons work those kinds of things, right out of law school. Started working with my father on uranium miner cases and those were cases where the federal government was very much involved with a underground uranium mine. Encouraging underground uranium mining on the Colorado Plateau um, the federal government was the only purchaser of uranium ore to try to manufacture uh, atomic bombs. And the workers that worked underground in this situation were very much in jeopardy. Uh, they, the scientists very early on knew about the dangers in the mines, they knew that there were real problems, health problems, and they tried to persuade the government to do something, and for many, many years nothing was done and eventually when final actions were taken uh, it resulted in being too little, too late and many men were killed as a result to their exposure to radon in the mines. As a part of preparing those lawsuits, learning about those lawsuits, I learned about the various nuclear issues in parts of the nuclear production process I guess you'd say.

Q: Why did you file the first lawsuit against WIPP?

A: Well, almost from the first day that I took office we had Secretary Walkins, Abral Walkins of the Department of Energy, saying to the state of New Mexico basically uh, we are going to open this site, and he was willing to open it whether congress agreed, whether the state of New Mexico agreed, despite the fact that a number of promises had been made to uh, the state of New Mexico over a 20 year period. Uh, and so he was very intent on doing that and I learned of his activities and I thought first it was just a bluff. I thought he was trying to move it along in the Congress as I kept visiting with my lawyers they said well he can't do it because if he does it administratively it will probably will be illegal and we're pretty sure that the courts will declare it illegal and I didn't think he would do anything that rash, but he did. And in Oct. of 1991 about 9 months I took office, after a lot of bluffing and a lot of talk, uh, he declared that the site was going to be open within a week. He gave us a week notice under the contract uh, that we had, the state of New Mexico on the Department of Energy, and we went to court. And the federal judge found that it was an improper administrative action and that he was acting illegally and eventually a permanent injunction was put in place to stop uh, radioactive material from being put in the Waste Isolation Pilot Project.

Q: Is that still in place?

A: The, the, today the injunction is still in place. Uh, many of the issues that were still a part of those hearings in 1991 are still at issue. And we may or may not in the next couple months have a hearing on those issues depending on the positions of the parties and how things things move forward.

Q: Can you talk about the amendment lawsuit and how it is connected to the one in 1991?

A: Well, the, the current appeal that is pending of the certification process, the way the WIPP act worked is the lawsuit that was, uh, that arose out of the process to approve WIPP to set the standards. Uh, that certification process took place and you have to have an appeal process in the courts to the court of appeals. And so that's the process we are following right now. We don't get a hearing in the district court. Uh, it's an administrative appeal on the record in the court of appeals. And it's basically a challenge to how they carried out the certification process. Um, I believe that the court standard is, whether it's arbitrary and capricious, is to how they acted in terms to moving forward with that administrative process and we've filed a length brief talking about how we feel that they didn't have sufficient evidence to go forward at that point on terms of the certification.

Q: (Interruption for phone call.) Who was on the phone?

A: Vice President Gore.

Q: He calls all the time?

A: Just calling to check in.

Q: A brief sound bite about it being the EPA that you were suing.

A: The WIPP act set up a process for the Environmental Protection Agency to approve uh, radiation standards and to give a final certification for the bringing in of radioactive waste. And that is what is at issue in this current lawsuit. Is the uh, certification process, and unfortunately rather than getting a trial in court where you can put in evidence, you have to take it to the court of appeals and it's based on administrative record which is a very tough uh, it's very tough to win in that kind of situation.

Q: Is this an automatic thing? Why is the appeal happening?

A: Well the appeals happening because we believe the certification process uh, hasn't worked out the way it should, that there hasn't been substantial evidence to support their certification. And that's what our appeal is all about.

Q: Are they tied to safety at all?

A: No I think this is a, this is clearly a issue of health and safety, it is not an abstractive principle of law. It really comes down to, to whether or not the science is sound, and whether or not they follow all the legal principles and by following legal principles you're going to get to health and safety and that's why we're doing what we're doing.
 
Q: Can you give us an example?
 
A: The re- the one of the issues here is the um, the integrity of the repository so the issue is over time uh, have they made judgements about human intrusion into the particular repository they have designed and in this particular case we believe they haven't looked at a number of scenarios like air drilling which is know in the industry, it's something that's been out there for a long time and we believe that that might actually violate the standards so we are urging the court of appeals take a look at that and in light of the certification process.
 
Q: Describe what air drilling is? And why more waste would come up?
 
A: My understanding, I'm not a scientist, I'm not an expert on this but when you drill with mud you have the ability to keep what you're, what you're drilling through down in the ground and with air drilling you extract a lot more of what it is that you are coming in contact with. And so that in this kind of scenario if you puncture into the side you then would be pulling things up into the surface area, violating the standards and therefore put in jeopardy, health and safety issues.
 
Q: EPA has decided that air drilling is not important?
 
A: Well, I think they dealt with it pretty short shrift. Many of the issues that we raised, the scientific issues that we raised with experts, credible experts, they either didn't deal with them or they just pushed them aside and I think that's what goes to the heart of the process is making sure that this process is one that withstand scientific scrutiny.
 
Q: Can you tell us a little about the other lawsuit? The issue of opening with out a permit is where we are going right now.
 
A: As I said earlier, the, there's a permanent injunction in place in front of Judge Pan a federal district judge in WA DC. That permanent injunction is there prohibiting any radioactive material from flowing from anyplace in the United states to the WIPP site. And one of the issues is if the waste is mixed waste, if you have radioactive waste and other hazardous waste mixed together, uh, do you need (ringing phone) hazardous waste permit?
 
Q: Stop it.
 
A: The current lawsuit that is in place right now in front of Judge Pan in Washington DC uh, has a permanent injunction which prohibits any radioactive waste coming into the WIPP site. Uh, as a part of that injunction we have asked the court to look at the broader issue of the RICRA permit itself. Which means if a party is trying to bring in radioactive waste and mixed waste together do they need a RICRA permit? My legal is, and the attorneys who work here in the Attorney General's office, is they have to have a RICRA permit in order to operate. And we are urging the court to look at all of the evidence and I believe the court will finally come on our side and say look, the mixed waste that comes into the site, your going to have to have RICRA permit?
 
Q: When will the DOE have a RCRA permit?
 
A: Well, they're looking at probably about a 9 month period so I think we're talking somewhere in the summer or early fall of 1999 in order to issue a RCRA permit. But the problem with this permitting process is that they're trying to locate some barrels of waste that are only radioactive and the more the people are working on the permit are working on the issues of whether the barrels are solely radioactive so they can be brought in without a RCRA permit, the less work gets done on the permit. And so it's all the same people and there's a great deal of delay on the permit if they are working on the issue of the radioactive waste barrels. And so I, I've believed all along that they should get the RCRA permit as a legal mater and as a policy matter and I think that's the right way to go, but they seem to be moving people around and uh, not doing this for - efficiently, and I believe most of the delays due to the Department of Energy pushing for a very quick opening of the site regardless of any of these permits.
 
Q: We need a statement saying that DOE is trying to open without a RCRA permit by shipping non mixed waste.
 
A: The Department of Energy is pushing to open the site with, without a RCRA permit and they are making the argument that the radioa- if you have only radioactive waste that then you should be able to open without a RCRA permit. I don't think that's the correct position but that is their position and it could be, depending on what a judge decides, it could go either way.
 
Q: Is this a Not in My Backyard Issue or one that affects the nation as a whole? 

A: Well, (laughs) I don't know in whose backyard we're talking about. I think that, that people in the state of New Mexico that are on the transportation route may feel pretty strongly that one, they don't want to be on the transportation route, and there may be others around the state of New Mexico that don't think we should have the site at. On the other hand if you go to Carlsbad and you talk to the business leaders in Carlsbad, New Mexico, uh, they believe this is a great site for their town, they, they push is as a, all these paid workers, 900 of them roughly at this point, live in their community, spend money in their community and that they are very happy to have these workers and have the site there. So there are differing attitudes in New Mexico and I think there are probably differing attitudes all across the country. Uh, there probably is some Not in my Backyard uh, feeling in places like Santa Fe and other northern New Mexico communities while in Carlsbad I think that they have welcomed, at least the business community, I think has welcomed this project with open arms.
 
Q: Does it have national implications?
 
A: Oh I think this is clearly a national issue. It's a national concern, I mean how we dispose of nuclear waste in a safe way, how we deal with this incredible amount of nuclear waste we have created over the years. We are leaving grandchildren, probably a trillion dollar waste bill right now if we don't do anything about it in the coming decades and that is an enormous problem for the entire country and when we talk about the waste Isolation Pilot Project we're talking a little tiny bit of the nuclear waste problem in the country. I mean we're talking 2% of the nuclear waste when you talk about the Waste isolation Pilot Project.
 
Q: You don't think WIPP takes care of the clean up of weapons complex?
 
A:  Well I think it takes care of a very small part of weapons complex clean up and when you look at the bigger picture the real question is do we have a plan, does the Department of Energy have a plan for all of it? And is it a plan that fits together coherently? Have they studied it thoroughly and is it a plan that really, truly is one that's well thought out. And I've got some real questions about that.
 
Q: Go ahead and do a tie into international solutions right now.
 
A: One of the parts of this that I studied over in France when I went over on a governmental exchange, and I studied the whole nuclear waste issue. They get 85% of their power from nuclear and so I said how are you disposing of all of this waste? And, we - especially the high level waste and they were looking to the United States. They hadn't found any solutions and so they are looking to us and they believe the Waste Isolation Pilot Project uh, is going to set a standard all over the world. And if that's the case I think it's even more important that we do it right, we do it carefully and we do it in a way that if the rest of the world is going to look at it, we're, we're not leading people down a path that we wouldn't want them to go.
 
Q: DOE has made many efforts to open but there has been quite a bit of delay. Is this a problem in terms of health and safety?
 
A: Well - (interruption) my belief is that the delay is more due to the way the Department of Energy handles the project than anything else. I mean I would lay uh, the delay on their doorsteps almost all of the time. I mean, look at, look at what the history's been. They rushed to move it forward, uh, and then a lawsuit was filed and we spent many months litigating, rather than trying to come up with legislation and move forward on that front. After we came up with legislation the way that they proceeded after that was in a very time consuming, uh, kind of way where I think the stat fol- stake holders felt very left out. I mean they could have shared information up front, very, very early with people and we didn't get things until the very end. And I think many of the stake holders in this process felt left out, they felt that they were being misused, they felt that they were being dumped on with huge amounts of scientific information with very short deadlines in which to reply. And I think the whole system could have been dev - devised in, in a different way in order to reach a much better result. Which everybody would feel much better about.
 
Q: Is the increase in the job market worth the risk of opening WIPP?
 
A: I think that, that, that there probably a substantial group of people and I don't have any idea how large in the community that is directly impacted, by WIPP that view this as very beneficial in terms of the jobs. But that isn't the only issue. I mean this is a much bigger issue for New Mexico, for the country, for all the countries around the world. So I think that when we approach it we have to think very globally rather than thinking only locally.
 
Q: With the consolidation of the nuclear waste in New Mexico, are New Mexicans properly educated about it?
 
A: One of the biggest complaints that I have with the way the Department of Energy runs their, their nuclear programs is these were all hatched in the era of secrecy. And that kind of secrecy and closed door mentality pervades 'til today. And if you look at the French who have gone down this nuclear road, they've done it with a very extensive educational program. Any problems they have they are very open, they file their reports on their computer that people can get in their homes. I mean, if we were much more open and people knew a lot more, I think people would be better educated and could make better decisions about this, but now we have a great deal of mistrust, and I think that they have helped create that distrust by the way they've handled these issues in terms of educating the public, letting the public have access.
 
Q: Didn't some of your money get taken away for the lawsuit?
 
A: There's a great deal of scrutiny given to our budget when it comes to any expenditure we make as far as litigation vis a vi the Waste Isolation Pilot Project. And so when, when a legislator from Carlsbad looks at our budget and he's on our budget committee's - budget subcommittee, he asks a lot of tough questions and every single expenditure uh, he goes through in detail and then he lets us know that he doesn't think it's a very good use of the taxpayer's money. So it, the hardest part about this is that there was a very, very substantial portion of money that was out there that the state of New Mexico, maybe not the Attorney General's office, but the state of New Mexico could have gotten to give real independent oversight for scientific comment and we really had an administration that didn't want that money. They didn't want to really play that role. And so I think the state in a very real since was left unprotected.
 

END INTERVIEW