Project Rio Blanco Goes Ahead Despite Environmental Challenges

On May 17th the Atomic Energy Commission, in conjunction with the CER Geonuclear Corporation, exploded three 30 kiloton nuclear devices beneath Rio Blanco County in northwest Colorado in an experiment designed to test the feasibility of releasing natural gas trapped below the earth's surface. Repercussions from the project, both figurative and literal, may extend into the distant future. Prior to the blast, numerous objections were raised during the public comment procedure under NEPA and in a hearing held by the Subcommittee on PublicLands of the Senate Interior and Insular Affairs Committee, chaired by Senator Haskell of Colorado. The merits of the project were also argued in a lawsuit filed in state court by several environmental groups which challenged the grant of a permit by the Colorado Water Pollution Control Commission for the disposal of radioactive waste.¹

Project Rio Blanco is the last of three undergroud explosions comprising the first phase of a three part program developed under the Plowshare Program, which seeks to find peaceful uses for nuclear explosives. The AEC claims that later phases will be undertaken only if Rio Blanco proves successful and if private industry remains interested in paying most of the costs. If undertaken, the second phase will involve 12 to 30 additional detonations testing the feasibility of further development. A third phase would require 60 to 300 nuclear explosions to create 20 to 60 producing wells, a number intended to justify the construction of a major gas pipeline into the area. Full development of these natural gas reserves would involve 400 to 1400 detonations throughout the Rocky Mountain region over a period of about 35 years. The AEC believes that there is approximately 300 trillion cubic feet (tcf) of recoverable gas in the area, and that if the experiments are successful 1 tcf per year could be made available, a significant contribution to the present national gas consumption rate of almost 25 tcf per year.

Project Rio Blanco itself does not appear to be particularly dangerous, although at least one expert believes that radiation will eventually be carried into the Colorado River by underground water. The project also required the withdrawal of 360 acres of public land and resulted in over $30,000 in property damage from the seismic disturbance in a sparsely populated area.

Much more criticism has been leveled at the risks attendant to phases two and three and to full field development. Projected risks of radiation and property damage associated with these later phases, in addition to doubts that consumers would accept gas produced by nuclear means, caused critics like Senator Haskell to question the value of undertaking the preliminary test phases at all.

Another major challenge to the program centered on the availability of a reasonable alternative to the nuclear method for releasing the trapped gas. Hydraulic fracturing, a technique which involves pumping liquid (usually water) underground to force gas out of the rock formations, is used to release most underground gas. The problem in Rio Blanco and in most of the Rocky Mountain region, however, is that the rock is of very low permeability and is extremely difficult to fracture. However, critics of the Plowshare Program contend that the same amount of money invested in developing better techniques for hydraulic fracturing would produce better results without the risks associated with nuclear explosions. Even the AEC admits that price levels sufficient to justify nuclear methods would probably be adequate to support massive hydraulic fracturing. One respected expert testified before Senator Haskell's Subcommittee that he was willing to give "10 to 1 odds" that conventional techniques would be successful.

The AEC responds by quoting other experts who claim that successful hydraulic techniques are years away and that both methods should be developed and tested. The AEC also points to the high interest in using nuclear methods, arguing that if hydraulic fracturing were feasible, there would be little or no industrial support for nuclear stimulation. Although there is probably some merit to this argument, since private industry paid 85 percent of the costs of Project Rio Blanco, it is also true that earlier research, particularly the first explosion, was heavily subsidized by the AEC. Thus nuclear methods have the added attractiveness of AEC funding and promotion. In addition, it is not clear that many companies are as interested in nuclear methods as the AEC's contractor for Rio Blanco; the hearing record included a number of articles by industry engineers relating the success of hydraulic fracturing methods in tight formation areas.

The State Court Decision

The Colorado state court decision, although it allowed the blast to take place, may be more significant for its jurisdictional holding than for its review of the merits of the project. The matter reached the state court because Colorado law required a permit from the state Water Pollution Control Commission before radioactive substances could be discharged into state waters. "Water" was defined to include underground accumulations, and since the blast was expected to reach some underground water, a permit was required. Before issuing a permit, the statute required that the Commission make an investigation and find beyond a reasonable doubt that the discharge would cause no pollution, or that any pollution that did result would be limited to a specified area from which there was [3 ELR 10105] no significant risk of migration. The Commission also has to find that the discharge is justified by public needs.

Before considering the merits of the challenge to the agency's decision to grant a permit, the court had to decide whether the plaintiffs had standing and whether the state had the authority to regulate an activity largely controlled by the AEC. The court dispensed with standing summarily; given the importance of the issues to everyone in the state, the judge said, the plaintiffs need only be Colorado citizens. The jurisdictional defense raised by the private defendant CER proved more troublesome. The plaintiffs had argued that there were basic issues of state sovereignty involved that could not preempted by federal regulation.² The Court ruling did not fully accept plaintiff's position, but it did find jurisdiction based on an agreement between the AEC and the state. Under the terms of the agreement, the AEC agreed to discontinue its regulatory authority in Colorado with respect to fissionable materials and related by-products in quantities not sufficient to sustain a nuclear explosion. This interpretation of the agreement surprised lawyers for both sides; it would allow numerous states with similar agreements to exercise jurisdiction over Plowshare activities.

Substantive review focused on three issues: whether the Commission had undertaken an investigation as required by the statute, whether the Commission had made sufficient findings in support of its decision, and whether the evidence supported the beyond-a-reasonable-doubt standard. The court found little substance to the first two complaints, and found that an investigation supported by sufficient findings had been conducted. The court further determined that the Colorado Administration Code authorized judicial review based on the substantial evidence test, and that this standard was not changed by the Commission's duty to make findings under the beyond-a reasonable-doubt test. Based on the substantial evidence standard, the court upheld the Commission.

The plaintiffs asked for an injunction pending an appeal since the decision came only three days before the detonation was to occur. The judge denied the motion, relying on his denial of the request for a permanent injunction. No further appeal was brought since the appeal bond would have been quite substantial and the time was too short for any massive fund raising effort.

Despite the loss on the merits, the plaintiffs were not totally dissatisfied. The grant of jurisdiction was an important ruling that provides a foundation for further litigation if larger projects are attempted. However, the AEC has the authority unilaterally to modify its agreement with Colorado to discontinue regulation of small amounts of fissionable material, thereby eliminating the provision cited in the court's opinion as the basis for jurisdiction. Eventually, the state courts may have to decide the broader arguments advanced by the plaintiffs for jurisdiction.

The Decision Not to Bring a NEPA Suit

Anyone familar with any of the recent litigation surrounding the adequacy of environmental impact statements under NEPA will recognize the potential for such a suit in the context of the Rio Blanco project. As a phase in the development of a much larger program, the situation is roughly analagous to the facts in the recently decided Scientific Institute for Public Information v. Atomic Energy Commission,³ which held that NEPA applies to the development stage of the Liquid Metal Fast Breeder Reactor Program. Numerous environmental groups were active in the comment process following the publication of a draft environmental impact statement, and the questions surrounding the feasibility of non-nuclear alternatives presented at least the possibility of a lawsuit.

However, several factors resulted in a decision not to bring such a suit.The opportunity for a challenge of the entire program that was afforded in SIPI was not present here. The AEC maintained throughout its development of Project Rio Blanco that the agency was not committed to future phases of the program. Although the AEC claimed that the project would very likely be successful, it also insisted that any future action would hinge entirely on the results of this blast. The agency's position was bolstered by the lack of any request for further funding in the fiscal 1974 appropriations, whereas the fast breeder reactor program has been receiving continually larger amounts of federal funds, in response to a presidential mandate for its accelerated development.

Also, unlike the situation in many NEPA cases, the AEC did make a good faith effort to answer criticisms of its impact statement. It prepared detailed responses to initial public inquiries and a second set of responses to a second round of public comments and criticism. Although it might be said the responses were in the nature of post hoc rationalizations rather than actual elements of the decision-making process, the fact that the project was not irreversible until the blast went off would probably go a long way toward satisfying a court of good faith.

Second, the Rio Blanco project was an unusual situation in that most critics of the program were so certain it would fail that it seemed worth assuring the demise of any plans for later large-scale development by letting the AEC proceed with the demonstration. The costs in minimal environmental damage now were deemed a fair price for the prevention of much more harmful explosions later. Past experience with the two previous Plowshare explosions indicated that the cost of extraction far exceeded the value of the gas, even at today's higher prices.

Finally, the technical issues were so complicated that it would have been necessary to present numerous technical experts, an expensive and difficult organizational task. Although several highly respected men in the field had doubts about the program, the prospect of taking on a [3 ELR 10106] project so near completion made some of them less than anxious to testify. The same consideration, that much money had been invested and the project was near completion, would also have weighed heavily against any request for a preliminary injunction. The problem was compounded by the small likelihood of extensive environmental damage from this particular phase of the project.

Final evaluation of the results of Project Rio Blanco will not be available for many months. The first drilling into the area of the explosion will occur in August or September. Re-entry will require another permit from the Colorado Water Pollution Control Commission, raising the possibility of further litigation. Interpretation of the findings will also take time. Senator Haskell has concentrated his efforts against future nuclear projects into seeing that a program designed to compare the relative merits of possible hydraulic and nuclear methods is included in the AEC authorization. Environmentalists also will be much more concerned about subsequent attempts to implement a project the scale — and dangers — of which far exceed those of the May 17th blast.

1. Reporter's transcript of the oral bench ruling available on request from the ELR Digest Facsimile Service (Citizens For Colorado's Future v. Water Pollution Control Commission, Civil Action No. C-36127 (Colo. Dist. Ct. May 14, 1973) 43 pp., $4.30.)

2. The arguments raised by plaintiffs in support of this position are fully discussed by one of the plaintiff's attorneys, David Engdahl, in 14 Atomic Energy L.J. 243 (1973).

3. 3 ELR 20525 (D.C. Cir June 12, 1973). See the Comment on the decision in this issue.