Elr rad waste article werner

Toward Sustainable Radioactive Waste Control:Successes and Failures From 1992 to 2002

by James D. Werner

Table of Contents

I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . 11059A. What Does Sustainability Mean for Radioactive

Waste? . . . . . . . . . . . . . . . . . . . . . . . . . . . 11059B. Are We Moving Toward or Away From

Sustainability?. . . . . . . . . . . . . . . . . . . . . . 11061C. Recommendations . . . . . . . . . . . . . . . . . . . 11061D. Chapter Overview . . . . . . . . . . . . . . . . . . . 11062

II. A Radioactive Waste Primer . . . . . . . . . . . . 11062A. Low-Level Waste . . . . . . . . . . . . . . . . . . . . 11062B. Mixed (Radioactive and Chemical) Waste . . 11063C. High-Level Waste (Including Spent Nuclear

Fuel) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11063D. Transuranic Waste. . . . . . . . . . . . . . . . . . . 11065

III. Summary of the Past 10 Years in RadioactiveWaste Control . . . . . . . . . . . . . . . . . . . . . . . 11065A. Nuclear Waste Assumptions Are Changed by

the End of the Cold War . . . . . . . . . . . . . . 11065B. Commercial Nuclear Waste Eclipsed by Nuclear

Weapons Facilities’ Waste . . . . . . . . . . . . . 11070IV. Measuring Progress Toward

Sustainability . . . . . . . . . . . . . . . . . . . . . . . . 11071A. Radioactive Waste Control in the Rio Declaration

and Agenda 21 . . . . . . . . . . . . . . . . . . . . . 11072

B. U.S. Progress and Backsliding on Rio Principlesand Agenda 21 Activities . . . . . . . . . . . . . . 110721. Management Activities. . . . . . . . . . . . . . 110732. International Cooperation and

Coordination . . . . . . . . . . . . . . . . . . . . . 11074Principle 3—IntergenerationalImpacts. . . . . . . . . . . . . . . . . . . . . . . 11074Principle 10—Openness and PublicParticipation . . . . . . . . . . . . . . . . . . . 11075Principle 13—Worker Compensation . . 11076Principle 15—Precautionary Principle,Health Effects, and Hormesis . . . . . . . 11078Principle 16—Internalize Costs and Use“Polluter-Pays” Principle . . . . . . . . . . 11078

V. U.S. Sustainability Progress and Backsliding forVarious Types of Radioactive Waste. . . . . . . 11079A. High-Level Waste and Spent Nuclear Fuel. . 11079B. Transuranic (Plutonium) Waste. . . . . . . . . . 11081C. Low-Level Waste . . . . . . . . . . . . . . . . . . . . 11082D. Mixed (Hazardous and Chemical) Waste . . . 11085E. Environmental Restoration of Contaminated

Facilities . . . . . . . . . . . . . . . . . . . . . . . . . 11085VI. Recommendations . . . . . . . . . . . . . . . . . . . 11086

A. Use Existing Institutions, Laws, and ScienceMore Effectively . . . . . . . . . . . . . . . . . . . . 11086

B. Reform or Develop New InstitutionalMechanisms . . . . . . . . . . . . . . . . . . . . . . . 11087

C. Establish a Trust Fund for Long-TermStewardship . . . . . . . . . . . . . . . . . . . . . . . 11087

D. Improve Scientific, Technical, and InstitutionalBasis for Radioactive Waste Management . . 11088

E. Explicitly Connect Nuclear Waste ManagementWith Nonproliferation Issues as Well asEnvironmental and Safety Issues . . . . . . . . . 11088

F. Openness and Democracy . . . . . . . . . . . . . 11089VII. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . 11089

I. Introduction

A. What Does Sustainability Mean for Radioactive Waste?

Using a primitive nuclear reactor, named “Chicago Pile #1,”Enrico Fermi’s team achieved a controlled chain reactioninside a squash court under the spectator stands of StaggField at the University of Chicago on December 2, 1942.1 In1992—a half century after the first controlled nuclear reac-

Jim Werner is an engineer who directs the Reprocessing Policy Project inWashington, D.C., through support by the Ploughshares Fund. He is also aSenior Policy Advisory for the state of Missouri Department of NaturalResources. He served previously as Director of Strategic Planning andAnalysis, and of Long-Term Stewardship for the U.S. Department of En-ergy’s (DOE’s) Environmental Management program from 1993-2001.Previously, he was a Senior Environmental Engineer at the Natural Re-sources Defense Council (NRDC) (1989-1993), a Senior EnvironmentalEngineer and Senior Associate at ICF Technology, a private consultingfirm (1984-1989), as well as a staff analyst for the Environmental Law In-stitute (ELI) (1982-1984) and the Port Authority of New York/New Jersey(1982). He earned a Master of Science degree in environmental engineer-ing from the Johns Hopkins University and a Bachelor of Arts degree fromthe University of Delaware. He is grateful to Robert DelTredici, Don Han-cock, Daniel Hirsch, and Richard Miller for their contributions, and the sup-port of his colleagues at DOE, NRDC, ICF, ELI, and the Port Authority.

[Editors’ Note: In June 1992, at the United Nations Conference on En-vironment and Development (UNCED) in Rio de Janeiro, the nations ofthe world formally endorsed the concept of sustainable development andagreed to a plan of action for achieving it. One of those nations was theUnited States. In August 2002, at the World Summit on Sustainable Devel-opment, these nations gathered in Johannesburg to review progress in the10-year period since UNCED and to identify steps that need to be takennext. Prof. John C. Dernbach has edited a book that assesses progress thatthe United States has made on sustainable development in the past 10years and recommends next steps. The book, published by the Environ-mental Law Institute in July 2002, is comprised of chapters on varioussubjects by experts from around the country. This Article appears as achapter in that book. Further information on the book is available atwww.eli.org or by calling 1-800-433-5120 or 202-939-3844.]

1. See generally Richard Rhodes, The Making of the Atomic

Bomb (1986); Richard Wolfson, Nuclear Choices: A Citi-

zen’s Guide to Nuclear Technology 173 (rev. ed. 1993).

ELRNEWS&ANALYSIS

9-2002 32 ELR 11059

Copyright © 2002 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

http://www.eli.org

tion on earth—the Rio Summit found no consensus on themeaning of “sustainability” in nuclear waste control. Tenyears later, our technical understanding and regulatory ef-forts have improved, even as the global situation raises newconcerns. But, we are still far from a consensus on what asustainable approach to nuclear waste might mean.

Sustainability in nuclear waste2 may, in fact, be an oxy-moron. Certainly, nuclear power is not “natural” to a greaterdegree than other human endeavors. Although uranium ex-ists naturally in the earth’s crust, the fissioning of uranium inreactors produces an almost wholly man-made ele-ment—plutonium—that does not otherwise exist on earth,3

and can produce a variety of unique environmental, health,and security problems. On the other hand, nuclear technol-ogy provides one-fifth of U.S. electrical power and a varietyof medical and scientific benefits with less evident immedi-ate and direct health impacts than other energy sources, suchas coal. If we look for sustainability in the nuclear enter-prise, not in its “naturalness,” but in the possibility of conse-quences that are tolerable for the long run, then nuclearpower might compare well with other major energy sources.A larger problem arises, however, from certain nuclear tech-nologies that hold the threat of unparalleled destruction andcalamity from nuclear explosions. In this way nuclearpower—if it involves reprocessing and recovery of fissilematerial, e.g., plutonium, may present fundamentally differ-ent risks of a greater magnitude than other energy alterna-tives. If reprocessing and recovery of fissile material can beavoided, then the risks are more comparable to other humanendeavors that result in long-lived wastes.

Few other environmental issues evoke such bipolar acri-mony between advocates and opponents. While it is diffi-cult not to marvel at the modern alchemy of nuclear power,4

it is also difficult not to be humbled by its waste productsthat persist for hundreds, thousands, or millions of years.5

Much of the waste will remain radioactive and potentiallyhazardous for longer than the experience of humans in man-aging any endeavor, much less safeguarding a material thatno longer provides any benefit, but only the threat of harm.

The meaning of “sustainability” in nuclear waste controldepends on whom you ask and how you define it. The 1987Brundtland Commission defined “sustainable develop-ment” as “development that meets the needs of the presentwithout compromising the ability of future generations tomeet their own needs.”6 The 1992 Rio Summit invoked thisdefinition in developing sustainability principles and indrafting Agenda 21. By this definition, some would arguethat generating nuclear wastes that remain radioactive forthousands of years cannot, ipso facto, be sustainable.7 Ofcourse, all major sources of energy result in some waste andpotential health effects, which must be minimized and bal-anced against the benefits. Others argue that nuclear tech-nology’s promise of “unlimited power” is sustainable if werecycle its waste into new nuclear fuel through “reprocess-ing.”8 But, nuclear power’s promise has remained an unreal-ized dream, and the reprocessing technology used to “recy-cle” nuclear waste creates additional wastes, and its endproduct, refined plutonium, and creates multiple securityproblems.9

Other definitions of sustainable development includethree core elements: economic sustainability, environmen-tal sustainability, and social sustainability.10 The principlesincorporated in the Rio Declaration encompass all three el-ements.11 A full analysis of the various principles and defi-nitions of sustainability is beyond the scope of this Article.The second part of this Article, however, introduces sev-

ENVIRONMENTAL LAW REPORTERCopyright © 2002 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

32 ELR 11060 9-2002

2. “Waste” is used here to include spent nuclear fuel and radioactivebyproduct (11e2) byproduct material as well as low-level,high-level, and transuranic (TRU) nuclear wastes.

3. Prior to this, the only known nuclear fission reaction on earth oc-curred deep in a mountain of naturally enriched uranium near Okloin the West African Gabon Republic. A Natural Fission Reactor,Sci. Am., July 1976, at 36; Alvin Weinberg Assessing the Oklo Phe-nomenon, 266 Nature 206 (1977). Of course, nuclear reactions oc-cur in stars throughout the universe, which fill the night sky, but areno closer than 93 million miles away from earth.

4. Ancient chemists, known as “alchemists,” sought to convert leadand other common elements into gold. Only later did nuclear theoryrecognize the “indivisibility” of elements composed of atoms, whichby definition is an “irreducible constituent of a specified system.”The American Heritage Dictionary of the English Lan-

guage (1978). Paradoxically, this recognition of the conventionalindivisibility of atoms led to the capability of sustained chain reac-tion splitting of atom in reactors.

5. Former Enrico Fermi collaborator and Director of the Ridge Na-tional Laboratory, Alvin Weinberg, wrote in an oft-quoted passage:

We nuclear people have made a Faustian bargain with society.On one hand we offer in the breeder reactor an almost inexhaust-ible source of energy. But the price we demand of society forthis magical energy source is both a vigilance and a longevity ofour social institutions to which we are quite unaccustomed.

Alvin Weinberg, The Nuclear Imperatives, 14 Nuclear News

33-37 (1971); Alvin Weinberg, Social Institutions and Nuclear En-ergy, 177 Science 27-34 (1972).

6. World Commission on Environment and Development

(WCED), Our Common Future 43 (1987). Named for its chair,Norwegian Prime Minister Gro Harlem Brundtland, the WCEDpublished the commission’s report, Our Common Future.

7. John P. Holdren et al., The Meaning of Sustainability:Biogeophysical Aspects, in Defining and Measuring

Sustainability 3-17 (Mohan Munasinghe & Walter Shearer eds.,1995). Holdren et al. concluded that, “[t]he remedy, of course, is toascertain what level of harm is tolerable in exchange for the benefitsof the activity that causes the harm, the cost-benefit approach that isapplied to most pollutants.” Id. See also Robert L. Gallucci, The

Continuing Relevance of Nuclear Power to the Threat of

Nuclear Weapons Proliferation, Remarks Prepared for

the Nuclear Control Institute’s 20th Anniversary Confer-

ence (2001), available at http://www.nci.org/conf/gallucci.htm.

8. Richard Rhodes & Denis Beller, The Need for Nuclear Power, For-

eign Aff., Jan./Feb. 2000, at 30-44; Richard Rhodes, Prepared Tes-timony Before the Subcommittee on Energy and Environment,Committee on Science, U.S. House of Representatives, July 25,2000; Sen. Pete V. Domenici, A New Nuclear Paradigm, In-

augural Symposium, Belfer Center for Science and Inter-

national Affairs (1997); Sen. Pete V. Domenici, A New Nu-

clear Paradigm: One Year of Progress (1998) (David J. RoseLecture, Massachusetts Institute of Technology, Cambridge,Massachusetts, Nov. 13, 1998); and Douglas S. McGregor, Re-thinking Nuclear Power, 17 The New Am. 9 (2001), available athttp://www.thenewamerican.com/tna/2001/04-23-2001/vo17no09_nuclear.htm (last visited May 21, 2002). See also Nuclear Energy In-stitute, Upfront, at http://www.nei.org (last visited Apr. 23, 2002).

9. Matther Bunn, Enabling a Significant Future for Nuclear Power:Avoiding Catastrophes, Developing New Technologies, Democra-tizing Decisions—And Staying Away From Separated Plutonium,in Proceedings of Global 1999: Nuclear Technol-

ogy—Bridging the Millenia (1999) (presented at a conferenceheld in Jackson Hole, Wyoming, August 30, 1999, to September 2,1999, by the American Nuclear Society).

10. Jonathan Harris, Basic Principles of Sustainable Develop-

ment (Tufts University Global Development and Environment In-stitute, Working Paper No. 00-04, 2000); see also Global Develop-ment and Environment Institute, Welcome to G-Dae, athttp://ase.tufts.edu/gdae (last visited Apr. 23, 2002).

11. Rio Declaration on Environment and Development, U.N. Confer-ence on Environment and Development, U.N. Doc. A/CONF.151/5/Rev. 1, 31 I.L.M. 874 (1992) [hereinafter Rio Declaration].

http://www.eli.org

eral relevant principles from the Rio Declaration andAgenda 21, as well as the question of whether U.S. nuclearwaste management has become more or less consistentwith these principles.

Paradoxically, some analysts have asserted that the rela-tively “low-tech” process of harvesting and using wood forcharcoal and other solid fuels, and the resulting soot12 pro-duced in diesel emissions and from carbon dioxide made byfossil fuels have caused the largest global energy productionimpacts on health and the environment.13 Debating the defi-nition of “sustainable development” in nuclear waste con-trol could be endless. For now, the question of whether nu-clear waste management can be sustainable (or more sus-tainable than the effluvia from other energy technologies) isspeculative and irresolvable. The current situation with sur-face storage of some nuclear waste and reprocessing ofspent nuclear fuel to produce weapons-usable material isclearly not sustainable.

In certain respects, radioactive contamination in air ordrinking water or soil may appear to be similar to a variety ofother pollutants.14 But, because some nuclear wastes, e.g.,spent nuclear fuel, can be reprocessed or “recycled”15 toproduce plutonium and other fissile materials16 that can beused to produce nuclear weapons,17 the existence, much lessthe continued production, of these radioactive wastes incombination with reprocessing is not sustainable from a na-tional security perspective, perhaps more than an environ-mental perspective. Because of the extraordinary potentialfor nuclear materials to be used for weapons that threatenpeace and security,18 this Article pays special attention to

this issue, which is identified as a critical element of sustain-able development and nuclear waste.19 As concepts of sus-tainable development become codified in frameworks forgovernance, rather than merely philosophy, it is critical thatit include not just resource depletion issues, but also the na-tional security implications of development patterns.20

Nonetheless, sustainable nuclear waste control may, in thelong run, be an oxymoron.

B. Are We Moving Toward or Away From Sustainability?

In the 10 years since the first Earth Summit in Rio, theUnited States has taken a number of actions that have movedus closer to sustainability in nuclear waste control if mea-sured by the limited number of recommendations in Agenda21. Perhaps by design, these recommendations were veryconsistent with U.S. plans and actions during the 1990s.21

When measured against the broader principles embodiedin the Rio Declarations, however, the United States hasfallen short of making significant progress towardsustainability in radioactive waste controls. For example,despite some initial progress, the U.S. decisionmaking pro-cess for radioactive waste control has become considerablymore closed. Also, attempts to address worker safety andintergenerational impacts have reversed course despitesome progress in some areas.

C. Recommendations

Several recommendations are discussed in more detail inSection VI. These include:

1. Use Existing Institutions, Laws, and ScienceMore Effectively. Before embarking on any initia-tives to establish new radioactive waste controlprograms, we should use existing mechanisms,such as the National Environmental Policy Act(NEPA),22 to the fullest extent possible.2. Reform or Develop New Institutional Mecha-nisms. New post-Cold War challenges will likelyrequire new institutions. For example, an opera-tional line management organization, i.e., notsolely a policy analysis group, will likely be re-quired to build and operate major new facilitiesfor plutonium disposition. Also, some new or-ganization arrangement will likely be requiredfor long-term stewardship of facilities were resid-ual contamination and waste remain after cleanupis completed.3. Establish a Trust Fund for Long-Term Steward-ship. Because of the extraordinarily long periodsrequired for post-cleanup stewardship of nuclearfacilities, and the uncertainty about relying on theannual appropriations process, a dedicated trust

NEWS & ANALYSISCopyright © 2002 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

9-2002 32 ELR 11061

12. The technical term typically used is “particulates,” particularly“PM10,” i.e., particulate matter with a median diameter less than orequal to 10 microns, which results in greater potential health effectsdue to increased respirability and ability to be inhaled and lodged inthe deep lung, including the aveoli. The term “soot” is more econom-ical and readily understood.

13. John P. Holdren & Kirk R. Smith, Energy, the Environment, andHealth, in World Energy Assessment: Energy and the Chal-

lenge of Sustainability (2000). Holdren’s earlier paper on themeaning of sustainability concluded that “[t]he remedy, of course, isto ascertain what level of harm is tolerable in exchange for the bene-fits of the activity that causes the harm, the cost-benefit approach thatis applied to most pollutants.” Holdren et al., supra note 7.

14. Some radioactive materials are, in fact, less harmful than many poi-sons because when ingested orally (eaten or in drinking water), theycan quickly pass through the human body with little effect in somecases (the author does not advise this at home or anywhere else).However, when inhaled, nuclear material has a grave potential forcausing cancer or other health problems, especially when lodged inalveoli in the deep lungs. Other radionuclides such as cesium-137and iodine-128 can be selectively bound up into bone or thyroid tis-sue, respectively, causing chronic problems, such as bone cancer orthyroid disease.

15. This term has been used by some reprocessing proponents to conveyan environmentally friendly image to a technology that was devel-oped and used for producing plutonium and other essential nuclearmaterials for weapons.

16. “Fissile” refers to the ability of a material, e.g., plutonium (Pu)-239and uranium (U)-235, to undergo a nuclear chain reaction releasingenormous amounts of energy at many orders of magnitude greaterthan a comparable amount of chemical explosive.

17. The purity of the Pu-239 extracted from nuclear power reactor fuel isnot ideal, but nonetheless useable, for a nuclear warhead with a sig-nificant yield. The United States demonstrated such a device in theearly 1960s.

18. The U.N. Charter, which created the United Nations at the end ofWorld War II, is specifically intended to achieve international peaceand security. See John C. Dernbach, Sustainable Development: NowMore Than Ever, 32 ELR 10003 (Jan. 2002).

19. Each of the other three elements—economic development, socialdevelopment, and national governance that secures peace and de-velopment also have significant, albeit less unique nexus to nu-clear technology.

20. John C. Dernbach, Sustainable Development as a Framework forNational Governance, 49 Case W. Res. L. Rev. 1, 85-90 (1998).

21. See Section IV.B., infra, entitled U.S. Progress and Backsliding onRio Principles and Agenda 21 Activities.

22. 42 U.S.C. §§4321-4370d, ELR Stat. NEPA §§2-209.

http://www.eli.org

fund and insulated organization will likely be re-quired to ensure sufficient resources are availablefor the long periods required.4. Improve Scientific, Technical, and InstitutionalBasis for Radioactive Waste Management. A morerobust and publicly accepted basis for decisionsmust be developed. This will require investmentsin credible science, and a deliberate effort to earnimproved credibility among government agencies.5. Explicitly Connect Nuclear Waste ManagementWith Nonproliferation Issues as Well as Environ-mental and Safety Issues. The seamless connectionbetween certain aspects of radioactive waste con-trol and nuclear weapons proliferation should beacknowledged. The United States should supportchanges in the International Atomic Energy Agencyto separate the regulatory safety and safeguardsfunctions from the nuclear promotion activities.6. Openness and Democracy. The current gap be-tween government policies and public understand-ing and support should be bridged. Although moreopenness and commitment to democratic decision-making can help, serious questions remain aboutwhether the technical concerns about the securityof radioactive wastes and related nuclear opera-tions are compatible with open and democraticdecisionmaking processes.

D. Chapter Overview

After reviewing the changes in U.S. radioactive waste con-trol in the decade since the Rio Summit, this Article re-views some criteria derived from the 1992 Rio Declarationand Agenda 2123 that are useful for measuring progress onsustainability in radioactive waste control. These criteria arethen used to examine various types of radioactive wastes, toassess whether we have moved toward or away from amore sustainable society as a result of changes in our ap-proach to radioactive waste controls. Finally, several rec-ommendations flowing from this assessment are offeredfor consideration.

II. A Radioactive Waste Primer

Essential to any discussion of radioactive waste is a clearunderstanding of how various types of wastes are defined.24

In the United States, legal definitions of radioactive wastetypes are generally based on where the waste came from and

what radionuclides are present, rather than how much radio-activity is in it (although they are sometimes related).25

The amount of each waste is generally indirectly relatedto its radioactivity level, i.e., the higher the inherent radioac-tivity level, the lower the volume of the waste (see Table1).26 For example, although high-level waste and spent nu-clear fuel comprise only a small portion of the volume of ra-dioactive waste that has been buried or is being stored,27

they represent more than 95% of the radioactivity in nu-clear waste.28 The corollary is that nearly 90% (32 millioncubic meters) of the total U.S. radioactive waste volumeis radioactive “byproduct”29 waste; whereas more than90% of the radioactivity in U.S. radioactive waste is inspent nuclear fuel and high-level waste from nuclearweapons production.30

As of 1999, the United States generated and stored ap-proximately 16,000 cubic meters (m3) and 340,000 m3, re-spectively, of high-level radioactive waste.31 Annuallyabout 200,000 m3 of low-level and intermediate-level wasteand 10,000 m3 of high-level waste (as well as spent nuclearfuel destined for final disposal) is generated worldwidefrom nuclear power production. These volumes are increas-ing as more nuclear power units are taken into operation, nu-clear facilities are decommissioned, and the use ofradionuclides increases.32

A. Low-Level Waste

Low-level radioactive waste includes any radioactive wastenot classified as spent fuel, high-level waste, transuranic


32 ELR 11062 9-2002

23. U.N. Conference on Environment and Development (UNCED),Agenda 21, U.N. Doc. A/CONF.151.26 (1992), available athttp://www.un.org/esa/sustdev/agenda21chapter28.htm [hereinaf-ter Agenda 21].

24. U.S. DOE, Closing the Circle on the Splitting of the Atom:

The Environmental Legacy of Nuclear Weapons Produc-

tion in the United States and What the Department of En-

ergy Is Doing About It (1995 & 1996) (DOE/EM-0266); U.S.

DOE, Linking Legacies: Connecting the Cold War Nu-

clear Weapons Production Processes to Their Environ-

mental Consequences (1997) (DOE/EM-0319) [hereinafterLinking Legacies]. For an accessible summary of nuclear wastedefinitions and issues, see Susan Wiltshire, League of Women

Voters Education Fund, The Nuclear Waste Handbook: A

Handbook for Citizens (1993). Despite being several years old, itis not substantially out of date.

25. In contrast to the U.S. system, radioactive waste is categorized inmost countries, particularly European nations, according to the leveland type of radioactivity contained in it.

26. This inventory of waste types is based largely on undecayed radioac-tivity levels, using available data. A more precise comparison of ra-dioactivity would require calculating the relative decay of the vari-ous radioisotopes in each waste type. Generally, however,long-lived isotopes, e.g., uranium and plutonium, emit less radioac-tivity (per unit of time), and are disproportionately found inhigh-level byproduct and TRU wastes. Consequently, although theaverage radioactivity for these waste types might have changed lessthan other waste types, e.g., low-level waste, they nonetheless con-tain large amounts of mixed fission products, many of which decayrelatively rapidly.

27. The volume of spent nuclear fuel is largely a theoretical data pointbecause it must be stored with ample separation between fuel rods toavoid a criticality (spontaneous chain reaction). Nonetheless the vol-ume of spent nuclear fuel (commercial and DOE-owned spent nu-clear fuel are approximately 10,000 and 1,000 m3, respectively) isroughly 1% of the amount of low-level waste (commercial andDOE-disposed/stored is more than 1 million m3). See U.S. DOE,

Integrated Database—1996: U.S. Spent Fuel and Radioac-

tive Waste Inventories, Projections, and Characteristics

0-11 (1997) (DOE/RW-0006. Rev. 13).

28. U.S. DOE, Summary Data on the Radioactive Waste, Spent

Nuclear Fuel, and Contaminated Media Managed by the

U.S. Department of Energy 2-3 (2001) (ORNL/DWG95-8849R3) [hereinafter U.S. DOE, Summary Data on the

Radioactive Waste, Spent Nuclear Fuel, and Contami-

nated Media].

29. Also known as “11e2” waste, which is the relevant section of theAtomic Energy Act. See 42 U.S.C. §2014(e)(2).


Nuclear Fuel, and Contaminated Media, supra note 28.

31. Id. at 4-1.

32. Agenda 21, supra note 23, ¶ 22.1 (paragraph within Chapter 22on Safe and Environmentally Sound Management of Radioac-tive Wastes).

http://www.eli.org

waste, or byproduct material such as uranium mill tailings.33

It is commonly regarded as containing relatively low levelsof radioactivity, but it can also include relatively high levelsof radioactivity and typically includes radionuclides34 thatare as long-lived as those found in high-level waste. Al-though low-level wastes are generally less radioactive thanhigh-level wastes, some types of low-level waste can bemore radioactive than some types of high-level waste.35

Nongovernmental organizations (NGOs) have long rec-ommended changes to this radioactive waste classificationscheme,36 but no serious legislative efforts have beenmade.37 Recently, however, a U.S. Department of Energy(DOE) report recommended changes in this scheme ofwaste definition, though DOE has not proposed any specificlegislation, and the reference appears to be more rhetori-cal—to shirk “burdensome regulatory requirements”—thana serious policy proposal.38

B. Mixed (Radioactive and Chemical) Waste

“Mixed waste” includes both radioactive constituents andhazardous chemicals that are regulated by the ResourceConservation and Recovery Act (RCRA).39 The term gener-ally refers to low-level mixed wastes, but could also includeother radioactive waste forms. In fact, transuranic waste andhigh-level waste are generally mixed. The regulatoryschemes for transuranic waste and high-level waste are prin-cipally oriented to the radioactive constituents, such as plu-tonium and other fission products.40 As of 1999, the United

States generated and stored approximately 3,000 m3 and44,000 m3, respectively, of mixed low-level radioactivewaste.41

The definition and regulation of mixed waste remains abizarre mix of legal authorities. The hazardous componentof mixed waste is subject to RCRA regulation. But, the in-termingled radioactive constituents are subject only toAtomic Energy Act42 control, not RCRA.43 In terms of theradioactive portion of mixed wastes, source, special nu-clear, and byproduct material are explicitly excluded fromthe definition of “solid waste” under RCRA, and thereby ex-empted from regulation under RCRA.44

C. High-Level Waste (Including Spent Nuclear Fuel)

High-level waste45 includes (1) the liquid waste resultingfrom reprocessing spent nuclear fuel, and (2) spent nuclearfuel, if that spent fuel is not expected to be reprocessed.46 Inthe world of civilian nuclear waste, the terms “nuclearwaste,” “high-level waste” and “spent nuclear fuel” are vir-tually synonymous. DOE, however, fastidiously avoids re-ferring to spent nuclear fuel as “waste” largely to preservethe option of using it as a “resource” by reprocessing it to re-cover plutonium.47 In common parlance—including na-


9-2002 32 ELR 11063

33. 42 U.S.C. §2021; 10 C.F.R. pts. 61-62.

34. E.g., plutonium in concentrations less than 100 nCi/gram.

35. This contrasts with the use of the term in most other countries whereradioactive waste categories are defined according to the level orlongevity of radioactivity, rather than its source. See generally B.G.

Meager & L.T. Cole, National Low-Level Radioactive

Waste Management Program, Comparison of Low-Level

Waste Disposal Programs of DOE and Selected Interna-

tional Countries 236 (1996); Scott Saleska, Low-Level Radioac-tive Waste: Gamma Rays in the Garbage, Bull. of Atomic Scien-

tists, Apr. 1990, at 19-25; Arjun Makhijani & Scott Saleska,

Institute for Energy and Environmental Research

High-Level Dollars, Low-Level Sense (1992). The term “in-termediate waste” is typically used in many other countries to referto what is generally referred to as TRU waste in the United States,but also includes some low-level waste, i.e., Class B and C low-level waste.

36. 42 U.S.C. §10101 (16); 10 C.F.R. §61.2. See generally Makhijani

& Saleska, supra note 35.

37. This inaction reflects a stalemate among opposing sides that wouldlike to see the existing U.S. waste definitions and classification sys-tem change so that it is more similar to European classification sys-tems. For example, environmentalists might prefer low-level wasteto be defined in a way that reflects the hazard and level of radioactiv-ity. Nuclear industry officials might like the definition of high-levelwaste to be changed to allow for certain wastes to be excluded from arepository to make disposal easier, quicker, and cheaper. Both sides,however, fear the unpredictable outcome of opening up the legisla-tion to amendment.

38. U.S. DOE, Top-to-Bottom Review Team, A Review of the

Environmental Management Program (2002). The intent ofthis recommendation, however, appears to emphasize the potentialfor reducing financial costs more than increasing public healthprotections. Also, DOE has failed to develop or seek any politicalconsensus or coalition that would be necessary for enactment of stat-utory changes in waste category definitions.

39. 40 C.F.R §261; see also 42 U.S.C. §§6901-6992k, ELR Stat.

RCRA §§1001-11011.

40. In fact, despite the fact that most TRU waste contains hazardouschemical constituents that would otherwise be subject to RCRA reg-ulations, Congress further exempted DOE from RCRA land disposal

restrictions for the WIPP site in 1996. Waste Isolation Pilot PlantLand Withdrawal Act of 1992, Pub. L. No. 102-579, 106 Stat. 4777,as amended by the National Defense Authorization Act for FiscalYear 1997, Pub. L. No. 104-201, §§3187-88 (1996).


Nuclear Fuel, and Contaminated Media, supra note 28, at8-1.

42. 42 U.S.C. §§2011-2286i, 2296a-2296h-13 (including Price-Ander-son Act).

43. See 10 C.F.R. §962.

44. 42 U.S.C. §6903(27), ELR Stat. RCRA §1004(27). The regulationof mixed waste has a tortured history that largely preceded the RioSummit. See generally David P. O’Very, Regulation of RadioactivePollution, in Controlling the Atom in the 21st Century (Da-vid P. O’Very et al. eds., 1994); Barbara A. Finamore, RegulatingHazardous and Mixed Waste at Department of Energy NuclearWeapons Facilities: Reversing Decades of Environmental Neglect,9 Harv. Envtl. L. Rev. 83 (1985); and Terrence R. Fehner & F.G.Gosling, Coming in From the Cold: Regulating U.S. Department ofEnergy Nuclear Facilities, 1942-1996, 1 Envtl. Hist. 5 (1996).

45. Generally, liquid high-level waste includes the first and second cy-cle raffinate, i.e., nitric or other acid combined with the tributyl phos-phate or other solvents, used for initial extraction of the plutonium ofother nuclear materials, which includes most of the mixed fissionsproducts, e.g., strontium-90, cesium-137, technetium-99, initiallypart of the spent fuel and target being reprocessed. It also includesthe solids, such as crusts, salt cake, and other nonliquid materials thatsubsequently form in storage tanks.

46. More precisely, high-level waste is defined statutorily by the Nu-clear Waste Policy Act as “the highly radioactive material resultingfrom the reprocessing of spent nuclear fuel, including liquid wasteproduced directly in reprocessing and any solid material derivedfrom such liquid waste that contains fission products in sufficientconcentrations,” and “other highly radioactive material that the[Nuclear Regulatory] Commission, consistent with existing law,determines by rule requires permanent isolation.” 42 U.S.C.§10101(12)(A). The Nuclear Regulatory Commission (NRC) hasdefined high-level waste by regulation to also include “irradiated(spent) reactor fuel (not intended for reprocessing)” and solidifiedhigh-level waste. 10 C.F.R. pt. 60. The term “reprocessing” gener-ally refers to aqueous plutonium uranium extraction (PUREX)technologies, but could also include electrometallurgical or“pyro” processing.

47. If spent fuel is not intended for reprocessing, it is defined ashigh-level waste. DOE continues to distinguish spent fuel from otherhigh level waste forms, e.g., raffinnate resulting from reprocessingspent fuel, despite DOE’s 1992 decision to phase out reprocessing,

http://www.eli.org

tional news media coverage—high-level waste refers tospent nuclear fuel, especially the spent fuel stored at com-mercial nuclear power plants. In common parlance, whenthe national news media mentions nuclear waste, they arereferring to high-level waste, which is generally spent nu-clear fuel, especially the spent fuel stored at commercial nu-clear power plants. The definition of high-level waste andspent nuclear fuel is more critically important because of itspotential implications for proliferation of nuclear weaponsmaterials, and because of recent attempts to change the defi-nition without legislation.

Although high-level waste and spent nuclear fuel com-prise only a small portion of the volume of radioactive wastethat has been buried or is being stored,48 they represent morethan 95% of the radioactivity in nuclear waste, and are gen-erally more long-lived than low-level wastes.49 Conse-quently, these waste are considered to have the most signifi-cant potential long-term environmental impacts.50

Through the use of various reprocessing technologies,spent nuclear fuel can be used to produce nuclear weaponsmaterials, by extracting from it the plutonium that wouldotherwise be “locked up” in the mixed fissions productsfrom the nuclear reactor. Consequently, the question ofwhether spent nuclear fuel is considered a radioactive“waste” and how it is managed has potentially significantnuclear nonproliferation implications. Also, high-levelwaste is a critical tool for detecting and preventing nuclearweapons proliferation because it can be analyzed to deter-mine whether it has resulted from weapons grade plutoniumextraction, or reactor grade plutonium extraction.51 Al-

though not widely pursued, some components of high-levelwaste could be extracted to produce weapons material.52

As noted above, there has been little attempt to redefinenuclear waste in terms of its risks and radioactivity, insteadof its origin, except for persistent concerns raised by a lim-ited number of sophisticated nongovernmental analyses.The prospect of a statutory change, however, was raised inan early 2002 DOE report that complained, “waste are man-aged according to their origins, not their risks.” This con-cern followed more than a decade of quiet effort by DOE tosemantically detoxify large amounts of high-level wastefrom reprocessing by creating a wholly new category ofwaste, called “Waste Incidental to Reprocessing.”53 DOEmade this effort explicit by its proposal, as one of its “toppriorities,” to “[e]liminate the need to process . . . 75 percent. . . of high level waste.”54 In this way, DOE portrayed the ef-fort as an attempt to improve efficiency. But, improving effi-ciency requires doing more with less, or, at a minimum, do-ing the same work at lower cost. DOE proposal involves do-ing less with less, which requires no management break-through. DOE’s redefinition of high-level waste to reducecosts is made easier by the fact that DOE enjoys self-regula-tion of its high-level waste interim storage and treatment.Moreover, DOE’s “incidental” waste scheme could not onlyresult in less environmental protection for an important cat-egory of waste, but could further institutionalize DOE’sself-regulation and facilitate further reprocessing by reduc-ing the costs for the resulting wastes. Not incidentally, by re-ducing the costs for managing high-level wastes, DOEcould also reduce the overall costs for reprocessing, and,therefore, reduce the costs for producing more nuclearweapons material, e.g., plutonium. This DOE redefinitionattempt is being challenged.55

As long as it remains unacknowledged, the conflict be-tween nonproliferation and nuclear safety is one that willonly grow in intensity. If nuclear technology continues to


32 ELR 11064 9-2002

and the subsequent decommissioning of all U.S. reprocessing facili-ties except at one site (the Savannah River Site in South Carolina),thereby making reprocessing of nearly 90% of DOE-owned spentnuclear fuel virtually impossible, without potentially dangerous in-terstate transportation of spent fuel. The reasons for DOE’s irrationaldistinction include: (1) bureaucratic inertia; (2) a desire to elude in-dependent external regulation, which might apply if it were declareda “waste”; and, fundamentally, (3) a hope by some in DOE (contraryto all objective evidence) that the spent fuel might someday be repro-cessed because it represents a valuable nuclear material asset forweapons or energy, and should not be discarded as a “waste.”Ironically, this view is shared by DOE’s former nemesis in Russia’s“Minatom” nuclear agency.

48. The volume of spent nuclear fuel is largely a theoretical data pointbecause it must be stored with ample separation between fuel rods toavoid a criticality (spontaneous chain reaction). Nonetheless the vol-ume of spent nuclear fuel (commercial and DOE-owned spent nu-clear fuel are approximately 10,000 and 1,000 m3, respectively) isroughly 1% of the amount of low-level waste (commercial andDOE-disposed/stored is more than 1 million m3. See U.S. DOE, In-

tegrated Database—1996, supra note 27.



50. All things being equal, risk is proportional to radioactivity. Allthings however are not equal, and one must be careful about mak-ing this generalization using the basic definition of risk as productof probability and consequence. Probability of exposure tolow-level waste may be greater because workers are more likelyto being exposed to low-level than high-level waste because ofthe more common occurrence of, and reduced safety standardsapplicable, to low-level waste. In addition, the practice of shal-low land burial of low-level waste could result in more frequent in-advertent exhumation.

51. John Carlson et al., Australian Safeguards Office, Can-

berra ACT, Plutonium Isotopics—Non-Proliferation and

Safeguards Issues (1998) (IAEA-SM-351/64).

52. In particular, neptunium-237 and americium-241 can be extractedfrom liquid high-level waste to produce weapons-usable material.New Generation of Nuclear Weapons From Nuclear Waste, Jane’s

Defence Wkly., Mar. 31, 1999 (quoting David Albright). DavidAlbright & Lauren Barbour, Troubles Tomorrow? Separated Neptu-nium 237 and Americium, in The Challenges of Fissile Mate-

rial Control (David Albright & Kevin O’Neill eds., 1999); LindaRothstein, Explosive Secrets, Bull. of Atomic Scientists,Mar./Apr. 1999, available at http://www.thebulletin.org/issues/1999/ma99/ma99bulletins.html#anchor1217541 (last visited June3, 2002).

53. See DOE Order 435.1; 64 Fed. Reg. 29393 (July 14, 1999).

54. See Memorandum from Jessie Hill Roberson, Assistant Secretaryfor Environmental Management, U.S. DOE, to Director, Office ofManagement, Budget and Evaluation, Chief Financial Office (Nov.2001).

55. Natural Resources Defense Council v. Abraham, No. CV-01-413-S-BLW, (D. Idaho), on remand Natural Resources DefenseCouncil v. Abraham, 244 F.3d 742, 31 ELR 20547 (9th Cir. 2001).This straight-forward lawsuit seeking to compel DOE to abide by theNuclear Waste Policy Act could have far-reaching implications.First, it could halt DOE’s current regime of capping high-level wastein place after using only readily available late 20th century tankwaste removal technology, and could require investments in a sub-stantial long-term science and technology program focused onhigh-level waste in tanks. This would require reversing DOE’s re-cent actions, which have essentially eviscerated the DOE environ-mental science and technology program. In 2002, DOE cut in half itsenvironmental science and technology program and appointed a newdirector of the program with no experience in science and technol-ogy or research and development. Second, it could force DOE to in-ternalize the costs of its reprocessing operations, which generate ad-ditional high-level wastes.

http://www.eli.org

be used for power, research and testing is to continue, thenthe full life-cycle implications must be considered andopenly debated. The United States has provided some sup-port for replacing nuclear fuels with comparable non-weapons usable fuel technology,56 but it continues to sup-port use of weapons-grade uranium in domestic researchprograms,57 leading to a “do as we say, not as we do” per-ception by other countries. This is not a sustainable ap-proach to the challenge.

D. Transuranic Waste

Transuranic waste generally includes waste contaminatedwith plutonium.58 Because commercial nuclear power oper-ations do not involve extracting plutonium from spent fuel,virtually all of the transuranic waste in the United States isassociated with nuclear weapons production.59 The U.S.“transuranic” waste category overlaps significantly withwaste defined as “intermediate” level waste in other coun-tries. As of 1999, the U.S. stored approximately 171,000 m3

of transuranic radioactive waste and has approximately169,000 m3 of buried transuranic waste.60

The definition of what is and is not a transuranic wastewas an issue in the late 1980s when DOE unsuccessfullysought to evade regulation of its plutonium waste by assert-ing that certain plutonium-contaminated material was not a“waste,” but rather it was being stored for future reuse or re-cycling to recover the residual plutonium.61 Other disputesare likely to arise about the definition of transuranic waste in

at least two areas. First, large quantities of transuranic wasteare buried, and DOE has not yet decided whether this wastewill be exhumed for disposal in the dedicated deep geologicrepository being operated for transuranic waste disposalknown as the Waste Isolation Pilot Plant (WIPP). This deci-sion is currently being made piecemeal on a site-by-site ba-sis for each cleanup decision. Second, surplus plutoniumscrap material is being considered for direct WIPP disposalrather than being processed for potential use in nuclear reac-tors as mixed oxide fuel or solidified with liquid high-levelwaste for disposal in another deep geologic repository. If itis declared a “waste” it is more likely to be disposed of inWIPP, rather than the other options.

III. Summary of the Past 10 Years in RadioactiveWaste Control

The world of radioactive waste has changed fundamentallysince 1992. The most profound changes resulted from theend of the Cold War and the changing scope of nuclearwaste. An example of such change is the rethinking in theUnited States of plutonium as a liability and a waste insteadof a valuable resource for nuclear weapons, or as in somecountries, as an asset for energy production. Some changesreflected evolving environmental regulation and manage-ment.62 Clearly these have been major changes in radioac-tive waste management. But, it is not yet clear whether thenet result has been to make society more or less sustainable.

A. Nuclear Waste Assumptions Are Changed by the End ofthe Cold War

Nuclear weapons and the threat of nuclear war cast ashadow over the last half century that obscured many as-pects of radioactive waste management. Consequently, thelifting of that shadow in the wake of the end of the ColdWar63 has helped bring many issues to light with unprece-dented clarity. Although the Cold War had ended just beforethe 1992 Rio Summit,64 the implications of this change had


9-2002 32 ELR 11065

56. The desirable and somewhat unique characteristic of high enricheduranium (HEU) fuel is that it provides high flux neutrons, which areuseful in the production of certain research and medicalpharmaceuticals, and for materials testing, e.g., composite plasticsused in skis and bicycles. The United States has sponsored a pro-gram—the Reduced Enrichment Research and Test Reactor Pro-gram—at the Argonne National Laboratory to replace the HEU fuelswith low enriched uranium (LEU), i.e., not weapons-usable,high-density (HD) nuclear fuel, which provides comparable reactorperformance, and convince foreign countries to use these HD-LEU fuels. The budget for this program, however, has been chroni-cally underfunded.

57. The location of these reactors is not given here for security reasons. Itis sufficient to indicate that they include many leading universities,including some communities where local residents objected to finalshipments of foreign spent fuel for the phase out program, but whoacceded to—or were silent about—continued and indefinite ship-ments of identical materials to and from local domestic reactors.

58. See 42 U.S.C. §4214ee. More precisely, TRU waste includes alphaemitting wastes containing more than 100 nCi/gram of TRU iso-topes, i.e., isotopes with an atomic number larger than uranium, ormore than 92 on the periodic table of elements. An alpha is a sub-atomic particle composed of two protons and two neutrons, indistin-guishable from a helium atom nucleus.

59. The plutonium formed in a commercial nuclear power plant fuelis imbedded in the spent fuel with other fission products and theoriginal uranium, and is regarded as “high-level waste.” SomeTRU waste is generated in non-weapons research projects, butthey are typically small quantities and often involve rare, non-plutonium isotopes.


Nuclear Fuel, and Contaminated Media, supra note 28, at5-3, 6-7.

61. 734 F. Supp. 946, 20 ELR 21044 (D. Colo. 1990). Many of the pluto-nium-contaminated waste drums had been stored for more than 10years, and were not available for immediate reuse, as required byRCRA’s recycling amendment. DOE was storing wastes subject tothe RCRA Land Disposal Restrictions (LDR). These LDR wastescannot generally be stored for more than one year. 40 C.F.R.§268.50. RCRA also prohibits “speculative accumulation” of wastesunder the guise of future recycling. Id. §261.2(c)(4).

62. Market pressure to reduce costs, forced the use of new technologiesand operating procedures to significantly reduce low-level wastegeneration volume.

63. The popular view is that a nuclear explosion in a major city is lesslikely after the end of the Cold War. Many analysts, however, be-lieve that the proliferation of fissile materials among parties less pre-dictable than the former Soviet Union makes such a threat morelikely. See Graham Allison, Fighting Terrorism: Could Worse BeYet to Come?, The Economist, Nov. 3, 2001, at 19.

64. The fall of the Berlin Wall on November 9, 1989, is one marker forthe end of the Cold War. Another marker is the dissolution of the So-viet Union on December 25, 1991. The end of the Cold War wasidentified as September 27, 1991, for purposes of determiningworker and facility eligibility under the National Defense Authori-zation Act for Fiscal Year 1993. See Pub. L. No. 102-484, subtit. E,§3161, 106 Stat. 2315 (1992) (Department of Energy Defense Nu-clear Facilities; Work Force Restructuring Plan). The September 27,1991, date is derived from President George H.W. Bush’s announce-ment to cease 24/7 nuclear armed bomber flights and to eliminate nu-clear weapons from surface ships, which was followed on October 5,1991, by Soviet Premier Mikhail Gorbachev reducing the number ofSoviet nuclear missiles on alert. Hence, the Cold War ended less thana year before the Rio Summit. See Robert S. Norris, Nuclear Note-book, Bull. of Atomic Scientists, Jan. 1992, available athttp://www.thebulletin.org/issues/1992/jf92/jf92.notebook.html(last visited June 3, 2002). See also George H.W. Bush, Address tothe Nation on Reducing United States and Soviet Nuclear Weap-ons, Sept. 27, 1991, at http://bushlibrary.tamu.edu/papers/1991/91092704.html (last visited June 3, 2002).

http://www.eli.org

not yet permeated the nuclear establishment and its physicalinfrastructure.65 But, in the years since the Rio Summit, anenormous rethinking of the role of nuclear technology andthe management of radioactive waste has begun.

The collapse of the Soviet Union and the reduction ofU.S. and Russian nuclear weapons arsenals66 have clearlyreduced some nuclear weapons dangers,67 but other nucleardangers increased. At the time of the Rio Summit in 1992,there were five openly acknowledged nuclear powers hav-ing a military nuclear weapons capability: United States,Russia, Great Britain, China, and France.68 Since, 1992,however, the list of declared nuclear powers has nearly dou-bled to include India and Pakistan69 as well as Israel, who iswidely recognized as a nuclear weapons state,70 and SouthAfrica71, which has dismantled its weapons. In addition,Iraq72 and North Korea73 were found to have undertaken sig-

nificant nuclear weapons development programs, and Saudiex-patriot terrorist, Osama bin Laden, last residing in Af-ghanistan, claimed to possess nuclear weapons.74 This en-largement of the global Nuclear Club contributed to signifi-cant unease regarding nuclear issues. This unease contrib-uted to more than 170 countries attending the 1995Nonproliferation Treaty Review and Extension Conferenceat the United Nations in New York75 and agreeing to extendthe treaty indefinitely and without conditions.76 This treatyaddressed the use of reprocessing of high-level radioactivewaste to produce plutonium by relying on safeguards moni-tored by the U.N. International Atomic Energy Agency(IAEA). Unfortunately, the IAEA has been found to be inca-pable of aggressively monitoring aspiring nuclear states thatmight reprocess high-level waste surreptitiously.77

Ten years after the end of the Cold War its full implica-tions are still not fully appreciated. Among these implica-tions are a variety of shifts in how nuclear waste and radio-active contamination is managed. The complex and inter-twined, yet rarely acknowledged, relationship between nu-clear waste and nuclear weapons is a critical issue that de-serves consideration in any discussion of radioactive wastecontrol and sustainable development. A few examples ofthis relationship in the United States are summarized hereregarding the changing definition of “radioactive waste,”the potential use of radioactive waste for extracting nu-clear weapons material, the availability of informationabout radioactive waste and materials, the use of surplusweapons materials for peaceful purposes, the use of radio-active waste management funding to support weapons fa-cilities and activities.

The end of the Cold War rocked the foundations of whatwe previously thought was a waste to be disposed of versus avaluable resource to be stockpiled. High-level radioactivewaste from nuclear power may be only a definition awayfrom being a nuclear weapons material. For example, thenuclear industry oracle, the Nuclear Energy Institute, regu-larly asserts that “high-level ‘nuclear waste’ is really usednuclear fuel.”78 Some activists with the Nuclear Energy In-stitute and the American Nuclear Society used this semanticdevice to promote “recycling” of spent nuclear fuel from theback end of the nuclear fuel cycle, via reprocessing, to ex-tract the plutonium and uranium for use in fresh fuel to be re-turned to the “front end” to generate more power.79 Debating


32 ELR 11066 9-2002

65. One notable exception was then-Sen. Al Gore (D-Tenn.) who had al-ready recognized some of opportunities from the end of the ColdWar and joined with Senate Armed Services Committee chair, SamNunn (D-Ga.), in early 1992 to launch the Strategic EnvironmentalResearch Defense Initiative (SERDP), which sought to make avail-able enormous defense assets, e.g., oceanographic data from subma-rines and P-2 Orion surveillance aircraft, that could be used in envi-ronmental research.

66. Although arms control agreements have reduced the active stock-piles and thousands of nuclear warheads have been dismantled, alarge inactive nuclear stockpile that is not covered in the agreementsremains, with the total U.S. stockpile at approximately 10,000 war-heads. See Robert S. Norris, Nuclear Notebook: U.S. NuclearForces, Bull. of Atomic Scientists, Mar./Apr. 2001, at 77.

67. The hair trigger readiness of thousands of remaining operational nu-clear missiles, however, remains a significant risk, particularly fromtechnical malfunction or miscalculation by U.S. or Russian personnel.

68. In addition to the five declared nuclear powers, Israel, India, andSouth Africa were widely regarded as de facto nuclear powers. Israelhas long been widely suspected of possessing nuclear weapons, buthas never publicly confirmed it, despite a detailed book on the sub-ject by Seymour Hersh, see Seymour Hersh, The Sampson Op-

tion (1991), and other details disclosed by former Israeli technicianMordechai Vanunu in 1986. Also, India had detonated a nuclear ex-plosion in 1974, but referred to it officially as a “peaceful nuclear ex-plosion.” After the Rio Summit, in 1993, South Africa revealed thatit had produced, and later dismantled nuclear weapons.

69. John F. Burns, Indian Scientists Confirm They Detonated a Hydro-gen Bomb, N.Y. Times, May 18, 1998, at A1; John F. Burns, Paki-stan, Answering India, Carries Out Nuclear Tests; Clinton’s AppealRejected, N.Y. Times, May 29, 1998, at A1; M.V. Ramana & A.H.Nayyar, India, Pakistan and the Bomb, Sci. Am., Dec. 2001, at 60,available at http://www.sciam.com/2001/1201issue/1201ramana.html (last visited Apr. 25, 2002).

70. Avner Cohen, Most Favored Nation, Bull. of Atomic Scientists,Jan. 1995, at 44.

71. David Albright, South Africa and the Affordable Bomb, Bull. of

Atomic Scientists, July/Aug. 1994, at 37-47.

72. Judith Miller & James Risen, Tracking Baghdad’s Arsenal: Insidethe Arsenal: A Special Report: Defector Describes Iraq’s AtomBomb Push, N.Y. Times, Aug. 15, 1998, at A4; see also Letter fromHans Blix, Director-General of the IAEA, to Secretary General ofthe United Nations (Oct. 6, 1997) (addressing Fourth ConsolidatedReport of the Director-General of the IAEA to the Secretary General,Under Paragraph 16 of U.N. Resolution 1051), available athttp://www.iaea.org/worldatom/Programmes/ActionTeam/reports/s_1997_779.pdf (last visited Apr. 25, 2002).

73. Victor Gilinsky, Nuclear Blackmail: The 1994 U.S.–DemocraticPeople’s Republic of Korea Agreed Framework on North Korea’sNuclear Program, in Hoover Institution Essays in Public Pol-

icy (1999); Remarks of Ambassador Robert Gallucci, at CarnegieInternational Non-Proliferation Conference, on Proliferation Pros-pects (Mar. 16, 2000); and Joseph Cirincione, Non-ProliferationProject at the Carnegie Endowment for International Peace, TheAsian Nuclear Chain Reaction, Foreign Pol’y, Spring 2000; Car-negie Endowment for International Peace (CEIP), ProliferationBrief, Vol. 3, No. 3 (Mar. 2, 2000).

74. Tim Weiner, A Nation Challenged: Al Qaeda; Bin Laden Has Nu-clear Arms, N.Y. Times, Nov. 10, 2001, at B4.

75. Treaty on the Non-Proliferation of Nuclear Weapons, Mar. 5, 1970,art. IV, cl. 2, 21 U.S.T. at 489, T.I.A.S. No. 6839 at 6, 729 U.N.T.S.The treaty was approved on May 11, 1995, to remain in force indefi-nitely and without condition.

76. See U.S. State Department, Treaty on the Non-Proliferation of Nu-clear Weapons, at http://www.state.gov/www/global/arms/treaties/npt1.html (last visited Apr. 25, 2002); and United Nations, Treaty onthe Non-Proliferation of Nuclear Weapons, at http://www.un.org/Depts/dda/WMD/treaty/index.html (last visited Apr. 25, 2002).

77. Jared Dreicer, How Much Plutonium Could Have Been Produced inthe DPRK IRT Reactor?, 8 Sci. & Global Security 273 (2000);Paul Leventhal, Plugging the Leaks in Nuclear Export Controls:Why Bother?, Orbis, Spring 1992, at 177; and David Albright & K.O’Neill, The Iraqi Maze: Searching for a Way Out, 8 Nonpro-

liferation Rev. 1 (2001).

78. See Nuclear Energy Institute, High-Level “Nuclear Waste” IsReally Used Nuclear Fuel, at http://www.nei.org/doc.asp?catnum=2&catid=62 (last visited Apr. 25, 2002).

79. This method of obtaining fresh fuel has never been found to be eco-nomical, compared to the cost of newly mined and processed ura-

http://www.eli.org

the definition of “waste” is not unique to radioactivewaste.80 For radioactive waste, however, this question hasfar-reaching national security and environmental implica-tions, and has undergone a profound historic shift during thelast 10 years. The declaration of plutonium surpluses by theUnited States and Russia since 1992, have added to the al-ready excessive stockpiles of plutonium.81 Even before thisdramatic expansion of plutonium surpluses, there was noeconomic justification for defining spent nuclear fuel asanything other than a “waste.” Nonetheless, dreams of end-less plutonium supplies by reprocessing high-level radioac-tive waste continue to swim against the current of facts andlogic. Although the United States has announced plans for apermanent nuclear waste repository in Nevada, some offi-cials argue that technologies involving reprocessing, notcontemplated in the Nuclear Waste Policy Act,82 may bepreferable to disposal,83 despite the fact that these technolo-gies would not obviate the need for a geologic repository.84

Since the end of the Cold War, enormous stockpiles of“special nuclear materials,” e.g., plutonium (Pu)-239 anduranium (U)-235,85 and other materials, e.g., depleted ura-nium and lithium,86 materials that were painstakingly builtup for nuclear weapons arsenals, have been rendered sur-plus, but not officially declared “waste.” The most well-known example is the case of disposing of 100 metric tons ofsurplus U.S. and Russian weapons-grade plutonium thathave been declared surplus.87 Generally, the U.S. policy is to

regard excess plutonium as a waste and marginal energy re-source, while Russia regards excess plutonium as a valuableresource that should be used, and reused, for nuclear powerfuel. Despite these different perspectives, the United Statesand Russia are both seeking to blend the plutonium into nu-clear fuel88 and “burn” it in nuclear power plants. Althoughthis is not the most economical method of generating nu-clear power, it is being pursued, in part, because it will ren-der the plutonium unusable for weapons by “poisoning” itwith fission products.89 The goal is to meet the “spent fuelstandard,” which was a concept articulated in a seminal re-port by the National Academy of Sciences to seek to makethe plutonium from warheads as unavailable as the pluto-nium that is embedded in spent fuel from conventional nu-clear power plants.90 A parallel U.S. program to immobilizeplutonium in glass was initiated in 1996, but canceled in2002 by the Bush Administration.91

Unfortunately, all plutonium is not fully accounted forand in secure storage ready for disposal as a waste. For de-cades, the United States and Russia provided nuclear mate-rials as part of a Cold War technology support effort alongwith economic and other measures to exert geopolitical in-fluence. Some of these radioactive material sources, whichare commonly regarded as radioactive “waste” after use,can be used for crude ”dirty bombs” that cannot cause a nu-clear explosion, but could disperse radioactivity. As a resultof a 1984 Reagan Administration decision to end the track-ing of plutonium sources, a significant number of “sealedsources” are unaccounted for after they were provided toforeign countries, including Columbia, Iran, Pakistan, thePhilippines, and Vietnam.92 This problem of losing radioac-tive materials further demonstrates the fuzziness of definingwhat constitutes radioactive “waste.” In addition, it reflectsthe lesser degree of control given to wastes compared to afresh, new nuclear resource.93 The material may be techni-


9-2002 32 ELR 11067

nium. In addition to the cost of recovering the plutonium and ura-nium, the process produces a large amount of liquid high-levelwaste, creates substantially more hazardous working conditions foroperations technicians, and contributes to global nuclear prolifera-tion problems by fostering a market in reprocessed plutonium anduranium. The recent process of blending down high enriched (weap-ons-grade) uranium to low enriched (reactor-grade) uranium hasonly exacerbated the economic problems of using reprocessing as asource of nuclear reactor fuel. See William C. Sailor, The CaseAgainst Reprocessing, in F. for Applied Res. & Pub. Pol’y

(1999); Frank N. von Hippel, Plutonium and Reprocessing of SpentNuclear Fuel, 293 Science 2397-2398 (2001).

80. See, e.g., the long-running debates about the regulatory definition of“solid waste” under RCRA. 42 U.S.C. §6903, ELR Stat. RCRA§1004, and 40 C.F.R. §261. See Aaron Goldberg, The Federal Haz-ardous Waste Program: A House of Cards, Env’t Rep. (BNA), June16, 1995.

81. In 1988, the Secretary of Energy said: “We’re awash in plutonium.We have more plutonium than we need.” John Herrington, Secre-tary of Energy, Testimony Before the House AppropriationsSubcomm. on Interior and Related Agencies (Feb. 23, 1988).

82. 42 U.S.C. §§10101-10270.

83. Sen. Pete V. Domenici, A New Nuclear Paradigm, Inaugural Sym-posium, Belfer Center for Science and International Affairs, Har-vard University (Oct. 31, 1997); Lira Behrens, Domenci May Re-think Spent Fuel Disposal, Inside Energy, Nov. 10, 1997, at 1.

84. National Academy of Sciences, Interim Report of the

Panel on Separations Technology and Transmutations

Systems (1992); National Academy of Sciences, Board on

Radioactive Wastes, Nuclear Wastes: Technologies for

Separations and Transmutation (1996).

85. See 42 U.S.C. §2014(aa).

86. U.S. DOE, Taking Stock: A Look at the Opportunities and

Challenges Posed by Inventories From the Cold War

Era—A Report of the Materials in Inventory Initiative

(1996) (DOE/EM-0275) [hereinafter U.S. DOE, Taking Stock].

87. A full examination of the complex and evolving issue is beyond thisArticle. For background, see Arjun Makhijani & Annie

Makhijani, Fissile Materials in a Glass, Darkly (1995),available at http://www.ieer.org/pubs/fissmats.html (last visitedApr. 25, 2002); Howard Hu et al., Plutonium (1992); MatthewBunn & John P. Holdren, Managing Military Uranium and Pluto-

nium in the United States and the Former Soviet Union, 22 Ann.

Rev. of Energy & the Env’t 403-486 (1997).

88. Known as mixed oxide (MOX) fuel this blend of plutonium and ura-nium can be used in conventional nuclear power reactors up to ap-proximately one-third of the fuel charge.

89. “Fission products” are created by splitting uranium and plutoniumatoms in a nuclear reactors. Examples of fission products include ce-sium, strontium, technecium, and americium.

90. National Academy of Sciences, Committee on Interna-

tional Security and Arms Control, Management and Dis-

position of Excess Weapons Plutonium (1994): “We recom-mend . . . plutonium disposition options that result in a form fromwhich the plutonium would be as difficult to recover for weapons asthe lager and growing quantity of plutonium in commercial spentfuel. . . .” Id.

91. Matthew L. Wald, U.S. Settles on Plan to Recycle Plutonium, N.Y.

Times, Jan. 23, 2002, at A15.

92. Much of this unaccounted for plutonium is non-fissile Pu-238 ratherthan the Pu-239 isotope used for nuclear warheads. See U.S. DOE,

Office of Inspector General, Accounting for Sealed

Sources of Nuclear Materials Provided to Foreign Coun-

tries (2002) (DOE/IG-0456); Walter Pincus, Report Cites Unac-counted Plutonium: Amounts Sufficient to Create “Dirty Bomb,”Official Says, Wash. Post, Mar. 27, 2002, at A9. Also, DOE dis-closed in 1997 that 80 grams of weapons-grade plutonium was inad-vertently left behind during the chaotic withdrawal of forces fromVietnam in 1975. See U.S. DOE, Statement of Secretary Ha-

zel O’Leary, Openness: The Way to Do Business, Press

Conference Fact Sheets (1997).

93. See U.S. DOE, Plutonium, the First Fifty Years; United

States Plutonium Production, Acquisition, and Utiliza-

tion From 1944 Through 1994 (1996) (DOE/DP-0137). Appen-dix B on plutonium waste details how plutonium that was disposed

http://www.eli.org

cally identical, but a semantic or legalistic distinction canmean that the material becomes an environmental or a na-tional security risk.

A less well-known “waste/resource” problem, but morepervasive, is the challenge of dealing with a variety of othernuclear materials rendered surplus by the end of the ColdWar that have not been declared “waste,” but require dispo-sition, largely as wastes with few opportunities for recy-cling.94 One example is depleted uranium.95 DOE disclosedinformation on the U.S. stockpile of 585,000 metric tons ofdepleted uranium. The stockpile was found to be larger thanneeded for any demonstrated mission needs, such as tank ar-mor or penetrator bullets,96 the safety of which has beenquestioned.97 Nonetheless, the U.S. government continuesto decline to classify depleted uranium as a waste, despite le-gal challenges by the state of Ohio. As a result of a bipartisandirective from the U.S. Congress, with strong support fromlabor unions,98 the United States is now building facilities99

to convert the long-stored depleted uranium100 to a formsuitable for storage or disposal. Part of DOE’s recalcitrancein reclassifying depleted uranium as a “waste” is the hope bymany within DOE that depleted uranium can be used as asource of fissile uranium for nuclear power. The technology

for potentially spinning this nuclear straw into “nucleargold”101 is the Advanced Laser Isotope Separation(AVLIS), research for which was canceled soon afterDOE’s enrichment enterprise was privatized after decadesof government-funded research. Nonetheless, the prospectsfor developing AVLIS, kept alive in part by continued de-pleted uranium storage, is troubling for international secu-rity reasons. The same technology that was proposed forAVLIS, and the related Special Isotope Separation, could beused to extract weapons-usable fissile materials102 andcould be easier to conceal from verification than the largeindustrial-scale reprocessing facilities used historically toseparate weapons materials. Continuing to maintain thelarge stockpiles of depleted uranium (dU), preserves a po-tential justification for AVLIS and helps keep alive thehopes of many that some form of laser isotope separationtechnology can convert the nuclear waste to an asset.103 Un-fortunately, it also helps keep alive the threat that this tech-nology could help promote nuclear proliferation.

During the 1990s, the United States continued operationof the processing “canyons” at the Savannah River Site inSouth Carolina104 in order to “stabilize” spent nuclear fueland other irradiated materials, e.g., Mark-31 plutonium pro-duction targets, resulting in the purification of additionalquantities of weapons-grade plutonium. The “waste” spentfuel is converted into the national security material of puri-fied plutonium, which requires extraordinary safeguardsand security, as well as some additional radioactive waste.These operations were conducted under the pretense of“materials stabilization,”105 and illustrate another connec-tion between nuclear waste and nuclear weapons produc-tion. In some reprocessing proponent’s view, convertingspent fuel into a weapons-grade Pu-239 portion and a liq-uid high-level waste portion is more “stable” than main-taining the spent fuel in a solid form and using a more spe-cialized technology to stabilize it without producing weap-ons material.106


32 ELR 11068 9-2002

of as waste was not accounted for with the same rigor accorded toplutonium still considered part of the production system using theNuclear Materials Management and Safeguards System. Id. atapp. B.

94. See U.S. DOE, Taking Stock, supra note 86.

95. Depleted uranium is defined as uranium with less than 0.71% U-235.Natural uranium is primarily composed of non-fissile U-238, with0.71% U-235, which is extracted through the enrichment process toincreased the relative proportion of U-238 to 3 to 4% for nuclearpower plants fuel and more than 20%, and often more than 90% (ex-act enrichment levels are classified), for weapons grade and navalnuclear propulsion systems, i.e., submarine and aircraft carriers.

96. Because of its extreme high density (and therefore projectile force),depleted uranium is used in tank penetrator bullets to pierce armorplating, and defensively for plating on U.S. tanks such as the M1A-1.Limited amounts of depleted uranium were used for bullet and armorproduction at the Special Manufacturer Capability (SMC) facility atthe Idaho National Engineering Laboratory. This enterprise wasclassified as “Black”—meaning that the government did not ac-knowledge the existence, much less provide any information about,the SMC program—until the 1990s.

97. The safety of depleted uranium (dU) bullets have been the topic ofdebate by critics who allege health threats, see Akira Tashiro, Dis-counted Casualties: The Human Cost of Depleted Uranium, The

Chugoku Shimbun, Apr. 24, 2001; Bill Mesler, The Pentagon’sRadioactive Bullet: An Investigative Report, The Nation, Oct. 21,1996; and Bill Mesler, Pentagon Poison: The Great RadioactiveAmmo Cover-Up, The Nation, May 26, 1997, or others who assertdepleted uranium poses no significant risks, see Steve Fetter &Frank von Hippel, After the Dust Settles, Bull. of Atomic Scien-

tists, Nov./Dec. 1999, at 42. Unresolved is the management issue ofwhether discharging the depleted uranium from an aircraft during atraining exercise, e.g., in the Ozark Lakes of Missouri or the Nellisrange in Nevada, is radioactive waste disposal.

98. The Oil, Chemical and Atomic Workers Union, later consolidatedwith the Paper and Allied Chemical Employees, faced the prospectof massive job losses after the privatized DOE enrichment opera-tion—the U.S. Enrichment Corporation (USEC)—announced itsplan to shut down the Portsmouth plant in Ohio, and leave only thePaducah plant in Kentucky operating.

99. The fiscal year (FY) 2003 budget request included funding for onlyone facility, although strong congressional support may direct thatthe originally planned two facilities (Ohio and Kentucky) be built.

100. The depleted uranium had long been stored as uranium hexafluorideoutdoors with no cover in Kentucky, Ohio, and Tennessee outside intens of thousands of 10- and 14-ton steel cylinders, more than 17,000were found by DOE to be corroded. U.S. DOE, Taking Stock, su-pra note 86, at 150.

101. Despite decades of government investment in the technology, thehigh costs of constructing and operating an AVLIS facility, com-bined with the unproven experimental nature of the project, led to thecancellation of the program soon after the private entity, USEC, tookcontrol of the enterprise.

102. The essential technology for both AVLIS and SIS is the vaporizationof metallic plutonium or uranium mixtures, and then selectively ion-izing (giving it a positive or negative charge depending on the iso-tope) various plutonium or uranium isotopes, e.g., Pu-239 or U-235,from the hot vapor with a tuned laser, thereby allowing the desiredisotope to be collected magnetically.

103. The potential high purification levels achievable with laser isotopeseparation could be used to produce relatively pure, weapons-usableU-235 or Pu-239, even from stocks of otherwise unusable impureuranium and plutonium, that might be regarded as “waste.”

104. Reprocessing facilities were also operated in Idaho at the IdahoChemical Processing Plant and the Idaho Nuclear Technology Cen-ter at the Idaho National Engineering Laboratory; in Washington atthe Hanford Reservation PUREX and T-Plants; and in New York atWest Valley, south of Buffalo. Commercial reprocessing plants builtin Morris, Illinois, and Barnwell, South Carolina, never operated.

105. The need to stabilize the spent fuel and surplus plutonium wasclearly legitimate. See U.S. DOE, Plutonium Working Group

Report on the Environmental Safety and Health Vulnera-

bilities Associated With the Department’s Plutonium Stor-

age (1994) (DOE/EH-0415). In some cases, however the need andurgency for stabilization of some materials was overblown, and re-sulted in extended reprocessing canyon operations.

106. Editorial, Push for Reprocessing, Augusta Chron., May 16, 1996,at 4A; Editorial, Reprocessing Is the Answer to Waste and Fuel Han-dling at SRS, Aiken Standard, Mar. 21, 1996; and Greg Renkes,

http://www.eli.org

DOE continues to operate and upgrade the SavannahRiver Site reprocessing canyons using funding from the En-vironmental Management budget,107 producing significantquantities of weapons-grade plutonium as well as a varietyof nuclear materials, e.g., Pu-242, for programmatic, i.e.,nuclear weapons, purposes.108 DOE has justified this opera-tion based on the need to reduce risks from unstable mate-rial. This legitimate justification has been overused, however:material that was clearly identified as not presenting any im-minent risk, i.e., Mark 16/22 targets, was reprocessed forlargely political reasons.109 This “stabilization” reprocess-ing results not only in production of purified weapons mate-rial, but generates additional liquid high-level waste, whichis added to the 90 million gallons and 2.4 billion curies of ra-dioactivity (approximately 98% of all radioactivity in U.S.radioactive wastes) already stored in underground storagetanks, which have already exceeded their design life.110

The government’s strategy for managing spent nuclearfuel supports further reprocessing operations.111 In the wakeof the decision of President George H.W. Bush’s Admin-istration112 to phase out reprocessing, DOE performed a pro-grammatic environmental impact statement (EIS)113 that re-sulted in a decision to manage spent nuclear fuel accordingto fuel type, e.g., aluminum clad versus, steel clad, etc.. Om-inously, DOE decided to ship spent nuclear fuel to sites thatare best suited to perform reprocessing using existing equip-ment.114 In 1996, DOE indicated that it would begin devel-

opment of an alternative technology to replace reprocessingfor stabilizing some spent nuclear fuel,115 but has regularlyunderfunded or outright defunded this technology develop-ment program. Despite being selected as the preferred alter-native in a recent EIS the ability to use an alternative tech-nology to reprocessing is in jeopardy and if stored spent nu-clear fuel becomes unstable at the Savannah River Site,DOE may have no feasible option to converting the spentnuclear fuel to weapons material and liquid high-levelwaste. At DOE’s Hanford site, the decisions to keep thePUREX reprocessing facility shut down stranded spentnuclear fuel at Hanford. Because the traditional method ofmanaging spent nuclear fuel (reprocessing in PUREX)was unavailable, DOE developed and used an alternativetechnology.116

A classic case of nuclear waste controls overlapping withnuclear weapons nonproliferation efforts is the program toreturn foreign spent fuel to the United States. This programseeks to avert nuclear proliferation by accepting spent fuelin exchange for an agreement to phase out use of weap-ons-grade uranium in research and test reactors.117 The pro-gram was not consistently operated, and had virtuallyceased by 1992.118 In 1993, the DOE and U.S. State Depart-ment resuscitated this nonproliferation program, and under-took short- and long-term operations for returning foreignspent fuel to DOE facilities in the United States. Despite ef-forts to characterize the shipment of spent nuclear fuel intoU.S. ports as a nonproliferation program, public perceptionwas that this is dangerous “nuclear waste” and the UnitedStates should not be the “dumping ground,” or at a mini-mum that it should not be shipped in through their localport.119 When the United States initially shipped uranium


9-2002 32 ELR 11069

U.S. High-Level Waste Management Policy and the ReprocessingOption (Speech to the American Nuclear Society in Washington,D.C.) (Nov. 1996).

107. U.S. DOE, Congressional Budget Request (2002)(DOE/CR-0076).

108. Bette Hileman, Energy Department has Made Progress CleaningUp Nuclear Weapons Plants, Chem. & Engineering News, July22, 1986, at 14.

109. See Letter from John Conway, Chair of the Defense Nuclear Facil-ities Safety Board, to Energy Secretary Hazel O’Leary (Nov. 15,1995); and Letter from Sen. Strom Thurmond, Chair of the SenateArmed Services Committee, to Energy Secretary Hazel O’Leary(Nov. 16, 1995) (on file with author). These letters were coordinatedby the two offices, and provided no new technical information, butstrongly support retaining jobs for southern South Carolina govern-ment nuclear contractor workers. A detailed technical review byDOE found these wastes posed no risk warranting reprocessing.There was a list of materials “at risk” and some “not at risk.” TheM-16/22’s were reprocessed even though they were identified as notat risk, essentially due to pressure from Sen. Strom Thurmond.(R-S.C.) to provide additional federal jobs in South Carolina.



111. Prior to May 2001, the U.S. policy was to consider reprocessing onlyfor government -owned spent fuel, and all commercial high-levelwaste was to be disposed of it in a geologic repository directly. ABush Administration report, see National Energy Policy De-

velopment Group, National Energy Policy: Report of the

National Energy Policy Development Group 5-16 (2001),proposed to reopen the possibility of reprocessing spent nuclear fueland investing in reprocessing technologies, although the FY 2003budget did not reflect this rhetoric.

112. Memorandum from James Watkins, Secretary, U.S. DOE, to Staff(Apr. 1992).

113. The scope of this environmental impact statement (EIS) was ex-panded to cover spent nuclear fuel only after the legal interventionby Gov. Cecil Andrus (D-Idaho), resulting in an injunction on Au-gust 9, 1993, preventing additional spent nuclear fuel shipments toIdaho.

114. U.S. DOE, Programmatic Spent Nuclear Fuel Management

and Idaho National Engineering Laboratory Environmen-

tal Restoration and Waste Management Programs Final

Environmental Impact Statement (1995) (DOE/EIS-0203-F)(known as Programmatic Spent Nuclear Fuel and INEL EIS). Seealso the records of decision for that EIS, 60 Fed. Reg. 28680 (June 1,1995) and Programmatic Spent Nuclear Fuel Management andIdaho National Engineering Laboratory Environmental Restorationand Waste Management Programs, 61 Fed. Reg. 9441 (Mar. 8, 1996).

115. On February 23, 1996, EPA published a Notice of Availability of thefinal EIS. U.S. Final Environmental Impact Statement on a ProposedNuclear Weapons Nonproliferation Policy Concerning Foreign Re-search Reactor Spent Nuclear Fuel, 61 Fed. Reg. 6983 (Feb. 23,1996) (DOE/EIS-0218F).

116. DOE constructed a vacuum drying facility at Hanford to preparespent fuel stored in water pools at the K Basins in the 100 Area forstorage in a retrofitted facility in the 200 Area.

117. During the Cold War, the United States had shipped uranium to morethan 40 countries to assist their nuclear development and to encour-age them to refrain from developing a “home-grown” weap-ons-grade uranium production capability. In this “Atoms for Peace”program, the United States agreed to accept the spent fuel. Not onlydid this relieve the participating countries of the burden of storingspent fuel, but it also helped control the spread of nuclear weaponsmaterials. Unlike nuclear power plant fuel, this fuel contained highenriched, or weapons-grade uranium, which could be extractedthrough reprocessing.

118. The program stalled in part because of legal challenges by U.S.NGOs, which objected to what was viewed as a duplicitous policy ofreturning nuclear material to the United States in an ostensiblenonproliferation effort but then reprocessing the spent nuclear fuelto extract weapons-grade uranium for use in the U.S. nuclear weap-ons program. This problem ended in 1992 with the U.S. decision tophase out reprocessing.

119. Hundreds of people attended hearings in Portland, Oregon, and Con-cord, California, to object to the shipments through their local ports.The California hearings were also attended many University of Cali-fornia employees seeking contract work with DOE, and conse-quently declined to voice support for the shipments, despite theirsupport and acceptance because their first priority was their market-

http://www.eli.org

and fuel overseas during the Cold War, there was little con-sideration given to the potential problems of returning andmanaging the resulting spent fuel.

B. Commercial Nuclear Waste Eclipsed by NuclearWeapons Facilities’ Waste

To the extent that the 1992 Rio Summit addressed radioac-tive waste, it focused on commercial nuclear waste, whichincluded waste from nuclear power plants and medical labo-ratories. This focus reflected the public and political lack ofawareness of the radioactive waste legacy that had been ac-cumulating in relative secrecy in the factories and labora-tories120 of the U.S. nuclear weapons complex. This fog ofsecrecy began to lift in the late 1980s, spurred by safetyproblems in the facilities, congressional investigations, andthe newspaper coverage of these problems. The stage wasset by private publications that began to pull the cover off ofnuclear weapons activities.121 From 1988-1989, a team ofreporters from the New York Times published almost dailyarticles about the environmental and safety problems withthe nation’s aging nuclear weapons facilities.122 DOE,which is responsible for managing the U.S. nuclear weaponscomplex, quietly launched a series of environmental sur-veys between 1986 and 1989 to catalogue the environmentalproblems, followed by a more public “Tiger Teams” investi-gations. In addition, the Administration of President GeorgeH.W. Bush created a new office of Environmental Restora-tion and Waste Management within DOE to help focus re-sources on the cleanup. This evolution of openness ex-ploded in 1993 with the series of “Openness Initiative” pressconferences held by Energy Secretary Hazel O’Leary, be-ginning on December 7, 1993.123 DOE also published a se-

ries of books and reports that provided an unprecedentedand candid account of the nuclear weapons complex and itsenvironmental and safety problems.124 By the end of the1990s, there was a broadened awareness of the environmen-tal problems with the U.S. nuclear weapons complex.

The widespread environmental problems were acknowl-edged “officially” by the government when environmentalcleanup requirements affecting budgets in the 1990s and theestimated costs more than doubled.125 In 1988, DOE’s firstcleanup estimate was approximately $85 billion,126 whichplaced government cleanup costs on par with the roughly$100 billion estimate for cleanup of commercial nuclearpower plants. DOE’s initial cost projection would inevitablyrise, however, because embedded in the 1988 estimate wasthe assumption that most nuclear weapons facilities wouldcontinue operating and would not require much clean-up—one of many assumptions that changed in the wake ofthe end of the Cold War. DOE later estimated the govern-ment’s total environmental liability for radioactive wastecleanup at approximately $230 billion.127 Combined with adrumbeat of environmental horror stories and new DOE stud-ies,128 these cost estimates had the effect of sweeping back acurtain of secrecy revealing a landscape of radioactive wasteproblems. These newly revealed problems were more thantwice the size of commercial nuclear waste challenges.129

For fiscal year 2003, the annual budget for DOE’s Environ-mental Management program is nearly $7 billion—largerthan the U.S. Environmental Protection Agency’s (EPA’s) en-tire operating budget, and far larger than environmental ex-penditures by commercial nuclear operations, making it thelargest single environmental program in the world.


32 ELR 11070 9-2002

ing interests rather than community education and nonproliferation.There were also many older residents who were surprised to learnthat virtually all of the uranium proposed for return through the porthad secretly been originally shipped overseas through Californiaports during the Cold War, but objected when offered the opportu-nity to comment.

120. In Russia, nuclear waste also accumulated secretly in naval ship-yards, e.g., Murmansk, from ships and submarines. U.S. Navy ship-yards were largely kept free of nuclear waste by promptly shipping itto a DOE facility in Idaho. See, e.g., Don J. Bradley, Pacific

Northwest Laboratories, Behind the Nuclear Waste Cur-

tain: Radioactive Waste Management in the Former Soviet

Union (1997).

121. Thomas B. Cochran et al., Nuclear Weapons Databook

(1987); Robert Del Tredici, At Work in the Fields of the

Bomb (1987); Howard Moreland, The H-Bomb Secret: TheKnow-How Is to Ask Why, The Progressive, Nov. 1979, at 3, avail-able at http://www.progressive.org/pdf/1179.pdf (last visited June3, 2002).

122. William Lanouette, Tritium and the Times: How the Nuclear Weap-ons-Production Scandal Became a National Story (JFK School ofGovernment, Harvard University, Research Paper R-1 1990).

123. The information that was most widely reported was the use of unwit-ting human subjects for a series of radiation experiments that beganin the 1940s, including the use of retarded children and minority andindigent subjects in exchange for money. Although some of this in-formation had been reported years earlier by Rep. Edward Markey(D-Mass.), it was made more explicit by a series of reports in the Al-buquerque Journal, which earned the reporter a Pulitzer Prize andwas later published in a detailed book on the issue. See Eileen

Welsome, Plutonium Files: America’s Secret Medical Ex-

periments in the Cold War (1999). The larger impact of this rev-elation was that President William J. Clinton established an inter-agency review and a Federal Advisory Committee on Human Radia-tion Experiments, which undertook a wide-ranging investigation ofthis issue.

124. U.S. DOE, Closing the Circle on the Splitting of the Atom:

The Environmental Legacy of Nuclear Weapons Produc-

tion in the United States and What the Department of En-

ergy Is Doing About It (1995) (DOE/EM-0266); U.S. DOE, Es-

timating the Cold War Mortgage: The Baseline Environ-

mental Management Report (1995) (DOE/EM-0232); U.S.

DOE, The 1996 Baseline Environmental Management Re-

port (1996) (DOE/EM-0290); U.S. DOE, Taking Stock, supranote 86; Linking Legacies, supra note 24; U.S. DOE, From

Cleanup to Stewardship (1998) (DOE/EM-0466); U.S. DOE,

Buried Transuranic Contaminated Waste Information for

U.S. Department of Energy Facilities (2000); and U.S. DOE,

Office of Environmental Management, Report to Congress

on Long-Term Stewardship (2001) (DOE/EM-0563) [hereinaf-ter DOE/EM Report to Congress].

125. Some observers have suggested that DOE shifted spending to its en-vironmental cleanup budget to help fund facility maintenance whenenvironmental spending became more politically popular than nu-clear weapons production. Later analyses, see note 127 infra, con-firmed that much of the “cleanup” budget was spent on maintenancerather than cleanup.

126. U.S. DOE, Environment, Safety, and Health Needs of the

U.S. Department of Energy (1988) (DOE/EH-0079).

127. U.S. DOE, Estimating the Cold War Mortgage, supra note124. This estimate was initially questioned, but was subsequentlyreplicated, see U.S. DOE, The 1996 Baseline Environmental

Management Report, supra note 124, and independently vali-dated, see U.S. DOE, Accountability Report, Fiscal Year

1999 (2000) (DOE/CR-0069); Letter from Greg Friedman, Inspec-tor General, DOE, Accompanying DOE/IG-FS-01-01 on DOE’sConsolidated Financial Statements Report (Feb. 16, 2001) (re-printed in DOE/CR-0071.)

128. See studies cited in note 124, supra.

129. The estimated cost for decommissioning and decontamination ofcommercial nuclear facilities has been estimated at approximately$100 billion. Gene R. Heinze, The Cost of Decommissioning U.S.Reactors: Estimates and Experience, 12 Energy J. 87 (1991) (Spe-cial Nuclear Decommissioning Issue).

http://www.eli.org

The increasing openness since 1992 has not only been themost publicly evident change in radioactive waste issues,but it has also had one of the greatest practical impacts. Pro-viding information and fostering an open debate resulted ina variety of decisions that were different than they mighthave otherwise have been without it. At the Fernald Site inOhio, for example, cleanup costs were reduced by severalbillion dollars as a result of local community involvement inthe cleanup decisionmaking process. A citizens’ task forcerecommended that most of the waste at Fernald be containedon-site in a newly constructed disposal cell, while shippingonly the most highly radioactive waste off-site.130 The com-munity involvement included a significant amount of infor-mation exchange, and a visit to the Nevada Test Site—theerstwhile disposal site for much of the radioactive wastefrom the Fernald Site. Similar involvement of state regula-tors with unprecedented amounts of information sharing re-sulted in a relatively smooth decisionmaking process fortreatment of mixed low-level radioactive waste, through aprocess managed by the National Governors Association.131

By contrast, commercial low-level waste disposal effortshave been plagued by a lack of trust among participants andineffective public participation that has often involved alarge element of public relations.132 The fundamental differ-ence is whether communications involves a legitimate ex-change of information in which proposed decisions are trulychanged by new information and perspectives provided bythe public, or whether the information flow is simply oneway, as in public relations.

Regrettably, some information was released too late. Forexample, information on the size of the U.S. plutoniumstockpile was released too late to prevent the squandering ofmore than $500 million from 1981 to 1991 on a project toproduce weapons-grade plutonium from spent fuel using anew laser isotope separation technology, known as SpecialIsotope Separation. This plant was slated for construction inIdaho and was estimated to cost more than $3 billion to in-crease stockpiles of plutonium, under the pretense that theUnited States needed more plutonium for nuclear weapons.Unfortunately, U.S. plutonium inventories were classified,allowing acquisitive contractors, congressmen, and bureau-cratic fiefdoms to advocate more plutonium productionbased on need. In 1993, the U.S. plutonium inventory wasdeclassified, revealing that the United States had possessedmore than enough plutonium (approximately 100 metrictons) to support not only the current arsenal, but also anyreasonably foreseeable stockpile scenario. This declassifi-

cation was too late to prevent the frivolous expenditure ofhundreds of millions of dollars on politically driven pro-jects, but the information has been vital to planning pluto-nium disposition. Similarly, in 1999, DOE was forced bypress stories to disclose its historic use of “recycled ura-nium” that contained plutonium and other fission productsextracted from spent nuclear fuel.133 Although this disclo-sure was too late to allow workers to protect themselves, itwas critical in congressional support for a workers compen-sation bill134 and is useful for planning environmentalcleanup and long-term stewardship requirements.135

By contrast, commercial nuclear power has been in a rela-tive lull for more than a decade. Now new orders for nuclearpower plants have occurred in the United States since theRio Summit. In fact, the last nuclear reactor to go into opera-tion in the United States was the Watts Bar plant in Tennes-see, which went critical in January 1996. The TennesseeValley Authority (a government-subsidized public poweragency) began construction on this plant in December 1972.The most recent construction of a nuclear power plant in theUnited States began in March 1977 and started commercialoperations in June 1986.136

Few participants in the 1992 Rio Summit could have fore-seen the emerging dimensions of the environmental prob-lems in the U.S. nuclear weapons complex.137 Ten yearslater, no consideration of nuclear waste control can reason-ably exclude the environmental and waste disposal prob-lems of the U.S. nuclear weapons complex as well as the re-lated nonproliferation issues. Ten years after the Rio Sum-mit, the radioactive waste issues related to weapons produc-tion should, at a minimum, be introduced and discussed atthe summit in South Africa in September.

IV. Measuring Progress Toward Sustainability

Despite the relatively brief treatment given to radioactivewaste control by the Rio Summit, the Rio principles offerseveral useful criteria for measuring progress towardsustainability in radioactive waste management. This sec-tion will highlight selected principles from the Rio Declara-tion applicable to radioactive waste control, and it will re-


9-2002 32 ELR 11071

130. Fernald Citizens’ Task Force, Recommendations on

Remediation Levels, Waste Disposition, Priorities and Fu-

ture Use (1995). This task force was spearheaded by a long-timeactivist, Lisa Crawford, who had formed the Fernald Residents forEnvironmental Safety and Health. See Rachel Melcher, Fernald Ac-tivist Hangs Tough, Cincinnati Enquirer, Nov. 18, 1999, at B1,available at http://enquirer.com/editions/1999/11/18/loc_fernald_activist.html (last visited June 3, 2002).

131. This collaboration between states and DOE facilitated by the Na-tional Governor’s Association (NGA) was significant because itavoided the confrontation some feared would result from the enact-ment of the Federal Facilities Compliance Act in 1992. See FederalFacilities Compliance Act of 1992, 102-386, 106 Stat. 1505 (amend-ing scattered sections in 42 U.S.C. §§6901-6961, ELR Stat. RCRA§§1001-6001 (1994)).

132. Stan L. Albrecht, University of Florida, Low-Level Radio-

active Waste Siting Toward the Development of More Ef-

fective Policy Through Understanding Failure (1998) (EPAGrant Number: R823191).

133. James R. Carroll & James Malone, Cold War Poison: The PaducahLegacy, The Courier-Journal, June 25, 2000, at A1; and JobyWarrick, Uranium Plant Risks Were Concealed, Wash. Post, Sept.21, 1999, at A1.

134. Energy Employees Occupational Illness and Compensation Pro-gram Act of 2000, Pub. L. No. 106-398, 114 Stat. 1654.

135. DOE subsequently undertook an extensive review of the use of recy-cled uranium, see U.S. DOE, A Preliminary Review of the

Flow and Characteristics of Recycled Uranium Through

the DOE Complex: 1952-1999 (2001) (DOE-F001-F001).

136. U.S. Energy Information Administration, Unique Reactors, athttp://eia.doe.gov/cneaf/nuclear/page/nuc_reactors/superla.html(last visited Apr. 25, 2002).

137. One prominent Earth Summit participant, then-Sen. Al Gore(D-Tenn.), had long been involved in addressing the environmentalproblems of the U.S. nuclear weapons complex as early as the 1980s,especially at the Oak Ridge Reservation in his home state of Tennes-see. As a Representative and Chairman of the House Oversight andInvestigations Subcommittee, Energy and Commerce Committee,Representative Gore organized the first set of hearings devoted tothese issues as early as 1983 dealing with dumping of mercury intoTennessee waterways. See The Impact of the Mercury Losses in OakRidge, Hearings Before the U.S. House of Representatives Scienceand Technology Committee, Subcommittees on Oversight and Inves-tigations and Subcommittee on Energy Research and Development(July 11, 1983).

http://www.eli.org

view various areas of radioactive waste control to assesswhether the United States has moved toward or away fromsustainability as measured by the Rio principles.

A. Radioactive Waste Control in the Rio Declaration andAgenda 21

Of the two principle documents arising from the 1992 RioSummit—the Rio Declaration and Agenda 21—the issue ofradioactive waste control was addressed explicitly onlybriefly in a three-page chapter in Agenda 21.138 The Agenda21 chapter, entitled “Safe And Environmentally SoundManagement of Radioactive Wastes,” was divided into twomajor sections: (1) management; and (2) international andregional cooperation and coordination activities.139 Themanagement activities agreed upon in Agenda 21 includeworthy areas such as waste minimization, developing safetystandards, supporting technology transfer, and participatingin planning, including emergency planning. The interna-tional cooperation and coordination activities include pre-venting transboundary impacts, supporting a permanent banon ocean disposal of low-level wastes140 avoiding storageand disposal of waste near oceans, and abiding by interna-tional waste transfer bans and other agreements. Generally,Agenda 21 focused on a limited number of cross-boundaryissues, e.g., protection of oceans, primarily oriented towardcommercial nuclear waste issues. The United States haslargely supported the broad objectives in Agenda 21.

Clearly, radioactive waste control was not a primaryfocus of either of the two principle documents arisingfrom the Rio Summit. Because there are few specifics re-garding radioactive waste control in Agenda 21, it is use-ful to identify significant radioactive waste issues thatwere not included. For example, Agenda 21 does notmention nuclear weapons—either the waste implicationsof weapons production, e.g., transuranic waste, or the po-tential weapons implications of waste management deci-sions, e.g., extraction of plutonium form spent nuclearfuel. Given the controversial nature of these issues, it isunderstandable that the nonproliferation implications ofnuclear waste and the waste produced by nuclear weap-ons production operations were not raised in the 1992 RioSummit and apparently will not be addressed officially atthe 2002 summit in Johannesburg. These are sensitive is-sues in domestic debates; and there is typically more re-luctance to discuss these issues in an international forumwhere it could affect sovereign national security inter-ests. The changes in the global perspective on radioactivewastes and materials—such as the changed scope of whatis considered “waste” and the emergence of the nuclearweapons-derived waste problems—might have resultedin a different focus if the same discussion were to occurtoday. Any reassessment of sustainability in radioactivewaste control should begin with the objective. The objec-tive of the radioactive waste chapter in Agenda 21 men-tions only “protecting human health and the environ-ment,” and does not identify prevention of the prolifera-tion of nuclear weapons materials as a related objective ofsound radioactive waste management.

The principles articulated in the Rio Declaration, how-ever, offer a number of useful criteria for measuring U.S.progress on sustainability in radioactive waste control.Of the 27 principles identified by the Rio Declaration, 5seem particularly relevant to the issue of radioactivewaste control:

1. Principle 3—Intergenerational Impacts. “Theright to development must be fulfilled so as to equi-tably meet developmental and environmentalneeds of present and future generations.”141

2. Principle 10—Openness and Public Participa-tion. “Environmental issues are best handled withthe participation of all concerned citizens, at therelevant level. At the national level, each individualshall have appropriate access to information con-cerning the environment that is held by public au-thorities, including information on hazardous ma-terials and activities in their communities.”142

3. Principle 13—Worker Compensation. “Statesshall develop national law regarding liability andcompensation for the victims of pollution andother environmental damage. States shall also co-operate in an expeditious and more determinedmanner to develop further international law re-garding liability and compensation for adverse ef-fects of environmental damage caused by activi-ties within their jurisdiction or control to areas be-yond their jurisdiction.”143

4. Principle 15—Precautionary Principle. “In or-der to protect the environment, the precautionaryapproach shall be widely applied by States accord-ing to their capabilities. Where there are threats ofserious or irreversible damage, lack of full scien-tific certainty shall not be used as a reason for post-poning cost-effective measures to prevent environ-mental degradation.”144

5. Principle 16—Internalize Costs and Use “Pol-luter-Pays” Principle. “National authoritiesshould endeavour to promote the internalizationof environmental costs and the use of economicinstruments, taking into account the approachthat the polluter should, in principle, bear the costof pollution, with due regard to the public inter-est and without distorting international tradeand investment.”145

The question of how well the United States has done in abid-ing by and promoting Agenda 21 and these principles is ad-dressed in the next section.

B. U.S. Progress and Backsliding on Rio Principles andAgenda 21 Activities

Although radioactive waste control did not receive exten-sive consideration in the Rio Summit and Agenda 21, theconsensus activities in Agenda 21 and many of the princi-ples articulated by the Rio Declaration provide useful cross-


32 ELR 11072 9-2002

138. Agenda 21, supra note 23, ¶ 22.

139. Id.

140. From the temporary ban in the London Dumping Convention.

141. Rio Declaration, supra note 11, princ. 3.

142. Id. princ. 10.

143. Id. princ. 13.

144. Id. princ. 15.

145. Id. princ. 16.

http://www.eli.org

cutting measures for evaluating the performance of theUnited States in the past decade. In addition to using thesecross-cutting measures, it is also useful to consider the prog-ress or backsliding in policies and management actions foreach waste type, which is addressed in Section V below.

During the decade since the Rio Summit, the UnitedStates participated in virtually all of the activities identifiedin Agenda 21 regarding radioactive waste control, and manyof the principles in the Rio Declaration have been applied inU.S. radioactive waste control.146 Nonetheless, there havealso been increasingly serious problems with sustainabilityin nuclear waste management, and many of the practicesthat have moved the United States ahead in sustainability ofradioactive waste control have been reversed or halted bythe new Bush Administration.

1. Management Activities

Agenda 21 included four major management activities:waste minimization; development of safety standards; tech-nology transfer support; and participation in planning, in-cluding emergency planning. The United States has partici-pated actively in all four activities to at least minimally ex-pected levels. Waste minimization and technology transferactivities are considered here.

Waste minimization, if pursued vigorously, is among themost useful and cost-effective environmental managementactivities. Unfortunately, the brief discussion of nuclearwaste management in Agenda 21 failed to recognize explic-itly a fundamental distinction in measuring waste mini-mization: the amount of waste per unit of activity should bereduced, not simply the total amount of waste, which can de-cline as a result of reduced production activity, e.g., eco-nomic recession or the end of the Cold War. Without ad-dressing the amount of waste per unit of activity, then whenthere is a resurgence of the waste-generating operation, e.g.,after a recession ends or an arms race restarts, the samewaste problems return.

The United States has successfully reduced the amountof radioactive waste produced in significant areas, suchas commercial low-level waste and high-level wastesfrom weapons production, but the different methods andcauses of the reductions are useful to examine. For com-mercial low-level waste, private industry generally re-duced the amount of waste per unit of activity.147 Theamount of high-level waste from nuclear weapons mate-rial production, however, was reduced largely by DOE’sdecreased level of nuclear weapons production, not moreefficient operations.

Neither of the activities resulted from a deliberate effortto pursue waste minimization as a goal because of its envi-ronmental benefits. As discussed below, low-level wastegeneration was cut because of economic pressures. High-level waste generation dropped because the end of the ColdWar caused an end to nuclear weapons materials production,which cut production reactor and reprocessing operations.

The United States has generally supported technologytransfer in radioactive waste control. For example, theUnited States has provided significant support to efforts tostabilize the failing sarcophagus at the Chornobyl reactor inthe Ukraine. This effort has also provided an opportunity forU.S. technology developers to demonstrate there devices,such as the “Houdini” robot that can lower into a confinedspace like a tank or rector vessel, and then unfolds tractorstreads and manipulator arms. However, there are troublingaspects that have not been fully resolved. Some technolo-gies promoted for radioactive waste control may presentsignificant nuclear proliferation concerns.

An example of such concerns can be found at theArgonne West Facility in Idaho, where DOE has spent mil-lions of dollars to develop a new reprocessing technology atthe Argonne West facility in Idaho. The technology, calledpyroprocessing,148 extracts weapons-usable uranium or plu-tonium from spent fuel. It was initially developed as part of“fast breeder reactor”149 program to produce new suppliesof plutonium and then “recycle” the waste into new fuel.Unfortunately, as with any nuclear waste reprocessing, thesame technology to recover plutonium or uranium for newfuel can be used to extract material for nuclear weapons, andcould present national security concerns.150 The UnitedStates has engaged in technology transfer programs withAsian countries to explore their possible use of this emerg-ing technology. The prospect of exporting this technologywith its potential nuclear proliferation implications hasraised concerns among some congressmen and NGOs. Sim-ilarly, the United States has cooperated with the Japanesegovernment to develop a “radioactive waste” processingtechnology known as “TRUMP-S,” which was initially de-veloped at the Santa Susanna Field Laboratory in the hillsnear Los Angeles in Ventura County, and later moved to therelatively more remote University of Missouri at Rolla.Similar concerns were raised about the proliferation risk as-sociated with this attempt to develop a radioactive wasteprocessing technology.

The United States has still not fully reconciled its desireto encourage economic development and transfer of radio-active waste control technologies, and the need to controlpotential proliferation risks, particularly in a world wherecompeting countries may not have the same scruples abouttechnology transfer issues. Future consideration of the roleof technology transfer in sustainable development shouldaddress this potential conflict with national security issues.


9-2002 32 ELR 11073

146. The application of these principles has not generally occurred as a re-sult of an explicit and conscious effort to abide by the results of theRio Summit. More likely the Rio principles already reflected ongo-ing U.S. policies, and the Agenda 21 activities set a low bar for ex-pectations, especially for an economically and technologically de-veloped country like the United States.

147. See low-level waste discussion infra.

148. Other names used to refer to the same technology have included“electrometallurgical refining,” “electrometallurgical treatment,” orsimply the “back end” of the integral fast reactor. DOE and theArgonne National Laboratory West staff have sought to use these se-mantic changes to mask the same technology against shifting publicand congressional concerns.

149. A “Fast Breeder Reactor” is sometimes promoted as part of a strat-egy for managing spent nuclear fuel and reducing the reliance onnewly mined uranium. It uses “fast” neutrons to “breed” new pluto-nium, so that there is more fissile plutonium “fuel” produced afteroperation than the amount of fuel consumed. Reprocessing is thenuse to extract this newly created plutonium. See Thomas B.

Cochran, Resources for the Future, The Liquid Metal Fast

Breeder Reactor: An Environmental and Economic Cri-

tique (1974).

150. International safeguards could theoretically deter the use of repro-cessing for obtaining materials for use in nuclear weapons. In fact,these safeguards have failed in the past. Moreover, the U.S.pyroprocessing technology was not designed to facilitate safe-guards inspections.

http://www.eli.org

2. International Cooperation and Coordination

U.S. support for international cooperation and coordina-tion—among activities identified in Agenda 21—has beenuneven. Generally, the United States has provided signifi-cant and broad support for international and regional coop-eration and coordination. However, this support has beenuneven, and self-interested. A couple of examples help il-lustrate the point.

In North Korea, the United States provided substantialsupport for improving management of nuclear materials.This support occurred as a result of an agreement betweenthe United States and North Korea, under which North Ko-rea would cease its efforts to develop nuclear weapons. Inreturn, the United States helped stabilize North Korean nu-clear fuel, which could have been converted to nuclearweapons material, and helped replace a North Korean nu-clear reactor that presented a significant proliferation riskwith another rector that had a more proliferation resistantdesign. Serious regional problems remain with nuclearnonproliferation, but, in this instance, the United States ad-dressed nuclear waste issues in North Korea when theythreatened U.S security interests, not local Korean environ-mental contamination.151

In Estonia, the United States provided at least $2 millionin technical assistance to stabilize a double reactor subma-rine propulsion prototype unit near Paldiski.152 Conse-quently, this stabilization facilitated the Russian removal ofweapons-grade uranium fuel from the facility in 1995.Through the Paldiski International Expert Reference Group,the United States demonstrated U.S. environmental tech-nologies while also helping Estonia perform environmentalcleanup and improve security at the facility.

These examples illustrate U.S. support for internationalcooperation when it coincides with U.S. security and com-mercial interests. Conditioning U.S. support in this mannermight be seen by some as “anti-globalist” because it fails topromote the broader common good. In the case of nuclearwaste control, however, limiting broad international supportcan be seen as prudent. If the United States were to provideunlimited international support to developing countries fornuclear waste control, it could also be viewed as a subsidy tohelp enable nuclear technologies where normal institutionalsystems and market forces cannot normally support them.

The International Cooperation and Development elementof Agenda 21 is comparable to a section of the Treaty on theNon-Proliferation of Nuclear Weapons that requires thatcountries “in a position to do so shall also cooperate in con-tributing alone or together with other States or internationalorganizations to the further development of the applicationsof nuclear energy for peaceful purposes.”153 Probably themost significant technology shared internationally is nu-clear reactor technology. The critical concern is that stan-dard reactors produce plutonium, which, if extracted, can be

used for nuclear weapons. In fact, some have argued that us-ing conventional nuclear reactors, such as light and pressur-ized water designs, pose an unavoidable nuclear prolifera-tion risk because of the potential for recovering plutoniumthrough reprocessing.154 One pioneering and long-time nu-clear engineer, Alvin Radkowsky, said: “If we don’t put astop to conventional uranium cores now, nuclear terror willensue, and the use of legitimate nuclear energy will bebarred worldwide.”155 To avoid this risk of nuclear weaponsmaterial proliferation from nuclear power, many observershave promoted the development of proliferation resistantfuels and reactors designs.156 Skeptics assert that even withnew fuel and reactor designs, residual plutonium and otherfissile materials, such as U-233, still present a proliferationrisk.157 A useful context to view this debate may be one ofrelative ease of proliferation: an intact warhead presents agreater risk than purified nuclear materials, which present agreater risk than spent nuclear fuel, which can serve as asource of purified nuclear materials, which is more readilyobtained from conventional reactors than one using a prolif-eration-resistant fuel. In this sense, U.S. efforts have appro-priately placed the greatest efforts on the most urgent issuesof protecting weapons usable fissile materials and the safetyof operational nuclear reactors, e.g., Chernobyl in theUkraine. The importance of nuclear waste as a potentialsource of fissile materials has not often been on the U.S. in-ternational agenda because of the preeminence of more ur-gent issues.

For virtually all of the principles articulated in the RioDeclaration, the U.S. experience since 1992 provides bothhope for greater sustainability, and significant cause forconcern about backsliding on previous efforts towardsustainability. This Article cannot presume to cover all ofthe principles articulated by the Rio Summit, but 5 of the 27Rio principles warrant consideration because they are par-ticularly applicable to radioactive waste management.

Principle 3—Intergenerational Impacts

The inherent long-lived nature of radioactive waste de-mands consideration of intergenerational issues. For manyhazardous wastes, treatment can reduce their persistence.


32 ELR 11074 9-2002

151. Remarks of Ambassador Robert Gallucci, Proliferation Prospects,Carnegie International Non-Proliferation Conference (Mar. 16,2000); Cirincione, supra note 73; and CEIP, Proliferation Brief, su-pra note 73.

152. Memorandum of Understanding, signed by Thomas P. Grumbly,U.S. DOE and Arvo Niitenberg of the Estonian Ministry of Econ-omy (Mar 13, 1995).

153. Treaty on the Non-Proliferation of Nuclear Weapons, Mar. 5, 1970,art. IV, cl. 2, 21 U.S.T. at 489, T.I.A.S. No. 6839 at 6, 729 U.N.T.S. at173.

154. Seth Grae, The Nuclear Non-Proliferation Treaty’s Obligation toTransfer Peaceful Nuclear Energy Technology: One Proposal of aTechnology, 1 Fordham Int’l L.J. 5 (1996).

155. Adam Bernstein, Alvin Radkowsky, 86, Dies; Pioneer of NuclearEnergy, Wash. Post, Feb. 22, 2002, at B7.

156. See Alex Galperin et al., Thorium Fuel for Light Water Reactors-Re-ducing Proliferation Potential of Nuclear Power Fuel Cycle, 6 Sci.

& Global Security 267-292 (1996); Robert H. Williams & HaroldA. Feiveson, How to Expand Nuclear Power Without Proliferation,Bull. of Atomic Scientists, Apr. 1990, available athttp://www.thebulletin.org/issues/1990/a90/a90williams.html;John S. Friedman, More Power to Thorium?, Bull. of Atomic Sci-

entists, Sept./Oct. 1997, available at http://www.thebulletin.org/issues/1997/so97/so97friedman.html; John P. Holdren et al.,

President’s Committee of Advisors on Science and Tech-

nology, Panel of Energy Research and Development, Fed-

eral Energy Research and Development for the Chal-

lenges of the 21st Century (1997) (report for Office of Scienceand Technology Policy, Executive Office of the President of theUnited States).

157. Arjun Makhijani, Nuclear Power: No Solution to Global ClimateChange, 6 Sci. for Democratic Action 1 (1998) and Edwin S.Lyman, Can the Proliferation Risks of Nuclear Power Be Made Ac-ceptable? (Nuclear Control Institute, 20th Anniversary Conference,Apr. 9, 2001).

http://www.eli.org

For even global environmental impacts, e.g., climatechange, reversing trends are possible, even if they requiresignificant technical, economic, and political effort. How-ever, the persistence of radioactive waste is dictated by theimmutable laws of physics, which reliably predict a fixedvirtually immutable half-life158 for each radionuclide. Manyradioactive wastes have half-lives of thousands of years, al-though they range from only a dozen years for tritium to bil-lions of years for U-238. Hence, we may be trading a fewseconds of time saved using “conveniences” like electriccan openers, for millions of years of commitment to safe-guarding the resulting nuclear waste.159

U.S. controls on most radioactive waste generally containexplicit, if imperfect requirements that long-term inter-generational impacts be considered. For example, EPA reg-ulations governing high-level and transuranic waste dis-posal both require that the disposal facility remain protec-tive for 10,000 years, and that active institutional controlsonly be considered a part of the protection for 100 years.160

These periods of time are longer than the periods of time thatgovern most human activities.

The issue of intergenerational impacts has tradition-ally been a focus of debates about geologic reposito-ries,161 and has certainly been studied as part of the re-pository design process, including the use of a sciencefiction-like markers system.162 In the wake of the largeamount of information made available about the perva-sive and persistent nature of radioactive waste and con-tamination, a broader recognition has developed that fu-ture land use restrictions will be required at hundreds ofsites, not merely a couple of geologic repositories.163

However, neither a complete understanding of the implica-tions, nor a mature ability to deal with this recognition, haveyet to evolve.164

The IAEA has begun an effort to address the need forlong-term records at radioactive waste burial sites.165 Theseinitial recordkeeping efforts do address a number of criticalissues that will be necessary for information about radioac-tive waste to be passed on effectively from generation togeneration, including nontechnical issues like public accessand the role of local governments.166

Principle 10—Openness and Public Participation

During the past 10 years, significant progress has been madein increasing public participation and improving the open-ness of the business of radioactive waste control. Much re-mains to be done, however, and some backsliding has al-ready begun. One of the first promising signs within the fed-eral government of opening up was the Executive Ordersigned in early 1993 that required federal facilities to com-ply with the “Right to Know” provisions of Superfund thatthey were otherwise exempted from. Although federal facil-ities have still not fully complied with the Executive Order,and still enjoy a statutory exemption, the data collected hasbeen useful in promoting waste minimization practices atfederal facilities.

The most dramatic changes in “openness” resulted fromthe initiative launched by then-Secretary of EnergyO’Leary.167 The relatively open atmosphere regarding gov-ernment information about radioactive waste has wanedsignificantly since that initial effort.168 It remains unclearwhether even legally required information about radioac-tive waste, such as draft EIS for public comment, will bemade available.169 The wholesale removal of radioactivewaste information from web sites began after PresidentGeorge W. Bush took office and accelerated after the ter-rorist attacks of September 11, 2001.170 The denial of ac-cess to information appears to have less to do with legiti-mate security needs than about an instinctive reflex to use


9-2002 32 ELR 11075

158. The time in which one-half the atoms of a particular radionuclidedisintegrate into another nuclear form. For example, Pu-238 has ahalf-life of 88 years; therefore after 88 years one-half the initialquantity of Pu-238 will have decayed into “daughter products,” i.e.,Pu-238 decays to U-234, which has a half-life of 234; U-234 decaysto thorium (Th)-230, which has a half-life of 75,400 years; Th-230decays to radium (Ra)-226, which has a half-life of 1,600 years;Ra-226 decays to lead which is stable.

159. For this reason, perhaps another principle from the Rio Declara-tion—Principle 8, regarding “unsustainable patterns of productionand consumption and promote appropriate demographic poli-cies”—could be applied. See Rio Declaration, supra note 11,princ. 8.

160. 40 C.F.R. §§191 and 194.

161. Kai Erikson, Out of Sight, Out of Our Minds: 12,001 A.D.: Are YouListening?, N.Y. Times (Magazine), Mar. 6 1994, Kai Erickson,

A New Species of Trouble (1994); National Academy of

Public Administration, Deciding for the Future: Bal-

ancing Risks, Costs, and Benefits Fairly Across Genera-

tions (1997); U.S. DOE, Sandia National Laboratories, Ex-

pert Judgement on Markers to Deter Inadvertent Human

Intrusion Into the Waste Isolation Pilot Plant (1994)(Sandia National Laboratories Report No. SAND92-1382/UC-721,1994); K.M. Trauth et al., DOE Permit Application for

WIPP App EPIC (1996) (APP EPIC entitled Effectiveness ofPassive Institutional Controls in Reducing Inadvertent Human In-trusion into the Waste Isolation Pilot Plant for Use in Perfor-mance Assessments).

162. U.S. DOE, Effectiveness of Passive Institutional Controls

in Reducing Inadvertent Human Intrusion Into the Waste

Isolation Pilot Plant for Use in Performance Assessments

(1996).

163. Katherine N. Probst & Michael H. McGovern, Long-Term

Stewardship and the Nuclear Weapons Complex: The

Challenge Ahead (1998); National Conference of State

Legislatures, State and Tribal Governments Working

Group, Stewardship Committee, Closure for the Seventh

Generation (1999); DOE/EM Report to Congress, supra note124; U.S. DOE, From Cleanup to Stewardship, supra note 124.

164. John Applegate & Stephen Dycus, Institutional Controls or Em-peror’s Clothes? Long-Term Stewardship of the Nuclear WeaponsComplex, 28 ELR 10631-52 (Nov. 1998); Katherine Probst, Re-

sources for the Future, Linking Land Use and Superfund

Cleanups: Uncharted Territory (1999).

165. IAEA, Waste Technology Section, Maintenance of Re-

cords for Radioactive Waste Disposal (1999)(IAEA-TECDOC).

166. ICF Kaiser, Managing Data for Long-Term Stewardship

(1998). See http://lts.apps.em.doe.gov/center/reports/doc1.html

167. See Section III.B., supra, entitled Commercial Nuclear WasteEclipsed by Nuclear Weapons Facilities’ Waste.

168. Jennifer Weeks, Will O’Leary Legacy Last?, 54 Bull. of Atomic

Scientists, Mar. 1998, at 11-14, available at http://ksgnotes1.har-vard.edu/BCSIA/Library.nsf/pubs/OLlegacy (last visited Apr. 25,2002); Brian Costner, Access Denied, Bull. of Atomic Scien-

tists, Mar./Apr., 2002, at 58-62.

169. A 1998 settlement agreement between the NRDC and DOE re-quired that a database of radioactive waste information be madeavailable. See Natural Resources Defense Council v. Richardsonet al., Civ. No. 97-936 (SS) (D.D.C. 1998). DOE has failed to pro-vide the required data to make the database operational and since2001, DOE has failed to update the data as required by the settle-ment agreement.

170. Costner, supra note 168.

http://www.eli.org

security as a pretense to avoid disclosure of “embarrass-ing” information.171

Principle 13—Worker Compensation

Under Principle 13:

States shall develop national law regarding liability andcompensation for the victims of pollution and other envi-ronmental damage. States shall also cooperate in an ex-peditious and more determined manner to develop fur-ther international law regarding liability and compensa-tion for adverse effects of environmental damage causedby activities within their jurisdiction or control to areasbeyond their jurisdiction.172

Despite widespread popular attention to environmentalproblems, workers are, in fact, most at risk of exposure andadverse health effects from radioactive wastes.173 For de-cades, however, when workers sought to draw attention tohealth safety risks, they often faced retaliation and blacklist-ing in both commercial nuclear plants and government nu-clear weapons facilities. Worker safety and health was ig-nored at DOE facilities174 because of the same culture thatcaused DOE to ignore environmental problems—produc-tion of nuclear weapons was a top priority far above the sta-tus of environmental protection or worker health andsafety.175 For government workers, accountability has beenseverely limited because DOE is self-regulating with regardto worker health and safety, and the agency and its contrac-tors have operated behind a veil of secrecy throughout theCold War. The government routinely sought to cover upharm to workers, justifying it on the grounds that tellingworkers about their risks would lead to embarrassment, un-ion demands for hazardous duty pay, and increased numbersof worker compensation cases.176

For example, between 1953-1977, the Paducah GaseousDiffusion Plant in Kentucky used uranium oxide contami-nated with Pu-239 and neptunium-237. Production workers,however, were not told about or monitored for these morehazardous isotopes until the mid-1990s—almost 40 yearsafter workers were exposed, and only after these same iso-topes were found in groundwater (neptunium-237 is 2,000times more radioactive per unit of mass than uranium). A1960 Atomic Energy Commission (AEC) memo reportedthat, “there are possibly 300 people at Paducah who shouldbe checked for neptunium, but they [the AEC contractor] arehesitant to proceed with intensive studies because of the un-ion’s use of this as an excuse for hazard pay.”177

Studies about harm to workers were also kept secret. A1949 AEC memo on gamma radiation exposure to LosAlamos workers’ blood stated:

We can see the possibility of a shattering effect on themorale of employees if they become aware that therewere substantial reasons to question the standards ofsafety under which they were working. In the hands oflabor unions the results of this study would add sub-stance to the demands for extra-hazardous pay . . .knowledge of the results of this study might increase thenumber of claims of occupational injury due to radiationand place a powerful weapon in the hands of a plaintiff’sattorney.178

Since 1992, however, two events improved the situationfor individual employees, but the overall problem of DOEself-regulation remains intractable. First, a knowledgeableDOE analyst and critic from the congressional Office ofTechnology Assessment,179 Dr. Tara O’Toole, was ap-pointed as the Assistant Secretary of DOE for Environment,Safety, and Health. Dr. O’Toole led reform efforts withinDOE, including strengthening DOE’s use of internal over-sight and penalties against nonconforming contractors re-garding occupational safety and health issues.180 She led aninitiative to encourage modern integrated safety manage-ment techniques to involve all workers in safety planning.181

She supported an open investigation of human radiation ex-periments conducted by the government and its contractors.


32 ELR 11076 9-2002

171. Memorandum from Andrew H. Card Jr., Assistant to the Presidentand Chief of Staff, to the Heads of Executive Departments andAgencies (Mar. 19, 2002).

172. Rio Declaration, supra note 11, princ. 13

173. Worker vulnerability is a function of proximity, which is one ofthe three fundamental principles of health physics protectionfrom ionizing radiation: (1) distance from a source, (2) shielding,and (3) duration.

174. The blatant disregard for worker health and safety was probablymore severe and lasted longer at DOE facilities than private nuclearfacilities perhaps because of the continued inadequacy of independ-ent external regulation at DOE facilities. Also, DOE facilities haveoften hid behind the cloak of “national security” secrecy as a pre-tense for obscuring issues and withholding information. See gener-ally James D. Werner, Secrecy and Its Effect on EnvironmentalProblems in the Military: An Engineer’s Perspective, 2 N.Y.U.

Envtl. L.J.351 (1993).

175. According to William A. Vaughn, DOE Assistant Secretary for En-vironmental Protection, Safety, and Emergency Preparedness from1981-1984: “There was a military culture throughout the agency, abunker mentality. People saw their role as meeting the requirementsfor defense. Other things, of necessity, came second, including envi-ronmental, safety and health programs. Every penny that went tosafety programs was a penny taken from manufacturing nuclear war-heads.” N.Y. Times, Nov. 1988.

176. A 1947 letter from the AEC Director of Oak Ridge Operations to theAEC General Manager states:

Papers referring to levels of soil and water contamination sur-rounding AEC installations, idle speculation on future ge-netic effects of radiation and papers dealing with potentialprocess hazards to employees are definitely prejudicial to thebest interests of the government. Every such release is re-flected in an increase in insurance claims, increased difficultyin labor relations and adverse public sentiment.

J.C. Franklin, Director, Oak Ridge Operations, to Carroll L. Wilson,AEC General Manager 2-3 (Sept. 26, 1947) (“Medical Policy”)(ACHRE No. DOE-113094-B-3); quoted in Final Report, Advi-

sory Committee on Human Radiation Experiments 627(1995), available at http://www.eh.doe.gov/ohre/roadmap/achre/chap13_3.html (last visited June 3, 2002).

177. Hearings Before the Subcomm. on Immigration and Claims of theHouse Judiciary Comm. (Sept. 21, 2000) (testimony of Richard D.Miller, citing an AEC memorandum, AEC, Neptunium-237 Con-

tamination Problem, Paducah, Kentucky (Feb. 4, 1960)).

178. U.S. DOE, Advisory Committee on Human Radiation, Final

Report of the Advisory Committee on Human Radiation Ex-

periments 629 (1995).

179. Congress eliminated the Office of Technology Assessment (OTA)in 1995,ostensibly for budget reasons, but it was widely regarded asretribution for criticism by OTA of President Ronald Reagan’s andPresident George H.W. Bush’s policies, including Star Wars and theradioactive waste problems in the nations nuclear weapons facilities.Archive OTA publications remain available at, OTA Publications, athttp://www.wws.princeton.edu/~ota/ns20/year_f.html (last visitedApr. 26, 2002), and remain a unique and useful source of technicalpolicy information.

180. See U.S. DOE, Price-Anderson Enforcement Program, athttp://www.eh.doe.gov/enforce/ (last visited June 3, 2002).

181. See U.S. DOE, ISM Resources, at http://www.eh.doe.gov/ism/ (lastvisited June 3, 2002).

http://www.eli.org

Second, a series of scandals and coverups continued tohighlight the problems of worker exposure to radioactivewastes and materials at DOE facilities. At the Mound facil-ity in Ohio, a lawsuit by the Oil, Chemical, and AtomicWorkers Union182 publicly revealed that DOE had failed tomonitor radiation worker exposures when bioassay sampleshad been left unanalyzed for three years. Litigation at theFernald, Ohio, facility revealed that between 1952 and 1962(excluding one year) over one-half of the production work-ers who were measured were exposed to uranium levels tothe lung that exceeded the prevailing standard of 15 rem.183

The AEC, which used beryllium as a critical element of nu-clear weapons production, and private beryllium vendor op-erations allowed workers to contract the deadly chronic be-ryllium disease. This apparent conspiracy was exposed inMarch 1999 as part of a 22-month investigation by the To-ledo (Ohio) Blade. The investigation “shows that the U.S.government clearly knew, decade after decade, that workersin the private beryllium industry were being overexposed tothe hard, lightweight metal, which produces a toxic dustwhen manufactured or machined.”184 When safety regula-tors tried to protect workers, they were deterred by an over-whelming alliance: the beryllium industry and the defenseestablishment. Protection of the industry has reached all theway to the White House cabinet, where in the 1970s Presi-dent Jimmy Carter’s U.S. Department of Defense and DOEsecretaries helped kill a safety plan. According to a letterU.S. Energy Secretary James Schlesinger wrote to two cabi-net members at the time, they feared the plan would cut offberyllium supplies for weapons, and that would “signifi-cantly and adversely affect our national defense.”

Meanwhile workers with beryllium disease were deniedstate workers compensation due to legal obstacles that re-quired workers to file workers compensation claims within300 weeks of their last injurious exposure.185 Chronic beryl-lium disease has a latency of 10 years or more, and workersthat could not prove exposure within 300 weeks were unableto sue their employers directly under workers compensationor any other legal doctrine because workers compensation isthe “exclusive remedy” for workplace illness, unless a sickworker can show the employer intended to harm them.

An enterprising young USA Today reporter named PeterEisler reconstructed the story of worker exposures at sitesthat—unlike Hanford, Oak Ridge, or Los Alamos—wereowned not by the government, but by private vendors. These

workers were exposed to high levels of radioactive materi-als, such as thorium and uranium, without warning or evenminimal protections. In a remarkably candid admission,then-Secretary of Energy Bill Richardson admitted thatconcerns about workers at these sites had “fallen off themap.”186

Media investigations followed into the plight of sickworkers in Kentucky, Ohio, and New Mexico.187 Thanks toa strong push from then-Secretary Richardson and AssistantSecretary David Michaels and a bipartisan coalition led bylabor unions, Congress188 passed a landmark worker com-pensation bill, which provides payments to current and for-mer nuclear workers and their surviving family members.189

This new compensation law federalizes worker compen-sation for cancer, chronic beryllium disease, or silicosis,through a $150,000 lump sum payment and medical bene-fits for former DOE and DOE contractor employees. Whatmakes the law significant is that it codifies the principle thatthe burden of proof should shift to the government in caseswhere workers were put in harms way without their knowl-edge or consent and subsequently fell ill.190 Further, thecompensation proceedings are nonadversarial because theemployer cannot participate in or oppose compensation de-cisions.191 The new compensation law also designatesworkers at four sites (Oak Ridge K-25, Paducah, Ports-mouth (Ohio), and Amchitka Island Test Site (Alaska)) asmembers of a Special Exposure Cohort, who automaticallyreceive compensation if they are afflicted with 1 of 21“radiosensitive” cancers—on the principle that they werenot monitored and it would not be feasible to credibly es-tablish their radiation doses many years later.192 The gov-ernment, upon petition, may add other workers to these


9-2002 32 ELR 11077

182. Now part of the Paper, Allied Industrial, Chemical, and Energy(PACE) Workers International Union.

183. Arjun Makhijani, Fernald Workers Radiation Exposure, 5 Sci. for

Democratic Action 3 (2002), available at http://www.ieer.org/sdafiles/vol_5/5-3/fernwork.html (last visited Apr. 26, 2002).

184. Sam Roe, Deadly Alliance: How Government and Industry ChoseWeapons Over Workers, Toledo Blade (Special Report), avail-able at http://www.toledoblade.com/apps/pbcs.dll/artikkel?Kategori=SRDEADLY01&Dato=19990328&Lopenr=9999099&Ref=ARAlso (last visited June 3, 2002). See also earlier reports on extent ofoverexposure to beryllium in AEC reports produced by the Healthand Safety Laboratory (HASL) in the 1950s and 1960s: Occupa-tional Exposure to Airborne Contaminants, Brush Beryllium Com-pany, Elmore, Ohio, Sept. 26, 1962, AEC-HASL Technical Memo-randum 62-24, Occupational Exposure to Airborne Beryllium, Be-ryllium Corporation, Reading, Pa., Sept. 7, 1961, HASL 61-8B, Oc-cupational Exposure to Airborne Beryllium, Beryllium Corporation,Hazelton, Pa., Mar. 20, 1962, HASL 62-8.

185. State of Pennsylvania Worker Compensation Code; see also Exec.Order No. 13179, 65 Fed. Reg. 77487 (Dec. 1, 2000) (providingCompensation to America’s Nuclear Weapons Workers).

186. Peter Eisler, Poisoned Worker, Poisoned Places, USA Today,Sept. 6, 2000, at 15, available at http://www.usatoday.com/news/poison/012.htm (last visited Apr. 26, 2002).

187. Michael Flynn, A Debt Long Overdue, Bull. of Atomic Scien-

tists, July/Aug. 2001, at 38-48, available at http://www.thebulletin.org/issues/2001/ja01/ja01flynn.html (last visited Apr. 16, 2002);Arjun Makhijani, The Burden of Proof, Bull. of Atomic Scien-

tists, July/Aug. 2001, at 45-54, available at http://www.thebulletin.org/issues/2001/ja01/ja01makhijani.html (last visited Apr. 26,2002); Robert Alvarez, Making It Work: Will the Legislation Do theJob, Bull. of Atomic Scientists, July/Aug. 2001, at 55-57, avail-able at http://www.thebulletin.org/issues/2001/ja01/ja01alvarez.html (last visited Apr. 26, 2002); The Sites, Bull. of Atomic

Scientists, July/Aug. 2001, at 58-60, available at http://www.thebulletin.org/issues/2001/ja01/ja01sites.html (last visited Apr. 26,2002).

188. Regrettably, broad support from environmental NGOs was tepid be-cause they sought compensation for surrounding communities aswell as workers, despite the fact that there was no political supportfor such a far-reaching bill.

189. Energy Employees Occupational Illness and Compensation Pro-gram Act of 2000, Pub. L. No. 106-398, 114 Stat. 1654; 20 C.F.R.pts. 1 and 30; Performance of Functions Under This Chapter; Claimsfor Compensation Under the Energy Employees Occupational Ill-ness Compensation Act; Final Rule, 66 Fed. Reg. 28948 (May 25,2001).

190. Pub. L. No. 106-398, 114 Stat. 1654, tit. XXXVI, §3626; 20 C.F.R.pts. 1 and 30; Performance of Functions Under This Chapter; Claimsfor Compensation Under the Energy Employees Occupational Ill-ness Compensation Act; Final Rule, 66 Fed. Reg. 28948 (May 25,2001).

191. See 20 C.F.R. pt. 30, sbpt. D (U.S. Department of Labor, Office ofWorker Compensation Programs, Hearings and Final Decision onClaims).

192. Energy Employees Occupational Illness and Compensation Pro-gram Act of 2000, Pub. L. No. 106-398, 114 Stat. 1654, tit. XXXVI,§3626(14).

http://www.eli.org

Special Exposure Cohorts who “may have been endan-gered” and “it is not feasible to estimate radiation dosewith sufficient accuracy.”193 Claims could be filed begin-ning July 31, 2001,194 and in the first six months, approxi-mately 25,300 workers or their survivors have filed claimsfor compensation.195

Although much remains to be done to address workerhealth and safety in radioactive waste control, acknowl-edgement by DOE that workers had been harmed, combinedwith the new compensation legislation, has somewhat im-proved the situation for workers. Unfortunately, DOE isbacksliding toward its insular culture of self-regulation andcontractor self-assessments, thus reversing the momentumtoward greater contractor accountability and safety that wasdeveloped in the 1990s.

Principle 15—Precautionary Principle, Health Effects,and Hormesis

Given the extraordinarily long time periods relevant to ra-dioactive waste management, and the remaining uncertaintyabout long-term health effects—especially reproductiveand genetic effects—the precautionary principle is particu-larly appropriate to apply to radioactive waste control. Yet,it is exactly in this area where a significant battle broke outduring the past decade regarding health effects from ioniz-ing radiation, and could cause a weakening of the traditionalapplication of the precautionary principle in radioactivewaste control. Some critics have contended that the precau-tionary principle fails to address the costs of “over regula-tion,” such as economic losses and opportunity costs.196

Standards for exposure to radioactivity have been devel-oped based largely on research from victims of atomicbombs in Hiroshima and Nagasaki. After a series of studiesover several decades,197 the National Academy of Sciencespublished in 1990 what was regarded as a landmark reportthat examined comprehensively available data on radiationexposure.198 This report, like most other analyses and radia-tions exposure standards on which they are based, uses aso-called linear no-threshold model, which assumes thatthere is a direct 1:1 relationship between radiation exposureand health effects. Some critics have asserted that no proofof the linear no-threshold model exists, and therefore a

threshold could be established below which exposures areacceptable,199 even therapeutic.200

The data thus far is inadequate to support any threshold,and the proponents of adopting a threshold and discardingthe traditional linear no-threshold model have often ap-peared to be seeking evidence to support their theory, ratherthan pursuing an objective analysis of available data. Cer-tainly adopting anything other than the linear no-thresholdmodel would be departing from the precautionary principlerecommended in the Rio principles.

Principle 16—Internalize Costs and Use “Polluter-Pays”Principle

The goal of internalizing costs is perhaps the most problem-atic of the Rio principles for the United States or any countryto address. First, the intergenerational nature of radioactivewaste almost guarantees that some of the costs for managingradioactive wastes will be borne by future generations,rather than the people who benefitted from the electricpower or nuclear weapons.201 Radioactive wastes frommedical research, however, are typically relatively short-lived and consequently it is conceivable that its costs couldbe borne by the same generation, if not the same individuals,as the beneficiaries. Some proposals have been made for es-tablishing trust funds,202 and a limited trust fund has been es-tablished for a disposal site in Oak Ridge, Tennessee.

Another concern about who bears the costs for radioac-tive waste controls is the special arrangement for insurancecoverage of nuclear power and related activities. In theUnited States, the so-called Price-Anderson law establishesa cap on the liability of nuclear power plant operators.203 Itwas enacted in 1957 to help encourage private companies toget involved in the then nascent nuclear power business, andit was strengthened in the wake of the Three Mile Island ac-cident when many companies feared potentially astronomi-


32 ELR 11078 9-2002

193. Id. §3626(b)(1).

194. Id. §3626.

195. U.S. Department of Labor, Energy Employees Compensation Pro-gram, at http://www.dol.gov/esa/regs/compliance/owcp/eeoicp/WeeklyStats.htm (last visited June 3, 2002).

196. See, e.g., Henry I. Miller & Gregory Conko, The Perils of Precau-tion, Policy Rev., at http://www.policyreview.org/jun01/miller.html (last visited June 3, 2002); Indur M. Goklany, Applying the Pre-cautionary Principle to Global Warming, Center for the Study ofAmerican Business, Washington University, St. Louis (Policy StudyNo. 158, Competitive Enterprise Institute, Nov. 2000).

197. The National Academy of Sciences, National Research

Council, Advisory Committee on the Biological Effects of

Ionizing Radiation, Biological Effects of Ionizing Radia-

tion (BEIR)-I, The Effects on Populations of Exposure to

Low Levels of Ionizing Radiations (1972); and The National

Academy of Sciences, National Research Council, Advi-

sory Committee on the Biological Effects of Ionizing Radi-

ation BEIR-III, The Effects on Populations of Exposure to

Low Levels of Ionizing Radiation (1980).

198. National Academy of Sciences, Committee on the Biologi-

cal Effects of Ionizing Radiation, Health Effects of Expo-

sure to Low Levels of Ionizing Radiation BEIR V (1990).

199. J. Puskin & N. Nelson, Risks From Low Doses of Radiation, 272 Sci-

ence 631-32 (1996); and Sen. Pete V. Domenici, Future Perspec-tives on Nuclear Issues, Issues in Sci. & Tech., Winter 1997-1998,at 53-59.

200. The notion of “hormesis” asserts that, below a certain dose level, ra-diation (or other “poisons”) can be good for you. See generally B.L.Cohen, Test of the Linear No-Threshold Theory of RadiationCarcinogenesis for Inhaled Radon Decay Products, 68 Health

Physics 157-74 (1995). R.M. Macklis & B. Beresford, RadiationHormesis, 32 J. of Nuclear Med. 350 (1991).

201. Others argue that the economic benefit from generating electricpower is cumulative, and that the national security benefits are inher-ited by future generations. These issues are not pursued here becauseof the obvious questions about the economic value of continuingU.S. energy inefficiency that could obviate the need for significantamounts of nuclear power generation, e.g., air conditioning emptybuildings, lighting the Las Vegas strip, or operating antiquated re-frigerators. Also, the exact role of nuclear weapons production in“winning the Cold War,” particularly the specific scale of nuclearweapons production and the waste management methods used, is notclear. Stephen I. Schwartz, Four Trillion Dollars and Counting,Bull. of Atomic Scientists, Nov./Dec. 1995 and Atomic Audit:

The Costs and Consequences of U.S. Nuclear Weapons

Since 1940 (Stephen I. Schwartz ed., 1998).

202. See implications cited in National Academies of Sciences, Na-

tional Research Council, Board on Radioactive Waste,

Committee on Buried and Tank Wastes, Long-Term Institu-

tional Management of U.S. Department of Energy Legacy

Waste Sites (2000); Carl Bauer & Katherine N. Probst,

Long-Term Stewardship at Contaminated Sites: Trust

Funds as Mechanisms for Financing and Oversight (Re-sources for the Future Discussion Paper No. 00-54, 2000).

203. 42 U.S.C. §2210.

http://www.eli.org

cal liabilities. Proponents argue that without this support,they could not operate because private insurance is notavailable or is prohibitively expensive. Moreover, they ar-gue, the indemnification supports cleanup contractors andlocal governments who might be involved in emergency re-sponse, for example, related to radioactive waste shippingaccidents.204 Opponents, including both liberals and conser-vatives, call the law a “subsidy” and “corporate welfare.”205

Proponents respond that virtually all energy industries re-ceived some form of government subsidy, such as access towestern lands for the coal industry.

Finally, the long-term costs for post-cleanup stewardshipof commercial nuclear sites could be borne by taxpayers,under a little known provision of the Nuclear Waste PolicyAct.206 Although the law does not require, but only autho-rizes DOE to take responsibility for long-term stewardshipof private nuclear sites, few involved with the issue expectthat the funding from private bonds will be sufficient tocover long-term costs, and government support will eventu-ally be required.

To the extent that the waste and liability producing prac-tices are subsidized and fail to internalize the full costs ofdoing business, the same practices will continue to produceenvironmental problems.

V. U.S. Sustainability Progress and Backsliding forVarious Types of Radioactive Waste

Because of the relatively brief consideration given to radio-active waste control in the Rio Summit and Agenda 21, andbecause of the significant differences between radioactivewaste types, a more detailed treatment for each type of wasteis useful.

A. High-Level Waste and Spent Nuclear Fuel

The logjam regarding disposal of high-level waste and spentnuclear fuel did not break during the 1990s, but merelyshrugged as battles raged along traditional lines.207 Despitesignificant efforts and motion, there has been some impor-tant progress in certain areas, e.g., reducing the risk of ex-plosions from waste tanks and initiating waste vitrificationoperations, but little fundamental progress in high-levelwaste management. Perhaps the principle cause of the con-tinuing impasse, is that the issue of high-level waste and

spent nuclear fuel from nuclear power reactors is seen, byboth pro- and anti-nuclear advocates, as a stalking horse forthe viability for nuclear power.208 In the decade since theRio Summit, the bottom line for high-level waste remainsthe same: there is no long-term repository for high-levelwaste or spent nuclear fuel in any country, including theUnited States. Also, virtually all of the high-level waste thatwas generated during the Cold War remains stored in under-ground tanks that were not designed to contain high-levelwaste for long periods of time.

This section will address spent nuclear fuel andhigh-level waste from nuclear weapons production as wellas from commercial nuclear power plants. The NuclearWaste Policy Act (NWPA)209 set January 31, 1998, as thedeadline for the federal government to begin taking spentnuclear fuel from utilities. When commercial utilities andpublic utility commissions sued DOE, the U.S. Court of Ap-peals for the D.C. Circuit held that the DOE was requiredunconditionally to accept spent nuclear fuel from utilitiesregardless of whether a geologic repository or other particu-lar type of facility for handling spent fuel was in opera-tion.210 DOE has spent several billion dollars on researchingand “determining the suitability”211 for a nuclear waste re-pository at Yucca Mountain in Nevada, leading to a recom-mendation to Congress in early 2002.212 Although DOE hasnot physically taken any spent fuel from utilities,213 DOEhas offered reduced nuclear waste fund fees to compensateutilities, although this arrangement is being disputed.214

During the 1990s, Congress voted several times to establisha “temporary” storage site for commercial spent nuclear


9-2002 32 ELR 11079

204. See Nuclear Energy Institute, Fact Sheet: Nuclear Insurance, athttp://www.nei.org/doc.asp?Print=true&DocID=&CatNum=3&CatID=611 (last visited Apr. 26, 2002).

205. Jill Lancelot, Taxpayers for Common Sense, Price-Ander-

son Act: Special Subsidies and Protections for the Nuclear

Industry (2001), available at http://www.progress.org/nuclear04.htm (last visited Apr. 16, 2002); Barry Brownstein, The Price-An-derson Act: Is It Consistent With a Sound Energy Policy?, Pol’y

Analysis, Apr. 17, 1984; and Ben Zycher, Accounting for Costsand Cost Biases (Nuclear Power), 15 Regulation, Spring 1992.

206. NWPA §151(b), 42 U.S.C. §10171(b). Another section—NWPA§151c, 42 U.S.C. §10171(c)—imposes nondiscretionary duty onDOE to take responsibility for long-term stewardship of sites in-volved with hafnium or other rare earth elements, which have thusfar included only the AMAX site in West Virginia.

207. For representative arguments for and against interim storage atYucca Mountain, see Matthew L. Wald, Senate Approves Tempo-rary Site in Nevada for Nuclear Waste, N.Y. Times, Apr. 16, 1997,at 16 and Brad Knickerbocker, U.S. Lawmakers Collide Over Whereto Dump Nuclear Waste, Christian Sci. Monitor, July 17, 1996,at 1.

208. Pro-nuclear advocates sometimes argue that nuclear waste is areadily solvable technical problem and that only “politics” stands inthe way. Their argument is colored by the context that unless the nu-clear waste problem is “solved” then public, political, and investoruneasiness with nuclear power would continue and grow. Anti-nu-clear activists have been accused of using the continuing impasseover nuclear waste as a pretense for fanning flames of public fearover nuclear power, and “solving it” would eliminate one of theirmost useful organizing tools. From a sustainability perspective, thefact that nuclear waste lasts virtually forever and has been generatedfor decades without a demonstrated disposal method violates a basictenet of sustainability.

209. 42 U.S.C. §§10101-10270; 10 C.F.R. pts. 60, 72.

210. Indiana Michigan Power Co. v. Department of Energy, 88 F.3d1272, 26 ELR 21406 (D.C. Cir. 1996).

211. U.S. General Accounting Office (GAO), Nuclear Waste:

Technical, Schedule, and Cost Uncertainties of the Yucca

Mountain Repository Project (2001), available athttp://www.GAO.gov.

212. Based on a recommendation by DOE, President George W. Bush onFebruary 15, 2002, recommended to Congress that the Yucca Moun-tain site in Nevada be designated and developed as the permanent re-pository for “spent nuclear fuel and high-level nuclear waste.” See42 U.S.C. §10134 (distinction in original) (legal authority for thepresident to designate the site). A seminal book on the subject arguedthat eliminating the political power of a host community to object asiting decision was the only way that high-level waste repositorycould successfully be sited. See Luther J. Carter, Nuclear Im-

peratives and Public Trust: Dealing With Radioactive

Waste (1987).

213. DOE has previously accepted for storage and reprocessing signifi-cant amounts of spent nuclear fuel from commercial nuclear powerplants. For example, DOE took possession of the spent fuel and de-bris in the 1980s from the 1979 Three Mile Island plant accident, andshipped it to a DOE facility in Idaho. Other spent fuel was shippedfrom utilities in Michigan and New York to the West Valley site inupstate New York for reprocessing.

214. Alabama Power Co. v. Department of Energy, No. 00-16138-J (11thCir. 2000).

http://www.eli.org

fuel near the Yucca Mountain site in Nevada. But, afterPresident William J. Clinton vetoed the bill, Congress wasunable to muster a veto-proof majority, usually by a singlevote.215 On July 9, 2002, the logjam was broken when theU.S. Senate voted overwhelmingly in support of the BushAdministration’s recommendation that Yucca Mountain beconsidered for development as America’s first nuclearwaste depository. The 60 to 39 vote overrode Nevada Gov.Kenny Guinn’s (D.) attempt to block the proposal. DOEnow must obtain a license from the Nuclear RegulatoryCommission (NRC) for the facility, a process that couldtake up to five years. No waste is expected to be moved be-fore 2010, the earliest the site can be ready.

During the past decade, an effort to identify a volunteercommunity for “temporary” storage of high-level waste andspent nuclear fuel failed. The NWPA established an Officeof Nuclear Waste Negotiator to induce communities withannual payments of $5 million prior to receiving spent fueland $10 million per year until the facility was closed. DOEreceived several applications for initial planning funds, butnone of the communities ever received any waste. Of thethree counties that were funded, two applications wereblocked by their respective governors (who had initially as-sented to the process), and the responsible officials in an-other county were removed from office in a recall elec-tion.216 The only locations still being considered for tempo-rary nuclear waste storage are Indian reservations, resultingin charges of environmental racism.217 Authority for the Nu-clear Waste Negotiator’s Office expired in January 1995.

The lack of a repository pressures nuclear power plantsnationwide to improve operational efficiency, coaxing asmuch power as possible from their fuel before it becomesspent fuel and ends up in on-site storage pools. But, spentfuel storage pools have a definite capacity, and filling themto capacity can create not only physical but also financialand political pressure on a utility. When a storage pool isfilled, a utility may need to seek NRC permission to“rerack” the fuel or build additional storage space with an-other pool, or using dry cask storage. So, retarding the rate atwhich spent fuel is generated becomes a critical cost-reduc-tion measure for utilities in an increasingly competitive andoften deregulated market environment that resulted in sig-nificantly higher capacity or load218 factors219 and shorterdown times for maintenance and refueling. Similar con-cerns about lack of disposal options and the need for cost-re-duction also led to waste minimization efforts in low-levelwaste activities, discussed below.

Questions raised by a high-level waste repository areamong the most complex and intractable issues confronting

any nation in the world. The United States has no magicwand, but it differs from other countries tasked with thisproblem in one respect: it has constructed and begun ship-ping certain nuclear weapons-related wastes to a deep geo-logic repository—the WIPP220 site in southeast New Mex-ico.221 Although storing spent nuclear fuel in pools at nu-clear power plants has not yet resulted in significant envi-ronmental contamination,222 it is clearly not a sustainablesolution. Dry cask storage offers the potential to abate muchof the “crisis” concern about filling spent nuclear fuel stor-age pools for a significant period of time.

Recently increased concerns about terrorist strikes at nu-clear power plants have heightened the urgency to improvethe safety of on-site storage, and establish longer term stor-age or permanent disposal site(s). The issue of establishingan alternative storage or disposal site is not simple. A singlesite could be more vulnerable to terrorist attack because ofthe high concentration of a larger amount of waste, althoughdry cask storage would be significantly less vulnerable thana single or large pools containing spent nuclear fuel. Also,significant long-term uncertainties remain about the safetyof a permanent repository. Consequently, some analystshave recommended long-term interim storage to improvesafety and reduce pressure on establishing a repository in aforced technical and political environment.223 This solutionwould be a more sustainable, though not a permanent solu-tion to high-level waste and spent nuclear fuel management.While Secretary of Energy Spencer Abraham recently citedsecurity concerns in the wake of the September 11 attacks asjustification for relocating high-level waste from surfacestorage to Nevada.224 others note that spent nuclear fuel andhigh-level waste will remain at the same “temporary” stor-age locations for as long as the facilities operate.225

Traditionally, spent nuclear fuel slated for nuclear weap-ons production in the United States was reprocessed using a


32 ELR 11080 9-2002

215. For summaries, see Mark Holt, Civilian Nuclear Spent Fuel

Temporary Storage Options (Congressional Research ServiceReport No. 96-212 ENR, 1998) and Congressional Research

Service, Civilian Nuclear Waste Disposal (Congressional Is-sue Brief No. 92059, 2000).

216. M.V. Rajeev Gowda & Doug Easterling, Nuclear Waste and NativeAmerica: The MRS Siting Exercise, 229 Risk: Health, Safety &

Env’t 233 (1998).

217. Nancy B. Collins & Andrea Hall, Nuclear Waste in Indian Country:A Paradoxical Trade, 12 L. & Inequality J. 267, 303 (1994);Gowda & Easterling, supra note 216, at 246-48.

218. The term capacity factor is more technically accurate, because it re-fers to the net capacity of a plant to produce power. The ore com-monly (mis)used load factor refers to utilization of the power.

219. The load factor is the percentage of time a plant is operating and pro-ducing power.

220. The WIPP is the Waste Isolation Pilot Plant, see the discussion ofTRU waste in Section II.D. infra.

221. Although the waste emplacement operation at WIPP is touted bysome as evidence that the “nuclear waste problem is being solved,”the evidence that WIPP is performing adequately may be thousandsof years away. Also, there is some concern that this first repository inNew Mexico could become the nation’s only repository, and that itwill be used later for disposal of high-level waste and spent nuclearfuel as well as TRU wastes. High-level waste and spent nuclear fueldisposal in WIPP is currently prohibited by §12 of the WIPP LandWithdrawal Act. Waste Isolation Pilot Plant Land Withdrawal Actof 1992, Pub. L. No. 102-579, §12.

222. The lack of significant contamination from the storage of spent fuelat private nuclear power plants contrasts sharply with the contamina-tion and waste storage safety problems resulting from the govern-ment’s reprocessing of spent fuel by the government for producingnuclear weapons materials, in one of the few instances where theterms “massive,” “extraordinary,” and “vast” are appropriate. SeeLinking Legacies, supra note 24.

223. See Matthew Bunn et al., Interim Storage of Spent Nuclear

Fuel: A Safe, Flexible, and Cost-Effective Near-Term Ap-

proach to Spent Nuclear Fuel Management (2001) (HarvardUniversity Project on Managing the Atom and University of TokyoProject on Nuclear Energy).

224. Letter from Spencer Abraham, Secretary of Energy, to the PresidentGeorge W. Bush, on site recommendation (Feb. 14, 2002); NWPA§114(a)(1) 42 U.S.C. §10134 (authority to designate site); U.S.

DOE, Recommendation of the Secretary of Energy Re-

garding the Suitability of the Yucca Mountain Site for a

Repository Under the Nuclear Waste Policy Act of 1982(2002).

225. Arjun Makhijani, A Bad Approach to Nuclear Waste, Wash. Post,Feb. 13, 2002, at A27.

http://www.eli.org

technology that recovered weapons-usable plutonium oruranium, while also generating large amounts of liquidhigh-level waste (high-level waste) and other types of radio-active waste.226 This high-level waste from reprocessing ofspent nuclear fuel continues to be stored in undergroundtanks at the following four U.S. locations:

� Hanford Site, Washington;� Idaho National Engineering and EnvironmentalLaboratory, Idaho;� Savannah River Site, South Carolina; and� West Valley Site, New York.227

Although the high-level waste problems are confined to ahandful of sites, they merit careful consideration because ofthe more than $50 billion228 needed to stabilize and disposeof the waste. Civilian high-level waste, i.e., spent nuclearfuel, does not contain as many hazardous elements (largervolumes of chemical mixtures in a liquid form), so the strat-egies for managing it are not as complex or expensive.

At only two locations, West Valley, New York, and Sa-vannah River Site, South Carolina, the United States builtand began operating vitrification plants in the 1990s to con-vert the liquid high-level waste into stable borosilicate229

glass that was poured into stainless steel canisters for dis-posal in a repository. The Savannah River Site’s vitrificationprocess removed most, but not all, of the high-level wastefrom two tanks, which were then grouted, i.e., filled withconcrete, with a relatively small amount of high-level wasteremaining in the tanks. DOE has sought to characterize thisresidual waste as “waste incidental to reprocessing” despiteno statutory or regulatory basis for such a new classificationof waste.230 The Natural Resources Defense Council231

dubbed this ruse “semantic detoxification” and has chal-lenged DOE’s strategy in court.232

At the Hanford site, the largest volume of high-levelwaste—52 million gallons of it—is stored in 177 under-ground storage tanks.233 The most urgent risk addressed atthese tanks has been the threat of explosion from flammablegases, e.g., hydrogen.234 Mixing of waste with pumps andtransfer of waste to newer tanks has substantially reducedthis risk. DOE has also revealed that many of these tankshave been leaking into the ground for decades, and theseleaks have contributed to the contamination of several hun-dred square miles of groundwater. During the past decade,DOE has acknowledged that the vadose zone235 under thetanks is also contaminated from the leaking tanks. Despitenumerous regulatory deadlines agreed to between DOE andstate regulators, DOE has failed to begin construction of avitrification plant to remove and stabilize these tank wastes.Reducing the risk of a tank explosion has been hailed as asuccess story, but environmental concerns about the tanks atHanford leaking into the groundwater have grown for years.First, some tanks are now more than 50 years old, but have adesign life of only 20 years. Second, the tank leakage isgreater than previously believed. Third, plutonium in thewaste is migrating through soil at a rate faster than originallypredicted.236

Perhaps more than in any other area of radioactive wastecontrol, the problems of high-level waste and spent nuclearfuel challenge the sustainability of nuclear technologies forboth environmental and national security reasons.

B. Transuranic (Plutonium) Waste

Transuranic waste chiefly includes waste contaminatedwith plutonium.237 Because it is almost exclusively a by-product of nuclear weapons production,238 a logjam in stor-age or disposal could hinder nuclear weapons production.For this reason, DOE and Congress worked to expedite aclear “path forward” for this waste and give it a high priority


9-2002 32 ELR 11081

226. With the exception of a brief operation at the West Valley Plant I inNew York, which was heavily subsidized by the government, andunsuccessful attempts in Illinois and South Carolina, the UnitedStates has not used reprocessing for civilian nuclear power plantfuel. In contrast, England, France, and Japan have traditionally re-processed their civilian spent nuclear fuel, although all of thesecountries appear to be phasing out reprocessing operations as uneco-nomical. Russia continues to reprocess spent fuel despite being amoney-losing venture. Other countries, such as South Korea, haveconsidered and rejected spent fuel reprocessing, in part because ofthe costs, and U.S. pressure. See Jungmin Kang & H.A. Feiveson,South Korea’s Shifting and Controversial Interest in Spent Fuel Re-processing, Nonproliferation Rev. (2001), available athttp://www.cns.miis.edu/pubs/npr/vol08/81toc.htm (last visitedJune 3, 2002).

227. Nuclear waste, some of which could be defined as high-level wastebecause it was derived form early reprocessing operation at the OakRidge National Laboratory in Tennessee was stored in “GuniteTanks.” This waste was largely removed from these tanks during the1990s, and solidified for disposal as TRU waste at the WIPP site inNew Mexico.

228. U.S. DOE, The 1996 Baseline Environmental Management

Report, supra note 124, at 4-17.

229. Boron is commonly used to absorb neutrons for radiation shielding.Silica is a very common mineral used in virtually all glass.

230. DOE Order 435.1; DOE Order and Manual on Radioactive WasteManagement and Implementation Guide, 64 Fed. Reg. 37948 (July14, 1999).

231. NRDC was joined in the litigation by the Snake River Alliance ofIdaho and the Yakima Indian Nation, which is located near theHanford site.

232. Natural Resources Defense Council v. Abraham, 244 F.3d 742, 31ELR 20547 (2001).



234. Similar wastes from the Soviet “Mayak” weapons program nearChelyabinsk and Khystym, exploded from underground storagetanks in 1957, rendering thousands of square miles uninhabitable,and causing road and rail maps to be redrawn. See Zhores

Menvedev, Nuclear Accident in the Urals (1980). See, e.g.,Bradley, supra note 120. Noting that Soviet waste was typicallydischarged directly into nearby Lake Kharachai and the Techa River,one Russian (and former Soviet) official remarked to the author at ameeting in Chelyabinsk, that the Russians did not have the sameproblems as the United States with high-level waste tanks: “Thegood news is we don’t have as much waste in tanks because wedumped it in the river; the bad news is we don’t have as much wastein tanks because we dumped it in the river.”

235. Vadose zone is the unsaturated zone below ground but above thegroundwater table.

236. A. B. Kersting et al., Migration of Plutonium in Ground Water at theNevada Test Site, 397 Nature 56 (1999).

237. More precisely, TRU waste includes alpha-(a subatomic particlecomposed two protons and two neutrons, indistinguishable form ahelium atom nucleus) emitting wastes containing more than 100nanocuries/gram of TRU isotopes, i.e., isotopes with an atomicnumber larger than uranium, or more than 92 on the periodic tableof elements.

238. A relatively small amount of plutonium and some exotic TRU iso-topes have been produced for non-defense research projects. Be-cause Congress designated DOE’s TRU waste disposal facility for“defense-related” TRU waste, there is a concern that these smallquantities of non-defense TRU waste could be stranded at laborato-ries where they were generated.

http://www.eli.org

for construction and operation of a disposal site. Conse-quently, DOE completed construction and began shippingand loading transuranic waste to the WIPP,239 on March 26,1999—at least a decade ahead of the high-level waste repos-itory, now slated for Yucca Mountain in Nevada. The WIPPsite is the world’s first deep geologic waste repository. Its“opening” is heralded by some as the beginning of perma-nent nuclear waste repositories, with the Yucca Mountainrepository in Nevada next in line. Others note that disposalof stored transuranic waste in WIPP is not expected to ad-dress the large amounts of buried transuranic waste240 thatpresents more immediate threats to groundwater.241 Be-cause of such unresolved issues, and because relatively littletransuranic waste has thus far been shipped to WIPP, its“opening” does not warrant inclusion on this Article’s dis-cussion of the past 10 years in radioactive waste control. Theoperation of WIPP may warrant such historic status in an-other 10 years as part of a 20th anniversary review of the RioSummit.242

The legal path to opening WIPP was the WIPP LandWithdrawal Act243 enacted in 1992, which established a pro-cess for external regulation of the site by EPA,244 and itcleared the way for the land to be transferred for DOE useunder the Federal Land Policy and Management Act.245 TheWIPP experience with external regulation246 provides an

example of a structured regulatory environment providing amore reliable method for conducting nuclear operations.Seeking to elude regulatory requirements has often lead todelays and stronger public opposition than when regulatoryapprovals were sought.

WIPP is probably the only nuclear waste facility that wasdeliberately, if imperfectly, sited and designed with verylong-term disposal in mind. Most nuclear weapons produc-tion sites became de facto nuclear waste disposal but werehistorically selected for reasons other than good waste con-tainment. For example, the Hanford Site and the SavannahRiver Site were selected in large part because of the readyaccess to large volumes of water for cooling the productionreactors. The Rocky Flats site was selected in part becauseits scenic location against the dramatic “flatirons” of thefront range of the Colorado Rocky Mountains, combinedwith the remoteness, were expected to be desirable for pro-ducing plutonium components and employing scientistswho had worked at the scenic Los Alamos site in New Mex-ico.247 DOE has indicated that these three sites, which werenever selected for waste disposal, will contain nuclear wasteand radioactive contamination in perpetuity.248 If sustain-ability in nuclear waste control is to be improved, it will re-quire that the full life cycle of costs and environmental im-plications will be considered, rather than focusing on loca-tions where the local community, eager for jobs, is willing toaccept it, such as the Carlsbad, New Mexico, community.Some of these lessons are offered by examining the processfor opening WIPP could be useful for any consideration ofstrengthening international nuclear controls.

Despite remaining uncertainties about the long-term suc-cess of the WIPP disposal site, it is indisputable that theopening of WIPP represents a significant change in trans-uranic waste management to the 1992 Rio Summit. Also, anecessary step toward addressing the serious remaining en-vironmental threats posed by the existing buried radioactivewaste chronicled by DOE’s comprehensive inventory oftransuranic waste buried in the 1990s is acknowledging thata problem exists. Nonetheless, these steps toward effectivemanagement are limited and uncertain. Significant and clearprogress on sustainable long-term transuranic waste controlstill eludes us.

C. Low-Level Waste

Reducing the amount of commercial low-level radioactivewaste and increasing the amount of information availability,has generally pushed the United States toward greatersustainability in low-level waste control. Changes inlow-level radioactive waste controls during the last decade,however, should be considered in the context of the funda-mental disconnect regarding the legal categorization and thepotential radioactivity: perhaps low-level waste controlcannot ultimately be sustainable as currently defined. It isimportant to remember that low-level waste includes any


32 ELR 11082 9-2002

239. The facility is neither a pilot project (it is a complex of full-scale dis-posal caverns carved out of a salt bed, nearly one-half-mile below thesouthern New Mexican desert) nor a plant (it involved relativelysimple and small surface facilities for unloading and support). JamesBrooke, Deep Desert Grave Awaits First Load of Nuclear Waste,N.Y. Times, Mar. 26, 1999, at A1.

240. U.S. DOE, Office of Environmental Management, Buried

Transuranic-Contaminated Waste Information for U.S.

Department of Energy Facilities (2000).

241. Arjun Makhijani & Mark Fiorivanti, Containing the Cold

War Mess: Restructuring the Environmental Management

of the U.S. Nuclear Weapons Complex (1997); Arjun

Makhijani & Michele Boyd, Poison in the Vadose Zone: An

Examination of the Threats to the Snake River Aquifer

From the Idaho National Engineering and Environmental

Laboratory (2001).

242. The potential factors and events that could elevate WIPP to historicimportance include: (1) the operational experience in successfullyoperating a deep geologic repository (albeit for a fraction of its10,000+ year lifetime) substantially reducing risks by reducing thebacklog of stored TRU wastes that present legitimate risks, or alter-natively if an operational accident occurs, raising questions aboutthe safety of deep geologic disposal of radioactive waste; (2) if theNWPA is amended to allow the disposal of high-level (not just TRU)waste in WIPP, as some have proposed, notwithstanding the statu-tory ban on disposal of high-level waste and spent nuclear fuel(Waste Isolation Pilot Plant Land Withdrawal Act of 1992, Pub. L.No. 102-579, §12, as amended by the National Defense Authoriza-tion Act for Fiscal Year 1997, Pub. L. No. 104-201 (1996)); and (3) ifWIPP is used for disposal of significant amounts of surplus weap-ons-grade plutonium.

243. Pub. L. No. 102-579, 106 Stat. 4777, as amended by the National De-fense Authorization Act for Fiscal Year 1997, Pub. L. No. 104-201(1996)

244. 40 C.F.R. pt. 164.

245. Waste Isolation Pilot Plant Land Withdrawal Act of 1992, Pub. L.No. 102-579, 106 Stat. 4777. Congress further exempted DOE fromother regulatory requirements in 1996, e.g., compliance RCRA LDRrestrictions. National Defense Authorization Act for Fiscal Year1997, Pub. L. No. 104-201 (1996).

246. DOE generally followed the regulatory requirements laid out in theWIPP Land Withdrawal Act, including submitting documents tocomply with EPA radiation standards at 40 C.F.R. pt. 194, and theRCRA Part B permitting process (Waste Isolation Pilot Plant LandWithdrawal Act Amendments of 1996, Pub. L. No. 102-579, §8).Near the end of the process, however, DOE abandoned its commit-

ment to seek a Part B permit before opening WIPP (even though per-mit approval was virtually certain and only a few months away), andprevailed in litigation, allowing DOE to operate WIPP under “in-terim status.”

247. Len Ackland, Making a Real Killing: Rocky Flats and the

Nuclear West (1999).

248. U.S. DOE, Office of Environmental Management, Report

to Congress on Long-Term Stewardship (2001)(DOE/EM-0563).

http://www.eli.org

waste not classified as high-level transuranic or another typeof radioactive waste. It generally contains relatively lowlevels of radioactivity, but it can also include relatively highlevels of radioactivity and typically includes radionu-clides249 that are as long-lived as those found in high-levelwaste.250

The NRC regulates commercial low-level waste,251

whereas low-level waste generated by DOE is not independ-ently regulated. Regulation of DOE low-level waste con-sists of DOE oversight of its contractors under a set of “Or-ders,”252 which can result in fines and penalties using DOE’sPrice-Anderson authorities. DOE remains “self-regulating”for any low-level waste generated by DOE facilities. Con-cerns about the potential safety and environmental impactsof low-level waste in part drove an effort during the pastdecade to eliminate the self-regulation by DOE of itslow-level waste management. Congress (prior to 1995)and Clinton Administration officials made serious effortsto increase DOE accountability and shift regulation oflow-level waste to the NRC,253 but shifting political sandsfoiled these attempts.

The management of low-level radioactive waste clearlyillustrates the changing dynamic in nuclear waste controldespite apparent deadlock. Moreover, the changes inlow-level waste dynamics since 1992 offer a parable forother waste management issues, that has sometimes been re-ferred to as the “marshmallow” theory of waste manage-ment: put pressure in one area and it causes the system tobulge out in another area.

To assess the changes occurring in the world of low-levelwaste, we need to examine the two separate sources oflow-level waste: commercial low-level waste and govern-ment-generated low-level waste, primarily from DOE nu-clear weapons facilities. By contrast, high-level liquid wasteand transuranic, i.e., plutonium-contaminated, waste areuniquely generated by government sources, from nuclearweapons production. Generally, the amount of commerciallow-level waste generated has responded to market forces,such as high costs, and declined dramatically over the pastdecade. During the same period, however, the amount oflow-level waste generated by DOE has increased explo-sively, chiefly as a result of growth in DOE’s EnvironmentalManagement program.254 In contrast to the commercial

low-level waste sector, DOE is largely from market forcesthat would promote waste minimization.255 By 1996,256 thevolume and radioactivity of low-level radioactive waste atDOE sites was more than twice the amount at commercialdisposal facilities,257 and the gap continues to widen.258

In the decade since the 1992 Rio Summit, the realities ofcommercial low-level waste have profoundly changed inthe United States. The principal change was that, as thecosts for disposal increased, the volume of commerciallygenerated low-level waste decreased. As low-level wastevolumes dropped, the unit costs for disposal increased tocover fixed costs, which justified more investment in low-level waste reduction efforts, further reducing volumeand increasing unit costs. For example, low-level wastegenerated in the Midwest region and shipped for disposaldeclined by about 83%—from a high of 114,700 cubicfeet in 1989 to 20,000 in 1996. On the state level, the vol-ume of low-level radioactive wastes disposed of fromPennsylvania decreased from more than 225,000 cubicfeet in 1991 to less than 30,000 cubic feet in 1997, orabout an 87% reduction.259

On a national level, the volume of commercial low-levelwaste disposed of in 1980 declined by more than one-halffrom 3.7 million cubic feet, to 1.4 million cubic feet in1988.260 The decline in low-level waste generation acceler-ated during the 1990s. By 1997, only 320,000 cubic feet ofcommercial low-level waste were generated261 and by 1999,


9-2002 32 ELR 11083

249. E.g., plutonium in concentrations less than 100 nCi/gram.

250. See Section II., supra, entitled A Radioactive Waste Primer.

251. 42 U.S.C. §2021; 10 C.F.R. pts. 61-62.

252. See, e.g., DOE Order 435.1, DOE Order and Manual on RadioactiveWaste Management and Implementation Guide, 64 Fed. Reg. 37948(July 14, 1999), and DOE Order 5820.2A.

253. See generally U.S. DOE, Advisory Committee on External

Regulation of DOE Nuclear Safety, Improving Regula-

tion of Safety at DOE Nuclear Facilities (1995); U.S. DOE,

Report of the Department of Energy Working Group on

External Regulation (1996) (DOE/US-0001); and Memoran-dum of Understanding Between the U.S. Department of Energy andthe Nuclear Regulatory Commission, “Pilot Program on ExternalRegulation of DOE Facilities by NRC, Signed by Energy SecretaryFederico Pena and NRC Chair, Shirley Jackson (Sept. 17, 1997).

254. The DOE’s Environmental Management program annual budgetgrew from approximately $1 billion in 1990 to more than $6 billionin 2000. A large part of this budget growth reflects increased respon-sibilities for facility management, but there was also a significant in-crease in cleanup-derived waste generated. DOE waste generationrate is largely immune to market forces, and often operates in per-verse ways because of contractor incentives to inflate work scope

and costs to increase their own revenues (the more waste requiringon-site disposal, the more costs can be billed to the government.Consequently efforts to reduce waste generation by “internalizing”waste management costs with the generator (imposing responsibilityto manage waste with the generating program, such as defense pro-gram) had little effect because the same contractor managed thewastes and sought to inflate their own billable costs. Also, yeomanefforts at pollution prevention by a small group of DOE employeespushed vainly against the tide of contractor incentives and other pro-gram incentives.

255. Some pressure is imposed by the use of commercial facilities likeEnvirocare of Utah, which is independently regulated by theNRC. Most DOE waste, however, is disposed of within the bor-ders of DOE facilities where it is exempted form any independ-ent regulation.

256. The last year for which comparable data were analyzed and pub-lished by DOE.

257. U.S. DOE, Integrated Database—1996: U.S. Spent Fuel

and Radioactive Waste Inventories, Projections, and

Characteristics 4-9 (1997) (DOE/RW-0006. Rev. 13). Theamount of nonenvironmental restoration, e.g., decontamination anddecommissioning-related wastes, waste generated by DOE has re-mained steady as of 1999 at approximately 35,000 m3, while com-mercially generated waste volumes have continued to decline. SeeU.S. DOE, Summary Data on the Radioactive Waste, Spent


258. The size of this gap is not clear because the amount of low-levelwaste generated by commercial sites is not available publicly after1999. Prior to 1999, when Congress eliminated the funding, DOEoperated a program to support the commercial low-level waste in-dustry program by, among other things, tracking waste generation,shipments, and disposal.

259. U.S. GAO, Low-Level Radioactive Wastes: States Are Not

Developing Disposal Facilities (1999) (GAO/RCED-99-238).

260. EG&G Idaho, Draft Integrated Data Base for 1989, Spent

Fuel and Radioactive Waste Inventories, Projections, and

Characteristics (1989) (DOE/RW-006, Rev. 5) (DOE contractorfor the Idaho National Engineering and Environmental Laboratory).

261. U.S. DOE, State-by-State Assessment of Low-Level Radio-

active Wastes Received at Commercial Disposal Sites

(1998) (DOE/low-level waste-252).

http://www.eli.org

the volume declined to 272,000 cubic feet.262 Thus, from1980 to 1999, we saw a 90% reduction in commerciallow-level waste generation, despite a 50% increase in thenumber of nuclear power plants during that time.263

Another fundamental change in commercial low-levelwaste management was that disposal capacity did notgrow as expected. Legal and political challenges to sitingnew low-level waste disposal facilities, combined withplummeting demand due to waste minimization; the re-sult: no additional waste disposal sites were developedsince the passage of the Low-Level Radioactive WastePolicy Act (LLRWPA)264 in 1980 despite spending ap-proximately $600 million by various low-level waste sit-ing authorities.265

When Congress passed the LLRWPA of 1980, it envi-sioned a nationwide state-level system for managinglow-level waste. It gave states responsibility for providingdisposal capacity for commercial low-level radioactivewaste.266 The Low-Level Radioactive Waste PolicyAmendments Act of 1985267 sought to strengthen this sys-tem with a series of incentives for states to develop newlow-level waste disposal sites or join compacts with otherstates. The changes in the low-level waste situation were notanticipated when Congress put together the LLRWPA,which assumed a steadily growing demand for low-levelwaste disposal capacity. The low-level waste managementframework, anticipating a bumper crop of new commerciallow-level waste disposal sites, set in place incentives for de-veloping new sites premised on inflexible demand. Amongother requirements, the 1985 Amendments directed states toestablish “compacts” for the sharing of low-level waste dis-posal sites, and set a deadline of 1993 for states to join com-pacts or risk being shut out of disposal facilities out ofstate.268 By 1996, the LLRWPA required states to take titleto low-level waste generated within their states if the statesfailed to join a compact or provide for disposal of low-level waste.

In 1992, the U.S. Supreme Court struck down the core ofthe Act as an unconstitutional mandate, ruling that Congresscan encourage but not require the states to open such dumps,and states are free to choose not to if they wish.269 This rul-ing ultimately helped create significant pressures on low-level waste generators to reduce the waste they produce be-cause they could not count on states being required to estab-lish new low-level waste disposal facilities. At the time of

the 1992 Earth Summit, there was a rumor of impending cri-sis regarding whether the LLRWPA would work andwhether states would form compacts and deal with thelow-level waste. In fact, by reducing low-level waste gener-ation and finding disposal sites, however distant or expen-sive, no low-level waste crisis emerged.

Although the U.S. management of low-level waste ma-tured in the last 10 years by embarking on significant wasteminimization efforts, the long-term sustainability of U.S.low-level waste disposal is far from mature. First, theUnited States continues to rely almost entirely on disposalof low-level radioactive waste in shallow trenches. By con-trast, European countries typically dispose of low-level ra-dioactive wastes in above-ground concrete vaults, which aredesigned to last for more than 200 years, or roughly 10 timesthe half-life of many of the radioactive wastes.270 Thesevaults not only provide better containment, but also enablefuture generations to more readily monitor and retrievewastes, if necessary. In the United States, relatively fewwaste vaults have been built, and where they have beenbuilt, they have not been widely used for economic reasons.Lacking a regulatory mandate, commercial disposal facili-ties would be at an economic disadvantage if they builtvaults while their competitors simply continued to disposeof waste in trenches. Similarly, officials at DOE’s SavannahRiver Site have seldom used the disposal vaults at the site toreduce costs compared to using traditional landfills.

Second, the United States has not developed a system forlong-term stewardship of low-level waste sites after they areclosed. In theory, each private waste site should have suffi-cient financial bond authority to support long-term cleanupand stewardship. Also, DOE has legal authority to take re-sponsibility for long-term stewardship of residually con-taminated private sites.271 After years of discussion, DOEsigned an Agreement in Principle272 with the NRC in 2001to begin a process to deal with these sites. Since then, how-ever, no progress has been made on developing a long-termstewardship program, despite several sites that are movingforward with decontamination and decommissioning de-manding resolution of this issue.273


32 ELR 11084 9-2002

262. Mark Holt, Resources, Science, and Industry Division, Ci-

vilian Nuclear Waste Disposal (Congressional Research Ser-vice Report No. IB92059, 2001).

263. Nuclear Energy Institute, Low-Level Waste Summary

(2001).

264. 42 U.S.C. §§2021b-2021j.

265. U.S. GAO, Low-Level Radioactive Wastes, supra note 259. Inaddition, DOE also spent millions of dollars annually from generalU.S. Treasury revenues promoting the low-level waste industry withprofessional lobbying support on Capitol Hill and providing techni-cal assistance from the Idaho National Engineering and Environ-mental Laboratory that would have otherwise been paid by the pri-vate sector.

266. Pub. L. 99-240, 99 Stat. 1842 (1986).

267. 42 U.S.C. §§2021b-2021d (1988 & Supp. II 1990).

268. Dan Berkovitz, Waste Wars: Did Congress “Nuke” State Sover-eignty in the Low-Level Radioactive Waste Policy Amendments Actof 1985?, 11 Harv. Envtl. L. Rev. 437, 439-440 (1987)

269. New York v. United States, 505 U.S. 144, 22 ELR 21082 (1992).

270. As discussed in Section V.C., supra, entitled, Low-Level Waste, theUnited States does not define wastes according to the level or persis-tence of radioactivity, so there is no clear relationship between wastetype and longevity of waste hazard using the U.S. system. Europeanwaste classification systems, however, are typically related to the ra-dioactivity in the wastes, and therefore a disposal design can morereliably be related to the type of waste it contains.

271. 41 U.S.C. §10171b, and 10 C.F.R. §20.1403. Interestingly a morenarrow provision in §151c of the NWPA requires, not merely autho-rizes, the government to take title to sites “when the waste is the re-sult of licensed activity to recover zirconium, hafnium and other rareearth elements for source material.” Id. §10171c. So far, the only sitewhere this provision has been found to apply is the AMAX site nearthe Ohio River in Parkersburg, West Virginia, not coincidentally, thehome state of powerful Sen. Robert Byrd (D-W. Va.).

272. U.S. NRC, U.S. DOE, Agreement in Principle for Transfer of NRCRestricted Release Sites to DOE as Authorized Under Section151(b) of the Nuclear Waste Policy Act, Signed by DOE AssistantSecretary Huntoon and NRC Division Director John Greeves(Mar. 15, 2001). The Agreement in Principle committed DOE andNRC to work toward a Memorandum of Agreement on the NWPA§151b issue.

273. The NRC has begun an EIS for the decontamination and decommis-sioning of the Sequoia Fuels Corporation in Oklahoma, which is ex-pected to require long-term stewardship after cleanup is completed.Similarly, the Hematite facility south of St. Louis, Missouri, is un-dergoing a cleanup process that will likely result in residual contami-nation requiring long-term stewardship.

http://www.eli.org

Until the United States grapples with the safety of dis-posal and the long-term stewardship, the sustainability ofthe ongoing disposal of low-level radioactive waste will befundamentally questionable.

D. Mixed (Hazardous and Chemical) Waste

During the decade since the Rio Summit, an almost entirelynew area of nuclear waste control has emerged, called“mixed waste” (radioactive waste mixed with hazardouschemicals regulated by RCRA).274 Although high-levelwaste and transuranic waste are often “mixed,” the termgenerally refers to low-level mixed waste, which presentscertain technical275 and regulatory problems.276

At the time of the Rio Summit, the regulation of mixedwaste was being debated in Congress in the Federal Facil-ities Compliance Act (FFCAct).277 States sought clear au-thority to impose unilateral administrative orders, fines, andpenalties under RCRA. DOE successfully argued that, bar-ring an explicit waiver by Congress, it enjoyed “sovereignimmunity.”278 During the debate to amend RCRA and pro-vide an explicit waiver of sovereign immunity, DOE argued:(1) that RCRA was not designed to deal with the specialproblems associated with mixed waste; (2) that demandingcompliance with RCRA for mixed waste could harm work-ers; (3) because it was technically impossible to complywith RCRA; and (4) that states were seeking authority tolevy fines and penalties merely to reach into the “deep pock-ets” of the federal government, and consequently waivingsovereign immunity would amount to allow states to make a“run on the bank” against the federal government. Throughyears of hearings and research, DOE’s arguments werefound to be ungrounded in fact, and Congress passed theFFCAct,279 which amended RCRA and partially addressedthe issues considered in U.S. Department of Energy (DOE)v. Ohio280 regarding sovereign immunity by the federal gov-ernment for environmental laws.281

In the wake of the uncertainties about complying with theFFCAct, DOE developed a process to work with statesthrough the National Governors Association (NGA) Centerfor Best Practices. Using the NGA forum to establish a con-

structive dialogue, state regulators and DOE staff workedsuccessfully to deal with mixed waste compliance issuesthrough regular meetings and extensive information shar-ing. This process could be a model for working through newnuclear waste control issues where broad dialogue and theuse of open and timely access to information can serve as anantidote to miscommunication.

DOE and states, with none of the parade of horribles ma-terializing that DOE had predicted, have successfully im-plemented the FFCAct. But, seven years after the enactmentof the FFCAct, Congress passed the National Nuclear Secu-rity Administration Act (NNSA Act)282 to give the nuclearweapons enterprise more autonomy from DOE. It may havealso provided the nuclear weapons enterprise even greatersovereign immunity protections than those addressed inDOE v. Ohio. In this way, the NNSA Act takes a step back-ward toward a structure that many contend produced the en-vironmental problems found at DOE facilities today.283

The U.S. mixed waste management program has grownfrom only faint recognition of the issue, to developing tech-nologies and facilities to manage the waste. Perhaps moreimportantly, the federal government has developed, throughthe NGA, a mode for resolving issues with states before theybecome problems using mixed waste as the first successfultest case. The United States remains far from able to demon-strate a sustainable system of managing mixed waste, butsignificant progress has been made. If the new NNSA seeksto elude compliance with state enforcement of mixed wasterequirements it will reflect an area of serious backsliding tothe bad old days of federal sovereign immunity for environ-mental compliance.

E. Environmental Restoration of Contaminated Facilities

For over 40 years DOE and its predecessors—the AEC andthe Energy Research and Development Administration(ERDA)—operated the U.S. nuclear weapons complex insecrecy and essentially devoid of environmental oversightand regulation.284 Largely as a result, DOE is now facedwith an enormous environmental cleanup problem—1.7trillion gallons of contaminated groundwater (four times the


9-2002 32 ELR 11085

274. 40 C.F.R. pt. 261.

275. One technical issue with mixed waste is the problems that could ariseupon incineration: temperatures high enough to destroy certain haz-ardous chemicals, like organic solvents, e.g., 2000 degrees Fahren-heit for two seconds, are also hot enough to vaporize radionuclides(as well as nonradioactive hazardous heavy metals) and other metal-lic elements, thereby making entrainment on high efficiency particu-late air filters difficult.

276. See generally Finamore, supra note 44, at 83; Fehner & Gosling, su-pra note 44, at 5; Panel Discussion: Regulation of Nuclear Mate-rials; Should National Defense and Other National Policies Over-ride State Standards?, 22 ELR 10014 (Jan. 1992); Michael W.Grainey & Dirk A. Dunning, Federal Sovereign Immunity: HowSelf-Regulation Became No Regulation at Hanford and Other Nu-clear Weapons Facilities, 31 Gonz. L. Rev. 83 (1996).

277. Pub. L. No. 102-386, 106 Stat. 1505 (1992).

278. Department of Energy v. Ohio, 503 U.S. 607, 628, 22 ELR 20804,20810 (1992).

279. Federal Facilities Compliance Act of 1992, 102-386, 106 Stat. 1505(amending scattered sections in 42 U.S.C. §§6901-6961 (1994)).

280. 503 U.S. 607, 22 ELR 20804 (1992).

281. Congress did not similarly amend the Clean Water Act (CWA), 33U.S.C. §§1251-1387, ELR Stat. FWPCA §§101-607, and, there-fore, federal facilities are not subject to punitive penalties for past vi-olations of the CWA.

282. National Defense Authorization Act for Fiscal Year 2000, Pub. L.No. 106-65, 113 Stat. 512, tit. XXXII, (1999) (codified as NationalNuclear Security Administration Act, 50 U.S.C. ch. 24).

283. K.C. Schefski et al., Sovereign Immunity and the National NuclearSecurity Administration: A King That Can Do No Wrong?, 31 ELR10111 (Jan. 2001).

284. In 1946, the Atomic Energy Act (AEA) was passed, and in 1954amended, to create the Atomic Energy Commission (AEC) andbring the production of nuclear weapons under governmental con-trol. AEA of 1946, ch.724, 60 Stat. 755, as amended by the AEA of1954, ch. 1073, 68 Stat. 919 (codified at 42 U.S.C. §§2011-2297g-3(1994)). While the AEA recognized the need to protect [publichealth] and safety, it did not require the development of specific reg-ulatory standards for nuclear weapons facilities and failed to men-tion protection of the environment as a goal. Id. §2012(d). The AECwas dissolved under the Energy Reorganization Act (ERA) of 1974.The ERA transferred the AEC’s oversight of nuclear weapons facili-ties transferred to the Energy Research and Development Commis-sion (ERDA) and created the NRC to license and regulate commer-cial nuclear facilities. 42 U.S.C. §§5801-5891, 5814 (1994). TheERA granted ERDA internal regulatory authority over the manage-ment of radioactive waste. Id. §5812(d). ERDA was superceded byDOE in 1977 under the Department of Energy Organization Act of1977, which continued the internal regulatory structure. 84 U.S.C.§§7101-7382f (1994). DOE currently derives its core nuclear pro-gram regulatory functions from all three acts. See generallyFinamore, supra note 44, at 83; O’Very, supra note 44, at 281.

http://www.eli.org

daily U.S. water consumption) and 40 million m3 of soil anddebris (enough to fill approximately 17 professional sportsstadiums); 18 metric tons of weapons-usable plutonium(enough for 2,250 nuclear weapons)285; more than 2,000tons of intensely radioactive spent nuclear fuel; and about4,000 facilities to decontaminate and decommission.286

One of the revelations in the decade since the Rio Summithas been the acknowledgement of the massive scale of con-tamination of nuclear facilities, particularly nuclear weap-ons facilities for waste disposal and contamination causedbefore current controls were in place. The new awareness ithas brought grew as a result of steady uphill efforts by someDOE staff, state governments, and NGOs to improve man-agement and accountability of the cleanup process.

During the mid to late 1980s, DOE’s desire to restart thenuclear weapons production facilities, caused it to enter intoseveral compliance agreements with states. A senior DOEofficial later acknowledged that production demands drovethe increasing number of compliance agreements:

We got into the compliance agreements, in my view, be-cause we had to stay in production to produce the re-quirements for the military. And we had to give themtheir due in the jurisdictions where we left messes, andwe should do that; we should do more, better, sooner,quicker. I mean we really mucked up Tennessee. I meanthat is a dirty, dirty place. It is not as dirty as Hanford.287

Since then DOE has undertaken a massive cleanup effort,funded at more than $6 billion annually. Much of this fund-ing is directed at facility support and infrastructure mainte-nance,288 but almost a generation of DOE employees hassought to reduce this overhead burden despite resistancefrom political, economic, and bureaucratic interests, as wellas some legitimate technical issue requiring resolutionthrough institutional changes of investment in science andtechnology.289

Since 1992, the Environmental Management programhas matured to a broad realization that “cleanup”—in thenormal sense of the term—is physically and economicallyimpossible with available technology. As a result of this re-alization, DOE began to address to need for an effectivelong-term stewardship program, including significant in-vestments in science and technology to improve the cleanuptools and its understanding of the problems.290 This maturityincludes recognition that cleanup decisions must involveconsideration of long-term consequences, and that these

consequences must begin with facility design and construc-tion, not wait until cleanup.291 Regrettably, DOE appears tohave reversed course and is actively seeking to shirk its re-sponsibility for long-term stewardship.292 Consequently, itappears that the Environmental Management program willnot only be continuing for another generation, but a newcleanup program will need to be created for another genera-tion to address the forgotten problems of the Cold War that,for political expedience, were only partially addressed dur-ing the first decades of the cleanup program.

VI. Recommendations

The Rio principles provide a useful foundation on which tosupport a more effective and sustainable nuclear waste con-trol regime. The fact that nuclear waste controls have beenneither completely effective nor sustainable results lessfrom the failure by the U.S. to implement these principles asthe need to abide by more fundamental and broad-basedprinciples. The section summarizes several recommenda-tion that address both the need to better implement existingprinciples and control mechanisms, and the need to addresssome more fundamental and broad-based issues. De-veloping and using these additional principles and measuresare difficult for governments, especially international bod-ies such as the United Nations and its IAEA. In addition, thefundamental nature of nuclear waste—long-lived and inex-tricably linked to vital national security concerns—maymake it impossible for nuclear waste controls to be entirelysustainable, regardless of government measures taken.

A. Use Existing Institutions, Laws, and Science MoreEffectively

Before developing any new control measures or institutions,we should take a careful look at whether existing institu-tions, laws, and technical measures are being used to thefullest extent. Perhaps the best example is the use ofNEPA293–the premier statute of the modern era of environ-mental laws. The requirements of NEPA, if carried out fullyin good faith, would include consideration of the long-termsustainability, including life-cycle costs of any proposal thatwould involve generating or managing radioactive wastes.Certainly NEPA could be usefully applied to many environ-mental issues, but one element of NEPA seems uniquelysuited to application to radioactive waste control, and hasbeen particularly ignored: consideration of “irreversible andirretrievable commitments of resources.”294 Because of thelong-lived—essentially permanent—nature of some radio-active wastes, more careful consideration of this section of


32 ELR 11086 9-2002

285. This assumes each nuclear warhead requires 8 kilograms (18pounds), based on assertions by Senator Domenici. Sen. Pete V.

Domenici, A New Nuclear Paradigm: One Year of Progress,supra note 8.

286. U.S. DOE, Office of Environmental Management, Status

Report on Paths to Closure 1 (2000) [hereinafter DOE Paths

to Closure Status Report].

287. Conversation with Dr. Benjamin Franklin Cooling and Dr. F.G.Gosling of the History Division, Office of the Executive Secretariat,U.S. DOE (Jan. 17, 1993).

288. U.S. DOE, Estimating the Cold War Mortgage, supra note124; U.S. DOE, The 1996 Baseline Environmental Manage-

ment Report, supra note 124.

289. See most recently, Memorandum from Jessie Hill Roberson, supranote 54.

290. U.S. DOE, From Cleanup to Stewardship: A Companion Re-

port to “Paths to Closure” and Background Information

to Support the Scoping Process Required for the 1999 PEIS

Settlement Study (1998) (DOE/EM-0466); and DOE/EM Re-

port to Congress, supra note 124.

291. U.S. DOE, Office of Long-Term Stewardship (EM-51).Draft Long-Term Stewardship Study (2000); Notice of Avail-ability of Draft Long-Term Stewardship Study, 65 Fed. Reg. 64934(Oct. 31, 2000).

292. Bill Lambrecht, Uphill Battle, St. Louis Post-Dispatch, Nov. 18,2001, at A1; Letter from Steve Mahfood, Director of Missouri De-partment of Natural Resources, to Assistant Energy Secretary, JessieRoberson (Sept. 27, 2001); Shawn Terry, States Complain to DOEAbout Planning for Long-Term Stewardship, Inside Energy, Oct.22, 2001, at 7.

293. 42 U.S.C. §§4321-4370d, ELR Stat. NEPA §§2-209.

294. “Any irreversible and irretrievable commitments of resources whichwould be involved in the proposed action should it be implemented.”42 U.S.C. §4331, ELR Stat. NEPA §102(2)(C).

http://www.eli.org

NEPA could require that many projects and operations arescrutinized more carefully than they have been traditionally.

Financial costs can sometimes be a useful indicator of en-vironmental impacts. Too often, however, the full costs ofundertaking a nuclear project, including waste managementcosts and essentially permanent preemption of the use of theland, are not fully considered. In 1994, Congress included inthe Defense Authorization Act a requirement that DOE re-port regularly on the estimated life-cycle costs of the envi-ronmental cleanup needs of the nuclear weapons com-plex.295 Unfortunately, DOE has essentially ignored thisstatutory requirement.

B. Reform or Develop New Institutional Mechanisms

The two primary nuclear waste control organizations in theUnited States—the NRC and DOE—have been regularlycriticized for being ineffective at carrying out their missions.

The NRC is most often accused of underregulating nu-clear waste. The scope of the NRC regulatory purview is of-ten limited by funding and personnel resources. The NRC’sfunding is severely limited by the legal requirement thatthey fund their operations largely by fees on industry.296 Inmaking decisions on whether to regulate certain wastes, theNRC necessarily must consider its ability to fund new activ-ities from revenues on the regulated entity. Consequently,the NRC has declined to take on new regulatory duties suchas uranium byproduct waste (known as 11e2 wastes) thatwere generated prior to 1978, when the Uranium Mill Tail-ings Reclamation and Control Act was enacted.297 As a re-sult, one set of rules is applied to uranium mill tailings wastegenerated after 1978, and no NRC controls are imposed onidentical wastes generated prior to 1978. These illogical re-sults could be addressed by NRC funding reforms that allowexceptions to the self-funding requirement for certain activ-ities that are unlikely to produce any fee revenues because ofa moribund industry sector.

The failure of DOE to address the environmental issuesassociated with nuclear waste and nuclear weapons opera-tions results in part from the inherent conflict between itsmandate to promote nuclear technology, and its mandate toself-regulate its nuclear safety and some waste managementactivities.298 Numerous proposals to eliminate DOE havebeen made, but stumbled on a lack of understanding ofDOE’s significant role in nuclear weapons production and alack of a viable organizational alternative.299 Within DOE,

however, realignment could help address the emerging sig-nificant issues, such as nuclear material stabilization andpost-cleanup stewardship. In 1994, DOE established a newOffice of Nuclear Materials Disposition. This office hasthus far been producing paper studies examining the feasi-bility, alternatives, impacts, and costs of various alterna-tives toward making decisions. It is not clear how effec-tively this new office will make the transition from theselargely “staff” tasks to “line” implementation tasks like con-struction and operations. A separate implementation orga-nization may be required to carry out this critical effort ofstabilizing surplus plutonium.

EPA and DOE have completed cleanup of dozens of nu-clear waste sites. These cleanups have generally involvedon-site stabilization or containment rather than removal.Consequently, long-term stewardship of the residual con-tamination and waste is required. Long-term stewardship ofradioactive waste involved longer periods of time, oftenperpetual care, than is generally required for chemical con-tamination.300 There is a serious question about the abilityof and organization with competing missions, such as EPAor DOE to carry out this mission for the long periods oftime required.301 DOE announced its intention to seek to“develop a strategy for transferring lands that are notowned by DOE or associated with DOE missions but forwhich it is slated to perform long-term stewardship toother governmental agencies with land management mis-sions,”302 e.g., Bureau of Land Management and the U.S.Army Corps of Engineers.303 It is not clear that these exist-ing agencies, who also have competing missions and littlefunding, are capable of taking on this complicated new andlong-term commitment for public health and environmen-tal protection of residual radioactive contamination andwastes. A new entity—government or private—that is in-sulated from competing missions demands, and fundedwith a long-term trust fund mechanism may be required toaddress the long-term stewardship challenges for radioac-tive waste control.

C. Establish a Trust Fund for Long-Term Stewardship

As discussed above304 radioactive waste control require-ments inherently involve transferring liabilities to futuregenerations. Among other things, this creates serious uncer-tainties about whether resources will be available in the fu-ture to support the necessary controls on wastes generateddecades earlier. In response, long-term private-sector fund-


9-2002 32 ELR 11087

295. See requirement for the Baseline Environmental Management Re-port at Pub. L. No. 103-337, 103d Cong. (1994), codified at 42 U.S.Code 7272k.

296. The Omnibus Budget Reconciliation Act, as amended, requires thatthe NRC recover through fees approximately 98% of its budget au-thority, less monies appropriated from the Nuclear Waste Fund, inFY 2001, 96% in FY 2002, 94% in FY 2003, 92% in FY 2004, and90% in FY 2005. See 10 C.F.R. pts. 170 and 171.

297. 42 U.S.C. §§7901-7942.

298. 10 C.F.R. pt. 962. For example DOE remains self-regulating with re-gard to nuclear waste (except the high-level waste repository, andconstruction of the vitrification facility at Hanford) as well as occu-pational health and safety.

299. In 1981, President Reagan famously appointed retired dentist andformer Gov. James Edwards (R-S.C.) as Secretary of Energy witha mandate to dismantle the agency, until the president was in-formed in March 1981 that DOE has responsibility for nuclearweapons production, at which point he reversed himself and pro-posed large budget increases for DOE. In 1995, when Republi-

cans took control of both houses of Congress, they also proposed toeliminate DOE for cost-cutting purposes. Similarly, the proposalswere based largely on the incorrect notion that DOE’s primary mis-sion was energy regulation and promotions, rather than nuclearweapons production and cleanup. Also, members learned that mostlarge DOE facilities are located in traditionally Republican-con-trolled congressional districts.

300. The exception is the long-term stewardship requirements for ele-mental metals contamination such as mercury and lead.

301. National Academy of Public Administration, Deciding for

the Future, supra note 161; National Academy of Sciences,

Energy Legacy Waste Sites, supra note 202.

302. U.S. DOE, Top to Bottom Review Report V-15 (2002).

303. Stephen Langel, DOE Plan to Shift Stewardship to OtherAgencies Splits Agency, Inside EPA Superfund Rep., Mar. 4,2002, at 1.

304. See Section IV.B.2., supra, discussing Principle 16.

http://www.eli.org

ing mechanisms have been established for nuclear waste.305

The states of South Carolina and Washington, where privatelow-level waste sites operate, have established perpetualcare accounts to ensure long-term maintenance of wastesites after closure.306 The federal government currently ex-empts itself from RCRA financial assurance requirementsapplicable to private parties.307 In one case, however, DOEcurrently funds a limited trust fund established for a disposalsite in Oak Ridge, Tennessee.308

There are significant uncertainties about the long-termviability of these individual trust fund mechanisms, such aswhether the amount is sufficient to fund all of the work, andwhether the funding will remain devoted to the task or be si-phoned off for more politically powerful, if often ephem-eral, interests.309 The need to develop a reliable long-termfunding source has been widely recognized,310 but the fed-eral government continues to insist that the annual appropri-ations process is adequately reliable. The federal govern-ment should begin immediately to establish a reliable long-term funding mechanism to support the long-term steward-ship of closed cleanup sites where residual waste and con-tamination remain. These funds should be sufficient to sup-port not only the routine monitoring and maintenance of thesites, but also, information management and community li-aison to ensure that individuals and organizations who needto know exactly where the contamination is located, such asdevelopers, construction crews and utility workers, can getready access to accurate information.311

D. Improve Scientific, Technical, and Institutional Basisfor Radioactive Waste Management

More than a half century after the splitting of the atom, sig-nificant uncertainty remains about the health effects of ion-izing radiation and effective management of radioactivewaste. Moreover, because of the decades of secrecy andfalse information supplied by the federal government andprivate companies, a much larger lack of public consensusexists about the risks and acceptable management prac-tices for radioactive waste control. Unlike many other ar-eas of environmental management, e.g., air and water pol-lution, no authoritative texts and body of research existsfor radioactive waste control. To a greater extent than inother environmental fields, debates about radioactivewaste controls quickly become mired in a battle of experts,each with there own perspectives, data sets, or analyses ofthe same data. Funding to address the health impacts ofionizing radiation is too often clouded with suspicions thatthe research is being directed toward a predetermined out-come.312 Also, the risk assessment of radioactive waste istoo often closely associated with its risk management,313

so that enormous pressures exist to violate the precaution-ary principle.314

The U.S. government should demonstrate more leader-ship in investing in peer-review scientific research and anal-ysis toward a goal of establishing widely accepted norms forradioactive waste management. DOE, for example, has con-ducted much of its research outside of the standard scientificprocess of peer review. The public acceptance of even themost rigorous and objective science, however, will continueto be linked closely to the overall veracity of the agency pro-ducing the research and the “nuclear establishment,” in gen-eral. The funding and performance of this research mayneed to be decoupled from organizations and institutions,such as DOE and nuclear utilities, who could benefit fromskewed outcomes to the research. Funding from more ob-jective organizations that are not mandated to develop nu-clear weapons or promote nuclear technologies, e.g., Na-tional Science Foundation and EPA, could help build amuch-needed body of trusted research. The goal of a broadinitiative in improving the scientific basis of radioactivewaste control should be a more civilized debate usingwidely recognized and trusted sources of information, andwidely supported outcomes using a more open and efficientdecisionmaking process.

E. Explicitly Connect Nuclear Waste Management WithNonproliferation Issues as Well as Environmental andSafety Issues

It was not by accident or oversight that the 1992 Rio Summitprovided limited attention to radioactive waste control and


32 ELR 11088 9-2002

305. For example the NRC requires that licensees provide approximately$600,000 for long-term care of uranium mill tailings sites that con-tain wastes with half-lives of billions of years. See 40 C.F.R. §40.2a.Similarly, private low-level waste disposal sites must establish fi-nancial bonding mechanisms for ensuring long-term funding for sitemaintenance. See, e.g., financial surety and assurance bond and clo-sure requirement for the Envirocare of Utah disposal facility pursu-ant to Utah Administrative Code 313-R25-31.

306. Wash. Rev. Code §43.200.080 (1998); “site closure account—per-petual surveillance and maintenance account” and South CarolinaHazardous Waste Management Act §44-56-160 (1981) directs thestate Department of Health and Environmental Control to establish a“Hazardous Waste Contingency Fund.” For the Barnwell Site a spe-cial Decommissioning Trust Agreement was negotiated betweenChem-Nuclear facilities (Grantor) and the state of South Carolina(Trustee).

307. 40 C.F.R. §262.141(c)

308. Consent Order, Tennessee Dep’t of Env’t & Conservation v. Depart-ment of Energy, No. 99-0438 (Nov. 2, 1999). This fund was estab-lished pursuant to Tennessee state law. See Tenn. Code Ann.

§§68-212-108 (h), 9-4-603. DOE has asserted that this is not a trustfund but is an “investment fund” (without indicating that there is anydifference in this distinction), and has insisted that the fund in Ten-nessee is a one of a kind situation that sets no precedent for any of themore than a hundred sites where DOE plans to place residual wasteand contamination in place after cleanup is completed.

309. Bauer & Probst, supra note 202; U.S. DOE, Long-Term Stew-

ardship Study (2001). In the public comments regarding the draftDOE study, concern about long-term funding was the second mostcommon topic of comments submitted.

310. National Academy of Sciences, Energy Legacy Waste

Sites, supra note 202.

311. Unfortunately, a “Chamber of Commerce” mentality too often per-vades the community response after a cleanup is completed,whereby no contamination information is made available becauseit is perceived to impose a “stigma” on the community. In fact, de-lays in having the information available can cause significant lia-bility problems, increased costs for insurance and constructionscontingency, and higher development costs while capital equip-ment that has been mobilized sites idle while the extent of contami-nation in investigated.

312. For example, the recent initiative by Senator Domenici to study thehealth impacts of radiation is widely recognized as an effort toloosen standards, and seek to prove a hormesis effect of radiation,where by at certain levels, radiation has a therapeutic effect.

313. “Risk assessment” is distinguished from “risk management” by aseminal 1983 National Academy of Sciences report on the subject,known as the “Red Book.” The NAS report recognized risk assess-ment as the objective analysis of the sources, hazards exposures andeffects; whereas risk management was identified as the subsequentmanagement decisions using the best available information.

314. See IV.B.2, supra, discussing Principle 15.

http://www.eli.org

failed to address nuclear nonproliferation or linkages be-tween radioactive waste and nuclear weapons. As a U.N.-sponsored event, the Rio Summit relied heavily on theU.N.’s IAEA for support regarding radioactive waste con-trol, which is often regarded as a specialized technical fieldtoo technically complex for outsiders. The IAEA hasachieved remarkable success in coalescing agreementsamong widely divergent international participants, in spiteof fundamental conflicts in its mission. In addition, theIAEA is appropriately devoting its limited resources to theurgent priorities of nuclear weapons materials controlsand safeguards.

Nonetheless, there are some inherent limitations withcontinued reliance on the IAEA, as currently configured,for international implementation of waste control andnonproliferation objectives. The IAEA is expected to si-multaneously promote nuclear technology and to controlit. These conflicts have resulted in significant limitationon the ability of the IAEA to impose meaningful controlson the spread of nuclear technologies that could threatenworld peace and public health and the environment. In theUnited States, these conflicting dual missions were foundto be unworkable and resulted in the separation of theAEC in 1972, resulting in the establishment of the NRCand the ERDA (later DOE). One long-time nuclear ana-lyst has suggested that “[t]he IAEA membership shouldvote to amend the agency’s statute to relieve the Board ofGovernors of its safeguards authority and limit the boardto pursuing the agency’s nuclear promotional activi-ties.”315 Such a dramatic change is unlikely, however, aslong as limited resources are required for the nonpro-liferation missions that overshadow other radioactivewaste control missions, and nuclear technologies are per-ceived to be valuable for promoting international eco-nomic development.

The summit in Johannesburg could usefully address thebenefits of reorganizing the missions of the IAEA to provideadequate independence of its regulatory functions from itsrole in promoting nuclear technologies. The U.S. system of“checks and balances” may not be perfect, but it provides animproved institutional framework to allow for meaningfulcontrols on these critical materials and technologies. More-over, future discussions about global radioactive waste con-trol issues, should recognize seamless connection betweencertain nuclear weapons proliferation and nuclear waste is-sues, e.g., spent nuclear fuel reprocessing and high-levelwaste management. The artificial barrier between nationalsecurity and environmental issues should be broken down.In light of the extraordinary importance of effectively con-trolling the proliferation of nuclear weapons, especially inthe wake of September 11, no potential barrier to improvedcontrols should remain unquestioned.

F. Openness and Democracy

Nuclear technologies and radioactive waste controls have aserious problem with openness and democracy. Althoughnuclear power provides one-fifth of U.S. electrical powerand U.S. government officials of both political parties assertthat nuclear power is expected to remain a vital element of

our power supply, no operational commercial nuclearpower plants have been ordered in a generation. And al-though successive administrations from both political par-ties have asserted that U.S. national security relies on a reli-able arsenal of nuclear weapons, no major nuclear weaponsproduction facility has been built and operated for nearly 25years. The irony is that the proponents of nuclear powerseem most opposed to greater openness of information anddecisionmaking, while opponents of nuclear technologiesargue for greater openness.

Whatever one’s view about whether the United Statesshould build more nuclear weapons production facilitiesand power plants, there is clearly a troubling disconnect be-tween government policy statements and the reality of nu-clear technology. The source of this disconnect can likely betraced back to the enormous gulf that exists between gov-ernment policy and public acceptance for new facilities, in-cluding waste disposal sites, borne of mistrust in things nu-clear. If this disconnect between policies and the public sup-port continues, it can have a corrosive effect on our demo-cratic institutions and confidence in government. Mendingthis tear in the fabric of democracy will require a long-termand systematic effort at greater openness between govern-ment decisionmaking and the public including a free flowof information.

Unfortunately, because of the inherent technical charac-teristics of nuclear weapons and nuclear waste, securityconcerns about waste could greatly limit the amount of in-formation made available and the access to decisionmakingthat is practical. Consequently, if we accept that sustain-ability in nuclear waste control requires openness and dem-ocratic decisionmaking, then the imperative of effective se-curity controls could make it impossible to have completelysustainable nuclear waste controls.

VII. Conclusion

Both the Rio Declaration and Agenda 21 were conspicu-ously silent on the need for nuclear waste control to comple-ment, not frustrate, global anti-terrorism security and nu-clear nonproliferation efforts. Any thorough assessment ofsustainable development issues must address these issues indealing with radioactive waste controls.

When the Cold War ended and Congress began shiftingfunding from nuclear weapons to the environmentalcleanup and radioactive waste management,316 the bureau-cracy absorbed the money, but the changes were more gla-cial than historic. The funding of accounts changed, but thespecific facility operations and individual personnel did not.Consequently, DOE’s environmental budget has essentiallybeen used to support nuclear weapons facility infrastructureand operations in many cases. Successive DOE managershave tried with limited success to reduce the overhead costs


9-2002 32 ELR 11089

315. Paul Leventhal, The Nuclear Watchdogs Have Failed, Int’l Her-

ald Trib., Sept. 24, 1991, at 11; Paul Leventhal, The Spread of Nu-clear Weapons in the 1990s, 8 Med. & War 261 (1992).

316. Because both the “Defense Programs” or “DP and the “Environ-mental Management” or “EM” are both funded from Atomic En-ergy Defense Activities account within the defense budget, thenthere is a direct, zero sum, trade off between funding nuclear weap-ons activities versus funding environmental cleanup and wastemanagement. See U.S. DOE, Office of Environmental Manage-ment, Budget Documents, at http://www.em.doe.gov/budget_docs.html (last visited Apr. 26, 2001); and Office of Management,Budget, and Evaluation, FY 2002 Budget Request , athttp://www.mbe.doe.gov/budget/03budget/index.htm (last visitedApr. 26, 2002).

http://www.eli.org

and eliminate excess facilities.317 But, these efforts have of-ten been stymied by pressure from congressional delega-tions, contractors, local government, and economic devel-opment officials.318

The official assumption during the Cold War was thatnuclear weapons facilities would need to operate in a classi-fied mode indefinitely to protect national security. Conse-quently, the operations were partially immune from regula-tory oversight319 and no plans or budget estimates weremade for stabilizing, decommissioning, decontaminating,or dismantling the facilities.

The existence of significant amounts of nuclear waste,large-scale use of nuclear power and large numbers of nu-clear weapons and surplus fissile material, and their atten-dant health and security risks, dictates a containment andmanagement strategy for the foreseeable future, regardlessof whether the enterprise is sustainable in the long run. The

relatively unique features of nuclear power—producing ex-traordinarily long-lived320 man-made elements, e.g., pluto-nium, with potentially catastrophic security consequencesand intensely radioactive isotopes (cesium-137, stron-tium-90, and cobalt-60)—render it ultimately unsustainablewith current technologies.

The maturing of radioactive waste control and reconcil-ing nuclear technologies with sustainability requires that wedeal with the inextricable relationships to national security.Moreover, national security must be refined to include non-proliferation, environmental security and economic secu-rity as well as vigorous democratic institutions. Reconcilingthe use of nuclear technologies with an open democracy willbe perhaps the biggest challenge to sustainable radioactivewaste control. National security is truly threatened when thepeople must override their common sense in order to believetheir government.


32 ELR 11090 9-2002

317. See U.S. DOE, The 1996 Baseline Environmental Manage-

ment Report, supra note 124; U.S. DOE, Accelerating

Cleanup: Focus on 2006; National Discussion Draft (1997);DOE Paths to Closure Status Report, supra note 286; U.S.

DOE, Top to Bottom Review Report, supra note 302.

318. The same individuals often people serve as DOE contractors,local government officials, and work to promote local eco-nomic development.

319. By law: the U.S. Supreme Court, in Train v. Colorado Public InterestResearch Group, 426 U.S. 1, 6 ELR 20549 (1976), held that theCWA does not apply to radioactive materials regulated under theAEA, and similarly the Supreme Court, in Department of Energy v.Ohio, 503 U.S. 607, 22 ELR 20804 (1992), held that RCRA hazard-ous waste enforcement powers of states did not extend to federal fa-cilities, which were protected by sovereign immunity unless explic-itly waived by Congress. By practical limitations: DOE could limitaccess to facilities for environmental inspectors by denying or delay-

ing security clearances for years until the inspector assigned hadmoved to another job. Also, DOE security staff sometimes harassedthose environmental inspectors who succeeded in gaining access tofacilities (see “Three Blind Mice” incident at Rocky Flats).

320. Although Pu-239 has a half-life (time required for one-half of agiven amount of a radioactive element to decay to other elements) of24,360 years, its persistence is virtually perpetual from a practicalenvironmental management perspective. See R.B. Leonard, Prop-erties of Plutonium Isotopes, in Plutonium Handbook (O.J. Wicked., 1980). The long-lived nature of radioactive waste is not unique.Certain natural toxins, e.g., lead, are truly perpetual. Also, a class ofpersistent organic pollutants, e.g., dioxins and furans, can be aslong-lived and hazardous as certain radioactive pollutants. L.

Ritter et al., An Assessment Report on: DDT-Aldrin-Diel-

drin-Endrin-Chlordane, Heptachlor-Hexachloroben-

zene, Mirex-Toxaphene, Polychlorinated Biphenyls, Diox-

ins and Furans (1995).

http://www.eli.org