Fuel Cycle to Nowhere: U.S. Law and Policy on Nuclear Waste

Toward a More Risk-Based System of Radioactive Waste Classification and Regulation

Radioactive Waste Classification and Regulation 113 [if it were] solely radioactive” thereby permitting the indefinite storage of low-level mixed waste.173 Subpart N of the Mixed Waste Rule also exempts eligible low-level mixed waste from RCRA’s transportation and disposal requirements.174 EPA promulgated this exemption to reduce the administrative hurdles facing waste generators and to increase disposal options for low-level mixed waste by allowing this waste to be put into low-level radioactive waste disposal facilities.175 Implicit in the Mixed Waste Rule is EPA’s belief that NRC regulation is sufficient to protect “human health [and] the environment ” from the dangers of low-level mixed waste.176 States with delegated RCRA authority are not obligated to follow EPA’s Mixed Waste Rule and can continue to regulate low-level mixed wastes in accordance with their RCRA authority.177 Some of these states may be unwilling to surrender such regulatory control.178 The National Defense Authorization Act for Fiscal Year 1997 exempted TRU mixed waste designated by DOE for disposal at WIPP from the provisions of RCRA prohibiting land disposal of hazardous wastes without extensive pretreatment to reduce their hazard.179 According to DOE, complying with the pretreatment requirements could cost an additional $500 million in operating costs over the life of WIPP.180 Both EPA and DOE agreed that the RCRA land disposal requirements were not needed to protect either human health or the environment in the context of TRU disposal at WIPP.181 WIPP is still subject to the rest of the RCRA waste management standards, including the EPA facility standards in 40 C.F.R. Part 264.182 Because New Mexico exercises delegated RCRA authority, the New Mexico Environment Department issued WIPP’s RCRA permit and enforces compliance with it, as well as with RCRA requirements generally. In 2006, three companion bills were introduced in Congress in response to the Bush administration’s legislative proposal for a Nuclear Fuel Management and Disposal Act (NFMDA).183 Under these bills, any material owned by DOE and stored or transported in a NRC-certified container would be exempt from the RCRA provisions codified at 42 U.S.C. Section 6961(a), requiring federal government compliance with “all Federal, State, interstate, and local requirements, both substantive and procedural . . . respecting control and abatement of solid waste or hazardous waste disposal.”184 These bills, if enacted, could thus have eliminated all state authority under RCRA to regulate mixed waste stored or transported in NRC licensed containers.185 These bills did not make it out of committee. In 2007, the Bush administration proposed a modified version of NFMDA that limited the RCRA exemption “to materials being transported to or stored at the Yucca Mountain repository.” To qualify, waste must either be in transit to Yucca and contained in an NRC-licensed container or be located at Yucca and managed under an NRC license.186 The administration took the position that “the NRC licensing process is complex and comprehensive,” and that “largely duplicative reviews under a different regulatory scheme” were not needed to protect human health or the environment.187 All three bills fizzled after being referred to committee. Toward a More Risk-Based System of Radioactive Waste Classification and Regulation As this chapter abundantly demonstrates, the current U.S. nuclear waste regulatory classification system has evolved in patchwork fashion over decades, through various congressional and state statutes; federal and state and agency regulations, guidance 114 Fuel Cycle to Nowhere documents, and regulatory practices; and court decisions. The current system is a mix between classification and regulation based on: • the process generating the waste (e.g., HLW defined as wastes produced by reprocessing); • the identity of the entity generating the wastes (e.g., civilian versus defense wastes subject to different regulatory systems); • the characteristics of the facility accepting the waste for storage or disposal (e.g., repositories versus shallow land burial); • the characteristics of the wastes themselves (e.g., TRU); and • categorization based on a waste not being any other type of waste (LLW).188 Finally, the identity of the regulatory authority—NRC, DOE, EPA, and state authorities —varies depending in some cases on waste origins and in others on waste or disposal site characteristics.189 While patchwork in character, this system nonetheless provides for appropriate regulation of many types of wastes, including requirements for disposal of highly radioactive HLW, SNF, and TRU in repositories. But in other instances the existing classifications are not matched with hazard and risk. Examples include...