Low-level waste controversy.

Some relief may be in sight for 35 states that are scrambling to come up with low-level waste disposal facilities. The federal government is finally letting go of rebate money that can be used to build new sites.

Medical instruments, ash, dirty gloves, contaminated equipment, radioactive machine parts and other mildly radioactive types of trash are now being stored in over half of the United States by the same people who create that kind of waste.

Storage responsibilities started for waste generators July 1 when the South Carolina General Assembly closed the gates of the Barnwell low-level radioactive waste disposal facility to states outside the southeastern region. Legislators said the folks of South Carolina were tired of their state being a dumping ground for low-level waste.

Up until that time, 35 states dumped low-level waste under the clay soil of Barnwell County. Now, only Alabama, Florida, Georgia, Mississippi, North Carolina, Tennessee and Virginia will be allowed to continue using the site--leaving 28 other states to cope with the problem of no disposal facilities at all.

"We've been telling our generators for years that Barnwell was going to close," says Gregg Larson, executive director of the Midwest Low-Level Radioactive Disposal Compact, a coalition that includes Indiana, Iowa, Missouri, Ohio and Wisconsin. "The question has never been what do we do if it closes; it's always been what are we going to do when it closes."

The Midwest compact is telling generators to either store the waste on site until a disposal facility can be built or contract with private vendors for safe storage. A regional facility won't open until 1999 at the earliest, since Ohio is just beginning the process of finding a location for one. Five other compacts are requiring on-site storage as they work toward building new disposal sites.

There will be few if any health or safety problems arising from on-site storage, according to Marc Tenan, executive director of the Appalachian compact, composed of Delaware, Maryland, Pennsylvania and West Virginia. He adds that most of the low-level waste generators in the region, such as power plants, industry, government agencies, hospitals and universities, have a "reasonable amount of storage space" sufficient for several years if necessary or have contracted for storage areas. On-site storage should end in the Appalachian region when a new disposal facility opens in the late 1990s in Pennsylvania.

The Barnwell closing has underscored the need for new disposal sites for most states east of the Rocky Mountains. (Eleven Northwest and Rocky Mountain states use the Hanford Reservation facility in Washington state.)

Money for construction of new sites--about $22 million--should be on its way to states and compacts. The DOE was expected to cut rebate checks this Sept. 1. The funds had been languishing in an escrow account held by the U.S. Department of Energy (DOE) since January 1993. Meanwhile generators, compact states and the department were entangled in an Illinois district court suit.

It all began with an amendment to the federal Low-Level Radioactive Waste Policy Act that allowed states that operate facilities such as the one in Barnwell to levy a surcharge on other states, compacts and generators that dumped there. A quarter of the surcharge was put in the DOE escrow account and was to be paid out as rebates to states and compacts for development of new disposal sites.

The DOE, however, held onto final rebates to the states that were due January 1993. The Central Midwest compact filed a lawsuit in the Illinois district court in June 1993 and demanded its rebate of more than $3 million. Generators (most notably Commonwealth Edison, which paid $2.4 million to the escrow account) filed a motion contending that the rebates should be paid to generators, not the states, since they had been hit with fees that went into the escrow account.

The generators charged that Central Midwest's 18-month contract for disposal at the Barnwell facility did not fulfill federal requirements for a permanent disposal site, making the compact ineligible for the money.

District Court Judge Richard Mills agreed with the DOE in a July decision that ordered payment of half the escrow funds to the compacts "forthwith."

Caught between the generators and the compacts, DOE initially waffled on the payment decision back in November 1992 when it said that the states and compacts that met federal requirements would get the rebate money. Generators began pressuring the agency, saying they deserved the money. By March 1993, DOE said that it would pay half of the escrow money to the generators and the other half to the states. Finally, the department said in May 1994 that it would not disburse any money until the Central Midwest lawsuit in Illinois was resolved. By that time, there had been 57 requests for rebate payments--18 from states and compacts and 39 from generators.

The checks should finally be in the mail. Terry Plummer, DOE manager of low-level waste programs, said that the department planned to issue payments Sept. 1. "DOE's position was that it was prudent to wait and see what precedents were set by the Illinois case," he explained about the 20-month lag in payment.

The delay pushed the Appalachian compact into filing a lawsuit earlier this year. Director Tenan said the suit will continue since the Illinois court decision does not necessarily apply to the Appalachian compact states. Besides, Tenan says, the Appalachian compact is requesting all, not half, of the rebate money.

Dianna Gordon is an assistant editor for State Legislatures.