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Low-Level Waste Disposal 147 facility, as well as the rest of the West Valley site of which it forms a part, has been undergoing extensive remediation off and on since its formal closure in the 1970s.20 In 1975, soon after it was created, NRC began work on developing a comprehensive system of LLW regulation. This effort culminated in 1982 in NRC’s adoption, pursuant to AEA, of 10 C.F.R. Part 61 to establish “procedures, criteria, and terms and conditions” for the use of any near-surface LLW disposal techniques.21 NRC also created the current system of classifying LLW in subcategories of ascending radioactivity and hazard. These new regulations, combined with improved management oversight and more sophisticated forms of shallow land burial, soon bore fruit: by the late 1980s, the problem of radionuclide leakage from LLW disposal sites had largely been solved.22 The 1980 Low-Level Radioactive Waste Policy Act While NRC was drafting its LLW regulations, a LLW disposal crisis was looming. By 1978, the Sheffield, West Valley, and Maxey Flats facilities had been closed because radionuclides were leaking from the facilities’ protective trenches.23 In 1979, Beatty and Richland were temporarily shut down for several weeks when arriving waste containers at both facilities were discovered to be leaking.24 For a time, only one LLW facility remained operational: the Barnwell facility in South Carolina. South Carolina’s governor, concerned that South Carolina might become the nation’s LLW dumping ground, acted to limit the volume of waste that the site would accept.25 The disposal crisis was exacerbated by the Supreme Court’s ruling in Philadelphia v. New Jersey, in which the Court struck down a New Jersey law prohibiting the importation of “solid or liquid waste which originated . . . outside the territorial limits of the State.”26 The Court held that the Commerce Clause barred the states from imposing restrictions on waste based on its source unless Congress specifically provided otherwise .27 Although the Philadelphia decision did not deal directly with LLW, the implications were clear: a state opening a LLW disposal facility would have to open it to all comers, absent explicit congressional authorization to the contrary. These ongoing problems, combined with a mounting SNF waste disposal crisis, prompted the Carter Administration Interagency Review Group on Nuclear Waste Management (IRG) to devise a national strategy to deal with ever-increasing levels of nuclear waste. Among other recommendations, it proposed that the federal government assume a greater role in LLW policy. Under IRG’s plan, NRC would adopt uniform, detailed national LLW disposal regulations; Agreement States could maintain more stringent requirements above the federal baseline. Previously, Agreement States had wide discretion in regulatory programs, subject only to conformance with AEC/NRC generic radiation standards that did not include specific requirements for design and operation of disposal facilities.28 IRG also proposed that an eighteen-member presidential commission exercise siting authority for LLW facilities, with “constructive state participation ” playing a role. The commission would be made up of representatives from federal agencies with some form of jurisdiction over LLW, along with state and local representatives designated by organizations such as the National Governors Association (NGA) and the National Conference of Mayors.29 IRG’s proposals regarding LLW were unpopular with state governors and legisla- 148 Fuel Cycle to Nowhere tures, which demanded an absolute veto over any proposed disposal site.30 NGA issued a report that made a counterproposal, under which siting and operational regulatory responsibility for commercial LLW would rest with the states.31 NGA argued that siting was fundamentally a land-use decision, one best left to the knowledge and expertise of state and local governments, and that the Agreement State framework had proved that states had the requisite expertise to oversee the operation of LLW disposal sites.32 NGA justified its recommendations by asserting that the federal government had a “poor waste management track record.”33 It also argued for a cooperative approach under which groups of states would develop disposal facilities that the members of the group would share. The states lobbied Congress heavily, hoping to avoid the burden of hosting a nuclear waste facility imposed by a federal authority.34 NGA’s proposal proved influential with Congress, which had become dissatisfied with federal LLW regulation in light of its prior failings. In response to IRG’s various recommendations (described in Chapter 1)—for HLW and SNF, as well as for LLW—the House and Senate developed versions of an...

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