Most Recent Action   A Lack of Disposal Sites   Background    Hearing Summaries

Low-level Nuclear Waste Disposal Update (8-9-00)

Every year Washington confronts the same three issues regarding the disposal of low-level nuclear waste (LLW), which consists of low concentrations of short-lived radionuclides.  The first issue facing legislators is reducing the volume of waste now produced by nuclear power plants, industry, medical institutions, and research facilities.  The second issue is how much LLW will be generated in the future, especially with decommissioning of nuclear plants.  Thirdly, states must take on the burden of locating new waste storage sites when recent legislation has closed one of the two national repositories for LLW.  The old adage "not in my backyard" has dominated all federal and state attempts to develop new repositories.

Most Recent Action
The Senate Committee on Environment and Public Works held a hearing on the disposal of low activity radioactive waste on July 25, 2000.  A regulatory nightmare has resulted from a transfer of cleanup authority that attempted to speed up the remediation of old nuclear weapons plants left over from the "Manhattan Project."  The U.S. Army Corps of Engineers (USACE) became responsible for the cleanup of the Department of Energy's (DOE) Formerly Utilized Sites Remediation Action Program (FUSRAP) in 1998, and has since been accused of illegally and dangerously disposing of low-level nuclear waste in unlicensed landfills.  USACE and Nuclear Regulatory Commission (NRC) witnesses claim that the NRC, which licenses all aspects of nuclear waste disposal, lacks the authority to regulate nuclear byproduct materials produced before 1978 under another piece of legislation, the Uranium Mill Tailings Control Act.  Witnesses from the administration, academic, and non-profit sectors argued over legal definitions of the waste and interpretations of the relevant legislation and agency policies.  A unifying thread was that no matter what the legislations says, FUSRAP waste (produced either before or after 1978) poses the same threat to public and environmental health and safety.

The Southeast Compact (consisting of AL, FL, GA, MS, TN, and VA) filed a lawsuit with the U.S. Supreme Court suing the state of North Carolina. In the summer of 1999, North Carolina pulled out of the Southeast Compact and closed its LLW disposal site that was intended to serve all compact member states.  The compact had spent $120 million on the LLW dump in 1996-1997, but it was never finished.  It now faces $90 million in fines.  A spokesman for the watchdog group N.C. Waste Awareness and Reduction Network says that the compact never objected to any of North Carolina's actions and will be unlikely to win the lawsuit.  The compact, like many others across the U.S., does not have a LLW disposal site.

The Barnwell, S.C. facility announced that it will be cutting back on the volumes of LLW it will accept from most states in the future.  Governor Jim Hodges (D-SC) has signed South Carolina into the Atlantic Low-Level Radioactive Compact with Connecticut and New Jersey (formerly the Northeast Interstate Low-Level Radioactive Compact).  Effective July 1, 2000, the Barnwell facility will be slashing the total volume of waste it will accept from non-Atlantic Compact states to zero by 2008.  The first cut will halve the volume from 160,000 cubic feet (cf) to 80,000 cf.  South Carolina, previously a member of the Southeast Compact (then NC, AL, FL, GA, MS, TN, and VA), withdrew in 1995 and had since been accepting waste from all other states until it signed this agreement on December 15, 1999.

Industry sources predict a rise in LLW volumes and levels of radioactivity if more nuclear power plants are decommissioned. Decommissioning can require the disposal of every part of a nuclear plant and any contaminated soil around it.  The "States' Disposal of Low Level Wastes" report forecasts that decommissioning could double LLW volumes that were predicted for the next 10 to 15 years. According to the Nuclear Energy Institute, the annual volume of LLW being disposed of has gone down 94% as a result of storage fee increases from $15 per cubic foot in the 1980's to $300 pcf now.  Yet the volumes being generated have not decreased; producers are simply finding ways to reuse, compact, incinerate, or store the waste on site.

A Lack of Disposal Sites
The Low-Level Radioactive Waste Policy Act of 1980 and its 1985 amendments transferred responsibility for LLW to the states, encouraging the formation of interstate 'compacts' and allowing the original LLW sites to refuse to accept any waste from outside their compacts beginning in 1993.  Currently, more than 40 states are part of a compact, but the only facility accepting all three classes of LLW - Class A, B and C - is Hanford, Washington.  Although officially the disposal site for the Northwest Compact, Hanford has signed a contract to take waste from the Rocky Mountain Compact as well.  A future commercial option may be Envirocare of Utah, Inc., which is waiting for licensing to receive waste with higher (Classes B and C) levels of radioactivity.  Those states without access to a disposal facility will have to store their waste on-site until a permanent one becomes available.  The NRC's Atomic Energy Act licenses 'agreement states' whose regulatory programs meet the EPA's environmental protection standards.  California, Texas, and Utah are 'agreement states' who are allowed to build their own new disposal sites to handle LLW, whereas non-agreement states must have their facilities licensed by the NRC.

A report released by the General Accounting Office titled: Low Level Radioactive Wastes: States Are Not Developing Disposal Facilities, says just that. The report -- released on September 17,1999 in response to a request made by Senate Energy and Natural Resources Committee Chairman Frank Murkowski (R-AK) -- states: "By the end of 1998, states, acting alone or in compacts, had collectively spent almost $600 million attempting to develop new disposal facilities.  However, none of these efforts have been successful."  The GAO report (in pdf format) attributes this lack of progress to public and political disapproval of site selection and the then-declining amount of nuclear waste being produced.  The closure of the Barnwell site may put more pressure on states to develop their own low-level nuclear waste disposal sites.

Background: Two Potential Repositories Blocked
Since the early 1990's, most attention in Washington has been directed towards the development of two prospective low level nuclear waste sites.  The Maine, Vermont, and Texas compact, whose site has been tentatively placed in western Texas, met opposition from those residing in the area.  House members representing those residents were able to keep a ratification bill from being passed until 1998, the same year that the site was denied a facility permit by the Texas Natural Resources Conservation Commission.  Likewise, development of  the Ward Valley site, intended to house wastes from the states of California, Arizona, North Dakota, and South Dakota, has virtually come to a standstill due to pressure from environmental and Native American groups, as well as various Hollywood celebrities.  A brief synopsis of these stories follows.  A more detailed discussion of the subject can be found in AGI's coverage of the 105th Congress.

In June of 1993, the Texas Governor Ann Richards (D) signed legislation establishing a low-level nuclear waste compact with Maine and Vermont. The compact was formally adopted by Maine and Vermont with in a year. The Texas compact was submitted to the US Congress for consent the following summer.  Neither H.R. 4800, introduced by Representative Olympia Snowe (R-ME), or S. 222, introduced by George Mitchell (D-ME), made it to a floor vote during the 103rd Congress.  Similar, futile, actions were taken in the 104th Congress.  Opposition to the compact came mainly from West Texas representatives whose constituents resided near the Faskin Ranch site, located near Sierra Blanca in Hudspeth County.  In addition to environmental justice concerns that the proposed site area is occupied by a poor, mostly hispanic population, opponents of the legislation alleged that the Sierra Blanca site location imposed on an area already stressed by an extensive sewage sludge problem. They also claimed that actions would violate the 1983 La Paz Agreement with Mexico, in which both countries agreed to "prevent, reduce, and eliminate sources of pollution" in the border area.  The Senate passed a conferenced version of H.R. 629, the Texas Low Level Radioactive Waste Disposal Compact Consent Act, on September 2, 1998 by a 78-15 margin, almost a year after the House passed the bill by a 309-107 vote. President Clinton signed the bill into law (PL 105-236) later that month.  On October 22, 1998, however, the Texas Natural Resource Conservation Commission denied a permit for the facility, stalling or possibly preventing the site from opening.

In 1991, Ward Valley, a federally owned piece of land in the Mojave Desert of southern California, was chosen to house the Southwestern low-level radioactive waste compact's storage facility.  In January 1993, outgoing Interior Secretary Manuel Lujan decided to sell the land to California after a Supplemental Environmental Impact Statement (SEIS) was completed. The land transfer was stopped and challenged in court on the basis that the decision was not in compliance with the National Environmental Policy Act (NEPA) and failed to protect desert tortoises under the Endangered Species Act.  Incoming Interior Secretary Bruce Babbitt rescinded the earlier land transfer in order to further study the site after he was approached by USGS scientists (known as the Wilshire group)  expressing concern about possible contamination of the Colorado River.  A subsequent National Research Council panel, chaired by Stanford geology professor Dr. George Thompson, addressed the concerns raised by the Wilshire group in its report released in May 1995.  In July 1997, the Senate Energy and Natural Resources Committee held a hearing on S. 964, a bill introduced by committee chairman Frank Murkowski (R-AK) in order to transfer the Ward Valley land to the state for development of a storage facility.  This bill did not make it past that committee during the 105th Congress. The new California Governor Gray Davis (D) in June 1999 effectively vetoed Ward Valley as a potential waste disposal site when he did not appeal a U.S. District Court ruling that the federal government did not have to transfer the land to California.  He has since formed an advisory board to consider all options to deal with LLW including finding a new dump site in California.

Senate Committee on Environment and Public Works
July 25, 2000

Hearing on the Disposal of Low Activity Radioactive Waste

The Bottom Line
This regulatory nightmare is the result of a transfer of cleanup authority which attempted to speed up the remediation of old nuclear weapons plants left over from the "Manhattan Project."  The U.S. Army Corps of Engineers (USACE) became responsible for the cleanup of DOE's Formerly Utilized Sites Remediation Action Program (FUSRAP) in 1998, and has since been accused of illegally and dangerously disposing of low-level nuclear waste in unlicensed landfills.  USACE and Nuclear Regulatory Commission witnesses claim that the NRC, which licenses all aspects of nuclear waste disposal, lacks the authority to regulate nuclear byproduct materials produced before 1978 under another piece of legislation, the Uranium Mill Tailings Control Act.  Witnesses from the administration, academic, and non-profit sectors argued over legal definitions of the waste and interpretations of the relevant legislation and agency policies.  The unifying theme was that no matter what the legislations says, FUSRAP waste (produced either before or after 1978) poses the same threat to public and environmental health and safety.

Members Present
Sen. Robert Bennett (R-UT)
Sen. Orrin Hatch (R-UT)
Sen. Barbara Boxer (D-CA)

Opening Statements
Sen. Bennett gave a brief background to this complicated regulatory low-level waste disposal loophole hearing.  From 1974 to 1997, the U.S. Department of Energy (DOE) ran the Formerly Utilized Sites Remediation Action Program (FUSRAP) to clean up the decommissioned "Manhattan Project"  and early Atomic Energy Commission nuclear weapons complexes.  All waste from these sites, mostly mill tailings and irradiated building materials, were disposed of in DOE or Nuclear Regulatory Commission (NRC) licensed facilities.  The 1998 Energy and Water Development Appropriations Act (P.L. 105-62) transferred FUSRAP from DOE to the U.S. Army Corps of Engineers (USACE).   However, USACE ascertained that the NRC did not have regulatory authority over any radioactive waste generated before 1978.  The Uranium Mill Tailings Control Act of 1978 (UMTRCA) amended the Atomic Energy Act of 1954 (AEA) and gave the NRC statutory jurisdiction over any tailings produced after 1978, but was not interpreted to apply retroactively to FUSRAP sites.  The bottom line is that disposal of certain types of radioactive wastes generated before 1978 are not regulated by any federal or state agency.

Sen. Boxer elaborated that the legislative gap allowed USACE to dump 2,200 tons of radioactive waste in an unlicensed hazardous waste facility in Buttonwillow, CA.  Most radioactive waste must be contained in NRC-licensed facilities that are equipped to monitor and manage the waste for a limited amount of time.  Most solid waste landfills are licensed for only 30 years, not nearly enough for the decay of radioactive isotopes with half lives orders of magnitude longer.  She demanded that new legislation be enacted to restore NRC authority over pre-1978 FUSRAP waste, and that the waste be removed from California.

The Panel
Joseph Westphal, Assistant Secretary of the Army (for Civil Works), Department of the Army
Carl Paperiello, Deputy Executive Director for Materials, Research and State Programs, Nuclear Regulatory Commission
Mike Shapiro, Deputy Assistant Administrator of OSWER, Environmental Protection Agency
Max Scott, Professor Louisiana State University
David Adelman, Staff Attorney, Natural Resources Defense Council
Scott Slesinger, Vice President of Governmental Affairs, Environmental Technology Council
Anthony J. Thompson, Attorney, Uranium Recovery Industry

Joseph Westphal testified that FUSRAP is regulated under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) that provides oversight from the EPA and from the states.  Westphal argued that disposal of mill tailings or waste produced before UMTRCA in 1978 falls under the jurisdiction of Resource Conservation and Recovery Act (RCRA), and does not require NRC licensing.  He stated that the decontaminated wood, mansonry and asbestos waste deposited at Buttonwillow, CA has radioactivity averaging 335 picocuries/gram that was well within that facility's state-licensed capability.  Furthermore, California was notified twice of the specification of the waste to be deposited by Safety-Kleen at Buttonwillow's RCRA Subtitle C facility.  The California Department of Toxic Substances Control, which is responsible for the state's RCRA program, "has not found any violations of RCRA by the company in accepting these shipments."  However, Westphal has requested an Army Audit Agency investigation into Buttonwillow disposal.

Carl Paperiello stated that the NRC will not regulate any pre-UMTRCA (1978) mill tailings remediated by the USACE at FUSRAP sites without congressional direction to the contrary.  He stated that the Appropriations Committees have not given the NRC either the authority or the resources to oversee USACE's involvement in FUSRAP.  Paperiello noted the "fragmented statutory regime governing radioactive materials."  The witness agrees with USACE that the use of RCRA Subtitle C facilities in the FUSRAP program actually helps to limit the amount of low-level waste bound for compact states repositories.  Paperiello concluded with a discussion of the similarities between mill tailings and other radioactive waste and why they are regulated differently.  The NRC believes that both RCRA landfills and NRC-licensed disposal facilities are protective, but notes that NRC's are set up to be stable for more than 200 years.

Mike Shapiro deliniated the EPA's involvement and regulatory details pertaining to FUSRAP waste disposal.  According to UMTRCA's amendments to the Atomic Energy Act, mill tailings and materials exposed to radiation (the type found at FUSRAP sites) are designated 11e.2 byproduct materials.  The tailings are produced by the "extraction or concentration of uranium or thorium from any ore processed primarily for its source material content."  UMTRCA gave EPA regulatory reponsibility for establishing public and environmental health and safety standards for these millings, and NRC responsibility for enforcing those standards after 1978.  Seven of the 23 remaining FUSRAP sites are on Superfund's National Priorities List and are thus covered by strict CERCLA (Superfund) disposal requirements.  However, the remaining sites depend on EPA's RCRA and state regulations.  The regulatory loophole occurs in the definition of solid waste as defined by RCRA which excludes "source, special nuclear, and byproduct materials as defined by the Atomic Energy Act."  Therefore, in the absence of state legislation, neither EPA nor NRC has any jurisdiction over mill tailings disposal standards.

Max Scott recommended that to cover FUSRAP waste disposal, a comprehensive regulatory regime needs to be based on annual radiation exposure limits. He cited numerous examples of state legislation that had created such limits.  Scott believes that the one practical, economical way of disposing of FUSRAP waste is by landfill burial with techniques to limit airborne particulate and leeching into groundwater.   He stated that RCRA Subtitle C and D disposal facilities, like the one at Buttonwillow, CA, are well-equipt to restrict such exposures.  Scott recommended specific limits to the average dose to individuals could receive from a landfill or watertreatment plant waste whose radioactive wastes do not make up more than 10% of the facility.

David Adelman testified that the "USACE and NRC are propounding a completely irrational reading of the AEA solely to save money on radioactive waste disposal."  He stated that money would be better spent providing the proper disposal of radioactive wastes now, than to spend more remediating leaking landfills in the future.  Adelman listed numerous allegations of USACE short-comings and environmental irresponsibility including leaving radioactive contamination in the ground that is at least 6 times higher than a DOE or CERCLA clean up would, as well as diluting radioactive soil with clean soil so it can be disposed of in an off-site unlicensed facility.  In terms of state regulations, states are either not licensed by the NRC to handle or regulate radioactive waste, or they are "agreement states" which have NRC authority but are imited, like the NRC, by UMTRCA.  He argued that even Subtitle C and D RCRA landfills are not monitored for radionuclide transport, making limiting groundwater leeching impossible.  Adelman added that no public review or comment period exists to inform residents that their local hazardous waste facility, or a solid-waste landfill will be receiving radioactive waste.

Slesinger explained that the reason FUSRAP was transferred from DOE to the USACE in fiscal year (FY) 1998 is because Congress was frustrated with the slow pace of some FUSRAP cleanups.  Responding to congressional pressure to reduce cleanup costs, USACE found that using hazardous waste treatment landfills would be an economical alternative to the single license low-level waste repository.  Slesinger acknowledged that there is no scientific reason for the 1978 byproduct material division date, yet he maintained that RCRA Subtitle C facilities are at least as protective as NRC licensed low-level waste disposal facilities.   He stated that USACE has chosen landfills in arid, low precipition areas that more closely match the sites selected for low-level repositories.  Slesinger concluded that RCRA facilities be allowed to receive all low-radioactivity byproduct waste, not just that produced before 1978.

Anthony Thompson framed the issue in terms of whether or not the NRC has the right to regulate radioactive FUSRAP materials if they were produced after the UMTRCA amendments to the AEA and, if those materials meet the AEA's definition of byproduct material.  He argued that NRC actually does have jurisdiction over waste produced before UMTRCA.  He cited NRC and DOE policy statements that state that radioactive materials 11e. 2, "that DOE control for final deposit must be subject to NRC regulatory oversight."  Therefore, these materials, when located at a FUSRAP or other DOE-administered sites, are not subject to NRC regulation because DOE does not require NRC licensing.  The second aspect is covered by a plain language reading of the designation 11e. 2 material which does not include temporal or license-related conditions.   Thompson stated that Congress intended that mill tailings and waste were to be defined as such regardless of other legislation and that no person may own, posses, produce, transfer, or receive 11e.2 byproduct material without a NRC licence.  These, and several other AEA and DOE provisions, suggest that the USACE wrongly defined the waste and disposed of it illegally at either the Buttonwillow facility (as 11e. 2 material requiring an NRC license) or at the NRC-licensed Envirocare of Utah, Inc. facility (as non-11e 2. material).   At last Thompson pointed out that FUSRAP waste, produced either before or after 1978, poses the same threat to public and environmental health and safety and should be regulated appropriately as one type of waste.

Full testimonies are available on the Senate website.


Sources:  AGI update from 105th Congress, General Accounting Office, Greenwire, EEnews, Congressional Research Service

Please send any comments or requests for information to the AGI Government Affairs Program at

Contributed by 1999-2000 AGI/AAPG Geoscience Policy Intern Alison Alcott and 2000 AGI/AIPG Geoscience Policy Intern Audrey Slesinger

Posted: November 9, 1999; Last Updated August 9, 2000

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