Copyright © 2002 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
9-2002
ELR
NEWS & ANALYSIS
Toward Sustainable Radioactive Waste Control:
Successes and Failures From 1992 to 2002
by James D. Werner
Table of Contents
I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . 11059
A. What Does Sustainability Mean for Radioactive
Waste? . . . . . . . . . . . . . . . . . . . . . . . . . . . 11059
B. Are We Moving Toward or Away From
Sustainability?. . . . . . . . . . . . . . . . . . . . . . 11061
C. Recommendations . . . . . . . . . . . . . . . . . . . 11061
D. Chapter Overview . . . . . . . . . . . . . . . . . . . 11062
II. A Radioactive Waste Primer . . . . . . . . . . . . 11062
A. Low-Level Waste . . . . . . . . . . . . . . . . . . . . 11062
B. Mixed (Radioactive and Chemical) Waste . . 11063
C. High-Level Waste (Including Spent Nuclear
Fuel) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11063
D. Transuranic Waste. . . . . . . . . . . . . . . . . . . 11065
III. Summary of the Past 10 Years in Radioactive
Waste Control . . . . . . . . . . . . . . . . . . . . . . . 11065
A. Nuclear Waste Assumptions Are Changed by
the End of the Cold War . . . . . . . . . . . . . . 11065
B. Commercial Nuclear Waste Eclipsed by Nuclear
Weapons Facilities’ Waste . . . . . . . . . . . . . 11070
IV. Measuring Progress Toward
Sustainability . . . . . . . . . . . . . . . . . . . . . . . . 11071
A. Radioactive Waste Control in the Rio Declaration
and Agenda 21 . . . . . . . . . . . . . . . . . . . . . 11072
Jim Werner is an engineer who directs the Reprocessing Policy Project in
Washington, D.C., through support by the Ploughshares Fund. He is also a
Senior Policy Advisory for the state of Missouri Department of Natural
Resources. He served previously as Director of Strategic Planning and
Analysis, 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 Environmental
Engineer and Senior Associate at ICF Technology, a private consulting
firm (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 from
the 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 of
the world formally endorsed the concept of sustainable development and
agreed to a plan of action for achieving it. One of those nations was the
United States. In August 2002, at the World Summit on Sustainable Devel-
opment, these nations gathered in Johannesburg to review progress in the
10-year period since UNCED and to identify steps that need to be taken
next. Prof. John C. Dernbach has edited a book that assesses progress that
the United States has made on sustainable development in the past 10
years and recommends next steps. The book, published by the Environ-
mental Law Institute in July 2002, is comprised of chapters on various
subjects by experts from around the country. This Article appears as a
chapter in that book. Further information on the book is available at
www.eli.org or by calling 1-800-433-5120 or 202-939-3844.]
32 ELR 11059
B. U.S. Progress and Backsliding on Rio Principles
and Agenda 21 Activities . . . . . . . . . . . . . . 11072
1. Management Activities. . . . . . . . . . . . . . 11073
2. International Cooperation and
Coordination . . . . . . . . . . . . . . . . . . . . . 11074
Principle 3—Intergenerational
Impacts. . . . . . . . . . . . . . . . . . . . . . . 11074
Principle 10—Openness and Public
Participation . . . . . . . . . . . . . . . . . . . 11075
Principle 13—Worker Compensation . . 11076
Principle 15—Precautionary Principle,
Health Effects, and Hormesis . . . . . . . 11078
Principle 16—Internalize Costs and Use
“Polluter-Pays” Principle . . . . . . . . . . 11078
V. U.S. Sustainability Progress and Backsliding for
Various Types of Radioactive Waste. . . . . . . 11079
A. High-Level Waste and Spent Nuclear Fuel. . 11079
B. Transuranic (Plutonium) Waste. . . . . . . . . . 11081
C. Low-Level Waste . . . . . . . . . . . . . . . . . . . . 11082
D. Mixed (Hazardous and Chemical) Waste . . . 11085
E. Environmental Restoration of Contaminated
Facilities . . . . . . . . . . . . . . . . . . . . . . . . . 11085
VI. Recommendations . . . . . . . . . . . . . . . . . . . 11086
A. Use Existing Institutions, Laws, and Science
More Effectively . . . . . . . . . . . . . . . . . . . . 11086
B. Reform or Develop New Institutional
Mechanisms . . . . . . . . . . . . . . . . . . . . . . . 11087
C. Establish a Trust Fund for Long-Term
Stewardship . . . . . . . . . . . . . . . . . . . . . . . 11087
D. Improve Scientific, Technical, and Institutional
Basis for Radioactive Waste Management . . 11088
E. Explicitly Connect Nuclear Waste Management
With Nonproliferation Issues as Well as
Environmental and Safety Issues. . . . . . . . . 11088
F. Openness and Democracy . . . . . . . . . . . . . 11089
VII. 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 reaction
inside a squash court under the spectator stands of Stagg
Field at the University of Chicago on December 2, 1942.1 In
1992—a half century after the first controlled nuclear reac-
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).
32 ELR 11060 ENVIRONMENTAL LAW REPORTER
Copyright © 2002 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
tion on earth—the Rio Summit found no consensus on the
meaning of “sustainability” in nuclear waste control. Ten
years later, our technical understanding and regulatory ef-
forts have improved, even as the global situation raises new
concerns. But, we are still far from a consensus on what a
sustainable 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 greater
degree than other human endeavors. Although uranium ex-
ists naturally in the earth’s crust, the fissioning of uranium in
reactors 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 variety
of medical and scientific benefits with less evident immedi-
ate and direct health impacts than other energy sources, such
as 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 nuclear
power 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 and
calamity from nuclear explosions. In this way nuclear
power—if it involves reprocessing and recovery of fissile
material, 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 be
avoided, then the risks are more comparable to other human
endeavors 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 products
that persist for hundreds, thousands, or millions of years.5
Much of the waste will remain radioactive and potentially
hazardous for longer than the experience of humans in man-
aging any endeavor, much less safeguarding a material that
no longer provides any benefit, but only the threat of harm.
2. “Waste” is used here to include spent nuclear fuel and radioactive
byproduct (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 Oklo
in 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 are
no closer than 93 million miles away from earth.
4. Ancient chemists, known as “alchemists,” sought to convert lead
and other common elements into gold. Only later did nuclear theory
recognize the “indivisibility” of elements composed of atoms, which
by definition is an “irreducible constituent of a specified system.”
The American Heritage Dictionary of the English Lan-
guage (1978). Paradoxically, this recognition of the conventional
indivisibility 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 for
this magical energy source is both a vigilance and a longevity of
our 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).
9-2002
The meaning of “sustainability” in nuclear waste control
depends on whom you ask and how you define it. The 1987
Brundtland Commission defined “sustainable develop-
ment” as “development that meets the needs of the present
without compromising the ability of future generations to
meet their own needs.”6 The 1992 Rio Summit invoked this
definition in developing sustainability principles and in
drafting Agenda 21. By this definition, some would argue
that generating nuclear wastes that remain radioactive for
thousands of years cannot, ipso facto, be sustainable.7 Of
course, all major sources of energy result in some waste and
potential 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 we
recycle 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 end
product, refined plutonium, and creates multiple security
problems.9
Other definitions of sustainable development include
three core elements: economic sustainability, environmen-
tal sustainability, and social sustainability.10 The principles
incorporated 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-
6. World Commission on Environment and Development
(WCED), Our Common Future 43 (1987). Named for its chair,
Norwegian Prime Minister Gro Harlem Brundtland, the WCED
published 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 to
ascertain what level of harm is tolerable in exchange for the benefits
of the activity that causes the harm, the cost-benefit approach that is
applied 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. Rose
Lecture, Massachusetts Institute of Technology, Cambridge,
Massachusetts, Nov. 13, 1998); and Douglas S. McGregor, Re-
thinking Nuclear Power, 17 The New Am. 9 (2001), available at
http://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 conference
held 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, at
http://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].
9-2002 NEWS & ANALYSIS
Copyright © 2002 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
eral relevant principles from the Rio Declaration and
Agenda 21, as well as the question of whether U.S. nuclear
waste management has become more or less consistent
with these principles.
Paradoxically, some analysts have asserted that the rela-
tively “low-tech” process of harvesting and using wood for
charcoal and other solid fuels, and the resulting soot12 pro-
duced in diesel emissions and from carbon dioxide made by
fossil fuels have caused the largest global energy production
impacts 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) is
speculative and irresolvable. The current situation with sur-
face storage of some nuclear waste and reprocessing of
spent nuclear fuel to produce weapons-usable material is
clearly not sustainable.
In certain respects, radioactive contamination in air or
drinking water or soil may appear to be similar to a variety of
other pollutants.14 But, because some nuclear wastes, e.g.,
spent nuclear fuel, can be reprocessed or “recycled”15 to
produce plutonium and other fissile materials16 that can be
used to produce nuclear weapons,17 the existence, much less
the continued production, of these radioactive wastes in
combination with reprocessing is not sustainable from a na-
tional security perspective, perhaps more than an environ-
mental perspective. Because of the extraordinary potential
for nuclear materials to be used for weapons that threaten
peace and security,18 this Article pays special attention to
12. The technical term typically used is “particulates,” particularly
“PM10,” i.e., particulate matter with a median diameter less than or
equal to 10 microns, which results in greater potential health effects
due to increased respirability and ability to be inhaled and lodged in
the 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, and
Health, in World Energy Assessment: Energy and the Chal-
lenge of Sustainability (2000). Holdren’s earlier paper on the
meaning of sustainability concluded that “[t]he remedy, of course, is
to ascertain what level of harm is tolerable in exchange for the bene-
fits of the activity that causes the harm, the cost-benefit approach that
is 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), they
can quickly pass through the human body with little effect in some
cases (the author does not advise this at home or anywhere else).
However, when inhaled, nuclear material has a grave potential for
causing cancer or other health problems, especially when lodged in
alveoli in the deep lungs. Other radionuclides such as cesium-137
and iodine-128 can be selectively bound up into bone or thyroid tis-
sue, respectively, causing chronic problems, such as bone cancer or
thyroid disease.
15. This term has been used by some reprocessing proponents to convey
an environmentally friendly image to a technology that was devel-
oped and used for producing plutonium and other essential nuclear
materials for weapons.
16. “Fissile” refers to the ability of a material, e.g., plutonium (Pu)-239
and uranium (U)-235, to undergo a nuclear chain reaction releasing
enormous amounts of energy at many orders of magnitude greater
than a comparable amount of chemical explosive.
17. The purity of the Pu-239 extracted from nuclear power reactor fuel is
not ideal, but nonetheless useable, for a nuclear warhead with a sig-
nificant yield. The United States demonstrated such a device in the
early 1960s.
18. The U.N. Charter, which created the United Nations at the end of
World War II, is specifically intended to achieve international peace
and security. See John C. Dernbach, Sustainable Development: Now
More Than Ever, 32 ELR 10003 (Jan. 2002).
32 ELR 11061
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 for
governance, rather than merely philosophy, it is critical that
it include not just resource depletion issues, but also the na-
tional security implications of development patterns.20
Nonetheless, sustainable nuclear waste control may, in the
long run, be an oxymoron.
B. Are We Moving Toward or Away From Sustainability?
In the 10 years since the first Earth Summit in Rio, the
United States has taken a number of actions that have moved
us closer to sustainability in nuclear waste control if mea-
sured by the limited number of recommendations in Agenda
21. Perhaps by design, these recommendations were very
consistent with U.S. plans and actions during the 1990s.21
When measured against the broader principles embodied
in the Rio Declarations, however, the United States has
fallen short of making significant progress toward
sustainability in radioactive waste controls. For example,
despite some initial progress, the U.S. decisionmaking pro-
cess for radioactive waste control has become considerably
more closed. Also, attempts to address worker safety and
intergenerational impacts have reversed course despite
some progress in some areas.
C. Recommendations
Several recommendations are discussed in more detail in
Section VI. These include:
1. Use Existing Institutions, Laws, and Science
More Effectively. Before embarking on any initia-
tives to establish new radioactive waste control
programs, 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 likely
require new institutions. For example, an opera-
tional line management organization, i.e., not
solely a policy analysis group, will likely be re-
quired to build and operate major new facilities
for plutonium disposition. Also, some new or-
ganization arrangement will likely be required
for long-term stewardship of facilities were resid-
ual contamination and waste remain after cleanup
is completed.
3. Establish a Trust Fund for Long-Term Steward-
ship. Because of the extraordinarily long periods
required for post-cleanup stewardship of nuclear
facilities, and the uncertainty about relying on the
annual appropriations process, a dedicated trust
19. Each of the other three elements—economic development, social
development, 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 for
National Governance, 49 Case W. Res. L. Rev. 1, 85-90 (1998).
21. See Section IV.B., infra, entitled U.S. Progress and Backsliding on
Rio Principles and Agenda 21 Activities.
22. 42 U.S.C. §§4321-4370d, ELR Stat. NEPA §§2-209.
32 ELR 11062 ENVIRONMENTAL LAW REPORTER
Copyright © 2002 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
fund and insulated organization will likely be re-
quired to ensure sufficient resources are available
for the long periods required.
4. Improve Scientific, Technical, and Institutional
Basis for Radioactive Waste Management. A more
robust and publicly accepted basis for decisions
must be developed. This will require investments
in credible science, and a deliberate effort to earn
improved credibility among government agencies.
5. Explicitly Connect Nuclear Waste Management
With Nonproliferation Issues as Well as Environ-
mental and Safety Issues. The seamless connection
between certain aspects of radioactive waste con-
trol and nuclear weapons proliferation should be
acknowledged. The United States should support
changes in the International Atomic Energy Agency
to separate the regulatory safety and safeguards
functions 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 more
openness and commitment to democratic decision-
making can help, serious questions remain about
whether the technical concerns about the security
of radioactive wastes and related nuclear opera-
tions are compatible with open and democratic
decisionmaking 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 Declaration
and Agenda 2123 that are useful for measuring progress on
sustainability in radioactive waste control. These criteria are
then used to examine various types of radioactive wastes, to
assess whether we have moved toward or away from a
more sustainable society as a result of changes in our ap-
proach to radioactive waste controls. Finally, several rec-
ommendations flowing from this assessment are offered
for consideration.
II. A Radioactive Waste Primer
Essential to any discussion of radioactive waste is a clear
understanding of how various types of wastes are defined.24
In the United States, legal definitions of radioactive waste
types are generally based on where the waste came from and
23. U.N. Conference on Environment and Development (UNCED),
Agenda 21, U.N. Doc. A/CONF.151.26 (1992), available at
http://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) [hereinafter
Linking Legacies]. For an accessible summary of nuclear waste
definitions 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, it
is not substantially out of date.
9-2002
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 related
to its radioactivity level, i.e., the higher the inherent radioac-
tivity level, the lower the volume of the waste (see Table
1).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 million
cubic meters) of the total U.S. radioactive waste volume
is radioactive “byproduct”29 waste; whereas more than
90% of the radioactivity in U.S. radioactive waste is in
spent nuclear fuel and high-level waste from nuclear
weapons 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 Annually
about 200,000 m3 of low-level and intermediate-level waste
and 10,000 m3 of high-level waste (as well as spent nuclear
fuel destined for final disposal) is generated worldwide
from 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 of
radionuclides increases.32
A. Low-Level Waste
Low-level radioactive waste includes any radioactive waste
not classified as spent fuel, high-level waste, transuranic
25. In contrast to the U.S. system, radioactive waste is categorized in
most countries, particularly European nations, according to the level
and 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 in
high-level byproduct and TRU wastes. Consequently, although the
average radioactivity for these waste types might have changed less
than other waste types, e.g., low-level waste, they nonetheless con-
tain large amounts of mixed fission products, many of which decay
relatively rapidly.
27. The volume of spent nuclear fuel is largely a theoretical data point
because it must be stored with ample separation between fuel rods to
avoid 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) is
roughly 1% of the amount of low-level waste (commercial and
DOE-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/DWG
95-8849R3) [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 the
Atomic Energy Act. See 42 U.S.C. §2014(e)(2).
30. U.S. DOE, Summary Data on the Radioactive Waste, Spent
Nuclear Fuel, and Contaminated Media, supra note 28.
31. Id. at 4-1.
32. Agenda 21, supra note 23, ¶ 22.1 (paragraph within Chapter 22
on Safe and Environmentally Sound Management of Radioac-
tive Wastes).
9-2002 NEWS & ANALYSIS
Copyright © 2002 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
waste, or byproduct material such as uranium mill tailings.33
It is commonly regarded as containing relatively low levels
of radioactivity, but it can also include relatively high levels
of radioactivity and typically includes radionuclides34 that
are as long-lived as those found in high-level waste. Al-
though low-level wastes are generally less radioactive than
high-level wastes, some types of low-level waste can be
more radioactive than some types of high-level waste.35
Nongovernmental organizations (NGOs) have long rec-
ommended changes to this radioactive waste classification
scheme,36 but no serious legislative efforts have been
made.37 Recently, however, a U.S. Department of Energy
(DOE) report recommended changes in this scheme of
waste definition, though DOE has not proposed any specific
legislation, and the reference appears to be more rhetori-
cal—to shirk “burdensome regulatory requirements”—than
a serious policy proposal.38
B. Mixed (Radioactive and Chemical) Waste
“Mixed waste” includes both radioactive constituents and
hazardous chemicals that are regulated by the Resource
Conservation and Recovery Act (RCRA).39 The term gener-
ally refers to low-level mixed wastes, but could also include
other radioactive waste forms. In fact, transuranic waste and
high-level waste are generally mixed. The regulatory
schemes 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
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 where
radioactive waste categories are defined according to the level or
longevity 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 refer
to 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 would
like 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 waste
to be defined in a way that reflects the hazard and level of radioactiv-
ity. Nuclear industry officials might like the definition of high-level
waste to be changed to allow for certain wastes to be excluded from a
repository 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 of
this recommendation, however, appears to emphasize the potential
for reducing financial costs more than increasing public health
protections. Also, DOE has failed to develop or seek any political
consensus 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 hazardous
chemical constituents that would otherwise be subject to RCRA reg-
ulations, Congress further exempted DOE from RCRA land disposal
32 ELR 11063
States generated and stored approximately 3,000 m3 and
44,000 m3, respectively, of mixed low-level radioactive
waste.41
The definition and regulation of mixed waste remains a
bizarre mix of legal authorities. The hazardous component
of mixed waste is subject to RCRA regulation. But, the in-
termingled radioactive constituents are subject only to
Atomic Energy Act42 control, not RCRA.43 In terms of the
radioactive portion of mixed wastes, source, special nu-
clear, and byproduct material are explicitly excluded from
the 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 resulting
from reprocessing spent nuclear fuel, and (2) spent nuclear
fuel, if that spent fuel is not expected to be reprocessed.46 In
the world of civilian nuclear waste, the terms “nuclear
waste,” “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 preserve
the option of using it as a “resource” by reprocessing it to re-
cover plutonium.47 In common parlance—including na-
restrictions for the WIPP site in 1996. Waste Isolation Pilot Plant
Land Withdrawal Act of 1992, Pub. L. No. 102-579, 106 Stat. 4777,
as amended by the National Defense Authorization Act for Fiscal
Year 1997, Pub. L. No. 104-201, §§3187-88 (1996).
41. U.S. DOE, Summary Data on the Radioactive Waste, Spent
Nuclear Fuel, and Contaminated Media, supra note 28, at
8-1.
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 regulation
of mixed waste has a tortured history that largely preceded the Rio
Summit. See generally David P. O’Very, Regulation of Radioactive
Pollution, in Controlling the Atom in the 21st Century (Da-
vid P. O’Very et al. eds., 1994); Barbara A. Finamore, Regulating
Hazardous and Mixed Waste at Department of Energy Nuclear
Weapons 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 of
Energy 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 of
other nuclear materials, which includes most of the mixed fissions
products, e.g., strontium-90, cesium-137, technetium-99, initially
part of the spent fuel and target being reprocessed. It also includes
the solids, such as crusts, salt cake, and other nonliquid materials that
subsequently 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 resulting
from the reprocessing of spent nuclear fuel, including liquid waste
produced directly in reprocessing and any solid material derived
from such liquid waste that contains fission products in sufficient
concentrations,” 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) has
defined high-level waste by regulation to also include “irradiated
(spent) reactor fuel (not intended for reprocessing)” and solidified
high-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 as
high-level waste. DOE continues to distinguish spent fuel from other
high level waste forms, e.g., raffinnate resulting from reprocessing
spent fuel, despite DOE’s 1992 decision to phase out reprocessing,
32 ELR 11064 ENVIRONMENTAL LAW REPORTER
Copyright © 2002 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
tional news media coverage—high-level waste refers to
spent nuclear fuel, especially the spent fuel stored at com-
mercial nuclear power plants. In common parlance, when
the national news media mentions nuclear waste, they are
referring 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 and
spent nuclear fuel is more critically important because of its
potential implications for proliferation of nuclear weapons
materials, 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 waste
that has been buried or is being stored,48 they represent more
than 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 weapons
materials, by extracting from it the plutonium that would
otherwise be “locked up” in the mixed fissions products
from the nuclear reactor. Consequently, the question of
whether spent nuclear fuel is considered a radioactive
“waste” and how it is managed has potentially significant
nuclear nonproliferation implications. Also, high-level
waste is a critical tool for detecting and preventing nuclear
weapons proliferation because it can be analyzed to deter-
mine whether it has resulted from weapons grade plutonium
extraction, or reactor grade plutonium extraction.51 Al-
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 spent
nuclear fuel virtually impossible, without potentially dangerous in-
terstate transportation of spent fuel. The reasons for DOE’s irrational
distinction include: (1) bureaucratic inertia; (2) a desire to elude in-
dependent external regulation, which might apply if it were declared
a “waste”; and, fundamentally, (3) a hope by some in DOE (contrary
to all objective evidence) that the spent fuel might someday be repro-
cessed because it represents a valuable nuclear material asset for
weapons 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 point
because it must be stored with ample separation between fuel rods to
avoid 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) is
roughly 1% of the amount of low-level waste (commercial and
DOE-disposed/stored is more than 1 million m3. See U.S. DOE, In-
tegrated Database—1996, supra note 27.
49. U.S. DOE, Summary Data on the Radioactive Waste, Spent
Nuclear Fuel, and Contaminated Media, supra note 28, at
2-3.
50. All things being equal, risk is proportional to radioactivity. All
things however are not equal, and one must be careful about mak-
ing this generalization using the basic definition of risk as product
of probability and consequence. Probability of exposure to
low-level waste may be greater because workers are more likely
to being exposed to low-level than high-level waste because of
the more common occurrence of, and reduced safety standards
applicable, 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).
9-2002
though not widely pursued, some components of high-level
waste could be extracted to produce weapons material.52
As noted above, there has been little attempt to redefine
nuclear waste in terms of its risks and radioactivity, instead
of 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 in
an 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 to
semantically detoxify large amounts of high-level waste
from reprocessing by creating a wholly new category of
waste, called “Waste Incidental to Reprocessing.”53 DOE
made this effort explicit by its proposal, as one of its “top
priorities,” 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 reduce
costs 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 only
result in less environmental protection for an important cat-
egory of waste, but could further institutionalize DOE’s
self-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, DOE
could also reduce the overall costs for reprocessing, and,
therefore, reduce the costs for producing more nuclear
weapons material, e.g., plutonium. This DOE redefinition
attempt is being challenged.55
As long as it remains unacknowledged, the conflict be-
tween nonproliferation and nuclear safety is one that will
only grow in intensity. If nuclear technology continues to
52. In particular, neptunium-237 and americium-241 can be extracted
from 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). David
Albright & 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); Linda
Rothstein, Explosive Secrets, Bull. of Atomic Scientists,
Mar./Apr. 1999, available at http://www.thebulletin.org/issues/
1999/ma99/ma99bulletins.html#anchor1217541 (last visited June
3, 2002).
53. See DOE Order 435.1; 64 Fed. Reg. 29393 (July 14, 1999).
54. See Memorandum from Jessie Hill Roberson, Assistant Secretary
for Environmental Management, U.S. DOE, to Director, Office of
Management, 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 Defense
Council v. Abraham, 244 F.3d 742, 31 ELR 20547 (9th Cir. 2001).
This straight-forward lawsuit seeking to compel DOE to abide by the
Nuclear Waste Policy Act could have far-reaching implications.
First, it could halt DOE’s current regime of capping high-level waste
in place after using only readily available late 20th century tank
waste removal technology, and could require investments in a sub-
stantial long-term science and technology program focused on
high-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 its
environmental science and technology program and appointed a new
director 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.
9-2002 NEWS & ANALYSIS
Copyright © 2002 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
be used for power, research and testing is to continue, then
the full life-cycle implications must be considered and
openly 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 research
programs,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 contaminated
with 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 is
associated with nuclear weapons production.59 The U.S.
“transuranic” waste category overlaps significantly with
waste 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 approximately
169,000 m3 of buried transuranic waste.60
The definition of what is and is not a transuranic waste
was an issue in the late 1980s when DOE unsuccessfully
sought 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 disputes
are likely to arise about the definition of transuranic waste in
56. The desirable and somewhat unique characteristic of high enriched
uranium (HEU) fuel is that it provides high flux neutrons, which are
useful in the production of certain research and medical
pharmaceuticals, and for materials testing, e.g., composite plastics
used 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 fuels
with low enriched uranium (LEU), i.e., not weapons-usable,
high-density (HD) nuclear fuel, which provides comparable reactor
performance, 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. It
is sufficient to indicate that they include many leading universities,
including some communities where local residents objected to final
shipments of foreign spent fuel for the phase out program, but who
acceded 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 alpha
emitting wastes containing more than 100 nCi/gram of TRU iso-
topes, i.e., isotopes with an atomic number larger than uranium, or
more 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 fuel
is imbedded in the spent fuel with other fission products and the
original uranium, and is regarded as “high-level waste.” Some
TRU waste is generated in non-weapons research projects, but
they are typically small quantities and often involve rare, non-
plutonium isotopes.
60. U.S. DOE, Summary Data on the Radioactive Waste, Spent
Nuclear Fuel, and Contaminated Media, supra note 28, at
5-3, 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 10
years, and were not available for immediate reuse, as required by
RCRA’s recycling amendment. DOE was storing wastes subject to
the RCRA Land Disposal Restrictions (LDR). These LDR wastes
cannot generally be stored for more than one year. 40 C.F.R.
§268.50. RCRA also prohibits “speculative accumulation” of wastes
under the guise of future recycling. Id. §261.2(c)(4).
32 ELR 11065
at least two areas. First, large quantities of transuranic waste
are buried, and DOE has not yet decided whether this waste
will be exhumed for disposal in the dedicated deep geologic
repository being operated for transuranic waste disposal
known 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 plutonium
scrap material is being considered for direct WIPP disposal
rather than being processed for potential use in nuclear reac-
tors as mixed oxide fuel or solidified with liquid high-level
waste for disposal in another deep geologic repository. If it
is declared a “waste” it is more likely to be disposed of in
WIPP, rather than the other options.
III. Summary of the Past 10 Years in Radioactive
Waste Control
The world of radioactive waste has changed fundamentally
since 1992. The most profound changes resulted from the
end of the Cold War and the changing scope of nuclear
waste. An example of such change is the rethinking in the
United States of plutonium as a liability and a waste instead
of a valuable resource for nuclear weapons, or as in some
countries, as an asset for energy production. Some changes
reflected 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 the
net result has been to make society more or less sustainable.
A. Nuclear Waste Assumptions Are Changed by the End of
the Cold War
Nuclear weapons and the threat of nuclear war cast a
shadow over the last half century that obscured many as-
pects of radioactive waste management. Consequently, the
lifting of that shadow in the wake of the end of the Cold
War63 has helped bring many issues to light with unprece-
dented clarity. Although the Cold War had ended just before
the 1992 Rio Summit,64 the implications of this change had
62. Market pressure to reduce costs, forced the use of new technologies
and operating procedures to significantly reduce low-level waste
generation volume.
63. The popular view is that a nuclear explosion in a major city is less
likely 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 more
likely. See Graham Allison, Fighting Terrorism: Could Worse Be
Yet to Come?, The Economist, Nov. 3, 2001, at 19.
64. The fall of the Berlin Wall on November 9, 1989, is one marker for
the 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 was
identified as September 27, 1991, for purposes of determining
worker 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 of
Soviet nuclear missiles on alert. Hence, the Cold War ended less than
a year before the Rio Summit. See Robert S. Norris, Nuclear Note-
book, Bull. of Atomic Scientists, Jan. 1992, available at
http://www.thebulletin.org/issues/1992/jf92/jf92.notebook.html
(last visited June 3, 2002). See also George H.W. Bush, Address to
the 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).
32 ELR 11066 ENVIRONMENTAL LAW REPORTER
Copyright © 2002 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
not yet permeated the nuclear establishment and its physical
infrastructure.65 But, in the years since the Rio Summit, an
enormous rethinking of the role of nuclear technology and
the management of radioactive waste has begun.
The collapse of the Soviet Union and the reduction of
U.S. and Russian nuclear weapons arsenals66 have clearly
reduced some nuclear weapons dangers,67 but other nuclear
dangers 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 is
widely recognized as a nuclear weapons state,70 and South
Africa71, which has dismantled its weapons. In addition,
Iraq72 and North Korea73 were found to have undertaken sig-
65. One notable exception was then-Sen. Al Gore (D-Tenn.) who had al-
ready recognized some of opportunities from the end of the Cold
War and joined with Senate Armed Services Committee chair, Sam
Nunn (D-Ga.), in early 1992 to launch the Strategic Environmental
Research 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, a
large inactive nuclear stockpile that is not covered in the agreements
remains, with the total U.S. stockpile at approximately 10,000 war-
heads. See Robert S. Norris, Nuclear Notebook: U.S. Nuclear
Forces, 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 from
technical malfunction or miscalculation by U.S. or Russian personnel.
68. In addition to the five declared nuclear powers, Israel, India, and
South Africa were widely regarded as de facto nuclear powers. Israel
has long been widely suspected of possessing nuclear weapons, but
has 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 technician
Mordechai 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 that
it 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 Appeal
Rejected, 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: Inside
the Arsenal: A Special Report: Defector Describes Iraq’s Atom
Bomb Push, N.Y. Times, Aug. 15, 1998, at A4; see also Letter from
Hans Blix, Director-General of the IAEA, to Secretary General of
the United Nations (Oct. 6, 1997) (addressing Fourth Consolidated
Report of the Director-General of the IAEA to the Secretary General,
Under Paragraph 16 of U.N. Resolution 1051), available at
http://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.–Democratic
People’s Republic of Korea Agreed Framework on North Korea’s
Nuclear Program, in Hoover Institution Essays in Public Pol-
icy (1999); Remarks of Ambassador Robert Gallucci, at Carnegie
International Non-Proliferation Conference, on Proliferation Pros-
pects (Mar. 16, 2000); and Joseph Cirincione, Non-Proliferation
Project at the Carnegie Endowment for International Peace, The
Asian Nuclear Chain Reaction, Foreign Pol’y, Spring 2000; Car-
negie Endowment for International Peace (CEIP), Proliferation
Brief, Vol. 3, No. 3 (Mar. 2, 2000).
9-2002
nificant nuclear weapons development programs, and Saudi
ex-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 1995
Nonproliferation Treaty Review and Extension Conference
at the United Nations in New York75 and agreeing to extend
the treaty indefinitely and without conditions.76 This treaty
addressed the use of reprocessing of high-level radioactive
waste 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 that
might 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 waste
control and sustainable development. A few examples of
this relationship in the United States are summarized here
regarding the changing definition of “radioactive waste,”
the potential use of radioactive waste for extracting nu-
clear weapons material, the availability of information
about radioactive waste and materials, the use of surplus
weapons 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 what
we previously thought was a waste to be disposed of versus a
valuable resource to be stockpiled. High-level radioactive
waste from nuclear power may be only a definition away
from being a nuclear weapons material. For example, the
nuclear industry oracle, the Nuclear Energy Institute, regu-
larly asserts that “high-level ‘nuclear waste’ is really used
nuclear fuel.”78 Some activists with the Nuclear Energy In-
stitute and the American Nuclear Society used this semantic
device to promote “recycling” of spent nuclear fuel from the
back 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
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 on
the 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 in
the 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” Is
Really 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-
9-2002 NEWS & ANALYSIS
Copyright © 2002 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
the definition of “waste” is not unique to radioactive
waste.80 For radioactive waste, however, this question has
far-reaching national security and environmental implica-
tions, and has undergone a profound historic shift during the
last 10 years. The declaration of plutonium surpluses by the
United States and Russia since 1992, have added to the al-
ready excessive stockpiles of plutonium.81 Even before this
dramatic expansion of plutonium surpluses, there was no
economic justification for defining spent nuclear fuel as
anything 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 and
logic. Although the United States has announced plans for a
permanent nuclear waste repository in Nevada, some offi-
cials argue that technologies involving reprocessing, not
contemplated in the Nuclear Waste Policy Act,82 may be
preferable 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 and
uranium (U)-235,85 and other materials, e.g., depleted ura-
nium and lithium,86 materials that were painstakingly built
up 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 of
surplus U.S. and Russian weapons-grade plutonium that
have been declared surplus.87 Generally, the U.S. policy is to
nium. In addition to the cost of recovering the plutonium and ura-
nium, the process produces a large amount of liquid high-level
waste, creates substantially more hazardous working conditions for
operations technicians, and contributes to global nuclear prolifera-
tion problems by fostering a market in reprocessed plutonium and
uranium. The recent process of blending down high enriched (weap-
ons-grade) uranium to low enriched (reactor-grade) uranium has
only exacerbated the economic problems of using reprocessing as a
source of nuclear reactor fuel. See William C. Sailor, The Case
Against Reprocessing, in F. for Applied Res. & Pub. Pol’y
(1999); Frank N. von Hippel, Plutonium and Reprocessing of Spent
Nuclear 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), June
16, 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 Appropriations
Subcomm. 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 this
Article. For background, see Arjun Makhijani & Annie
Makhijani, Fissile Materials in a Glass, Darkly (1995),
available at http://www.ieer.org/pubs/fissmats.html (last visited
Apr. 25, 2002); Howard Hu et al., Plutonium (1992); Matthew
Bunn & John P. Holdren, Managing Military Uranium and Pluto-
32 ELR 11067
regard excess plutonium as a waste and marginal energy re-
source, while Russia regards excess plutonium as a valuable
resource that should be used, and reused, for nuclear power
fuel. Despite these different perspectives, the United States
and Russia are both seeking to blend the plutonium into nu-
clear fuel88 and “burn” it in nuclear power plants. Although
this 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” it
with fission products.89 The goal is to meet the “spent fuel
standard,” which was a concept articulated in a seminal re-
port by the National Academy of Sciences to seek to make
the 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 immobilize
plutonium in glass was initiated in 1996, but canceled in
2002 by the Bush Administration.91
Unfortunately, all plutonium is not fully accounted for
and 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 along
with economic and other measures to exert geopolitical in-
fluence. Some of these radioactive material sources, which
are 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 result
of a 1984 Reagan Administration decision to end the track-
ing of plutonium sources, a significant number of “sealed
sources” are unaccounted for after they were provided to
foreign countries, including Columbia, Iran, Pakistan, the
Philippines, and Vietnam.92 This problem of losing radioac-
tive materials further demonstrates the fuzziness of defining
what constitutes radioactive “waste.” In addition, it reflects
the lesser degree of control given to wastes compared to a
fresh, new nuclear resource.93 The material may be techni-
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 plutonium
atoms 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 from
which the plutonium would be as difficult to recover for weapons as
the lager and growing quantity of plutonium in commercial spent
fuel. . . .” 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 rather
than 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 from
Vietnam 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
32 ELR 11068 ENVIRONMENTAL LAW REPORTER
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cally identical, but a semantic or legalistic distinction can
mean that the material becomes an environmental or a na-
tional security risk.
A less well-known “waste/resource” problem, but more
pervasive, is the challenge of dealing with a variety of other
nuclear materials rendered surplus by the end of the Cold
War 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 disclosed
information on the U.S. stockpile of 585,000 metric tons of
depleted uranium. The stockpile was found to be larger than
needed for any demonstrated mission needs, such as tank ar-
mor or penetrator bullets,96 the safety of which has been
questioned.97 Nonetheless, the U.S. government continues
to decline to classify depleted uranium as a waste, despite le-
gal challenges by the state of Ohio. As a result of a bipartisan
directive from the U.S. Congress, with strong support from
labor unions,98 the United States is now building facilities99
to convert the long-stored depleted uranium100 to a form
suitable for storage or disposal. Part of DOE’s recalcitrance
in reclassifying depleted uranium as a “waste” is the hope by
many within DOE that depleted uranium can be used as a
source of fissile uranium for nuclear power. The technology
of as waste was not accounted for with the same rigor accorded to
plutonium still considered part of the production system using the
Nuclear Materials Management and Safeguards System. Id. at
app. 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, with
0.71% U-235, which is extracted through the enrichment process to
increased the relative proportion of U-238 to 3 to 4% for nuclear
power plants fuel and more than 20%, and often more than 90% (ex-
act enrichment levels are classified), for weapons grade and naval
nuclear 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 armor
plating, and defensively for plating on U.S. tanks such as the M1A-1.
Limited amounts of depleted uranium were used for bullet and armor
production at the Special Manufacturer Capability (SMC) facility at
the Idaho National Engineering Laboratory. This enterprise was
classified 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 of
debate 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’s
Radioactive Bullet: An Investigative Report, The Nation, Oct. 21,
1996; and Bill Mesler, Pentagon Poison: The Great Radioactive
Ammo Cover-Up, The Nation, May 26, 1997, or others who assert
depleted 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 of
whether discharging the depleted uranium from an aircraft during a
training exercise, e.g., in the Ozark Lakes of Missouri or the Nellis
range in Nevada, is radioactive waste disposal.
98. The Oil, Chemical and Atomic Workers Union, later consolidated
with the Paper and Allied Chemical Employees, faced the prospect
of massive job losses after the privatized DOE enrichment opera-
tion—the U.S. Enrichment Corporation (USEC)—announced its
plan to shut down the Portsmouth plant in Ohio, and leave only the
Paducah plant in Kentucky operating.
99. The fiscal year (FY) 2003 budget request included funding for only
one facility, although strong congressional support may direct that
the originally planned two facilities (Ohio and Kentucky) be built.
100. The depleted uranium had long been stored as uranium hexafluoride
outdoors with no cover in Kentucky, Ohio, and Tennessee outside in
tens of thousands of 10- and 14-ton steel cylinders, more than 17,000
were found by DOE to be corroded. U.S. DOE, Taking Stock, su-
pra note 86, at 150.
9-2002
for potentially spinning this nuclear straw into “nuclear
gold” 101 is the Advanced Laser Isotope Separation
(AVLIS), research for which was canceled soon after
DOE’s enrichment enterprise was privatized after decades
of government-funded research. Nonetheless, the prospects
for 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 for
AVLIS, and the related Special Isotope Separation, could be
used to extract weapons-usable fissile materials102 and
could be easier to conceal from verification than the large
industrial-scale reprocessing facilities used historically to
separate weapons materials. Continuing to maintain the
large stockpiles of depleted uranium (dU), preserves a po-
tential justification for AVLIS and helps keep alive the
hopes of many that some form of laser isotope separation
technology 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 operation
of the processing “canyons” at the Savannah River Site in
South Carolina104 in order to “stabilize” spent nuclear fuel
and other irradiated materials, e.g., Mark-31 plutonium pro-
duction targets, resulting in the purification of additional
quantities of weapons-grade plutonium. The “waste” spent
fuel is converted into the national security material of puri-
fied plutonium, which requires extraordinary safeguards
and 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, converting
spent 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
101. Despite decades of government investment in the technology, the
high costs of constructing and operating an AVLIS facility, com-
bined with the unproven experimental nature of the project, led to the
cancellation of the program soon after the private entity, USEC, took
control of the enterprise.
102. The essential technology for both AVLIS and SIS is the vaporization
of 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 desired
isotope to be collected magnetically.
103. The potential high purification levels achievable with laser isotope
separation could be used to produce relatively pure, weapons-usable
U-235 or Pu-239, even from stocks of otherwise unusable impure
uranium and plutonium, that might be regarded as “waste.”
104. Reprocessing facilities were also operated in Idaho at the Idaho
Chemical Processing Plant and the Idaho Nuclear Technology Cen-
ter at the Idaho National Engineering Laboratory; in Washington at
the Hanford Reservation PUREX and T-Plants; and in New York at
West Valley, south of Buffalo. Commercial reprocessing plants built
in Morris, Illinois, and Barnwell, South Carolina, never operated.
105. The need to stabilize the spent fuel and surplus plutonium was
clearly 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 and
urgency 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,
9-2002 NEWS & ANALYSIS
Copyright © 2002 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
DOE continues to operate and upgrade the Savannah
River Site reprocessing canyons using funding from the En-
vironmental Management budget,107 producing significant
quantities of weapons-grade plutonium as well as a variety
of 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 for
largely political reasons.109 This “stabilization” reprocess-
ing results not only in production of purified weapons mate-
rial, but generates additional liquid high-level waste, which
is 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 storage
tanks, which have already exceeded their design life.110
The government’s strategy for managing spent nuclear
fuel supports further reprocessing operations.111 In the wake
of 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 according
to fuel type, e.g., aluminum clad versus, steel clad, etc.. Om-
inously, DOE decided to ship spent nuclear fuel to sites that
are best suited to perform reprocessing using existing equip-
ment.114 In 1996, DOE indicated that it would begin devel-
U.S. High-Level Waste Management Policy and the Reprocessing
Option (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 Cleaning
Up Nuclear Weapons Plants, Chem. & Engineering News, July
22, 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 Senate
Armed Services Committee, to Energy Secretary Hazel O’Leary
(Nov. 16, 1995) (on file with author). These letters were coordinated
by the two offices, and provided no new technical information, but
strongly support retaining jobs for southern South Carolina govern-
ment nuclear contractor workers. A detailed technical review by
DOE found these wastes posed no risk warranting reprocessing.
There was a list of materials “at risk” and some “not at risk.” The
M-16/22’s were reprocessed even though they were identified as not
at risk, essentially due to pressure from Sen. Strom Thurmond.
(R-S.C.) to provide additional federal jobs in South Carolina.
110. U.S. DOE, Summary Data on the Radioactive Waste, Spent
Nuclear Fuel, and Contaminated Media, supra note 28, at
4-23.
111. Prior to May 2001, the U.S. policy was to consider reprocessing only
for government -owned spent fuel, and all commercial high-level
waste was to be disposed of it in a geologic repository directly. A
Bush 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 fuel
and investing in reprocessing technologies, although the FY 2003
budget 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 intervention
by Gov. Cecil Andrus (D-Idaho), resulting in an injunction on Au-
gust 9, 1993, preventing additional spent nuclear fuel shipments to
Idaho.
114. U.S. DOE, Programmatic Spent Nuclear Fuel Management
and Idaho National Engineering Laboratory Environmen-
tal Restoration and Waste Management Programs Final
32 ELR 11069
opment of an alternative technology to replace reprocessing
for stabilizing some spent nuclear fuel,115 but has regularly
underfunded 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 spent
nuclear fuel to weapons material and liquid high-level
waste. At DOE’s Hanford site, the decisions to keep the
PUREX reprocessing facility shut down stranded spent
nuclear fuel at Hanford. Because the traditional method of
managing spent nuclear fuel (reprocessing in PUREX)
was unavailable, DOE developed and used an alternative
technology.116
A classic case of nuclear waste controls overlapping with
nuclear weapons nonproliferation efforts is the program to
return foreign spent fuel to the United States. This program
seeks to avert nuclear proliferation by accepting spent fuel
in 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 virtually
ceased 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 foreign
spent fuel to DOE facilities in the United States. Despite ef-
forts to characterize the shipment of spent nuclear fuel into
U.S. ports as a nonproliferation program, public perception
was that this is dangerous “nuclear waste” and the United
States should not be the “dumping ground,” or at a mini-
mum that it should not be shipped in through their local
port.119 When the United States initially shipped uranium
Environmental Impact Statement (1995) (DOE/EIS-0203-F)
(known as Programmatic Spent Nuclear Fuel and INEL EIS). See
also the records of decision for that EIS, 60 Fed. Reg. 28680 (June 1,
1995) and Programmatic Spent Nuclear Fuel Management and
Idaho National Engineering Laboratory Environmental Restoration
and Waste Management Programs, 61 Fed. Reg. 9441 (Mar. 8, 1996).
115. On February 23, 1996, EPA published a Notice of Availability of the
final EIS. U.S. Final Environmental Impact Statement on a Proposed
Nuclear 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 prepare
spent fuel stored in water pools at the K Basins in the 100 Area for
storage in a retrofitted facility in the 200 Area.
117. During the Cold War, the United States had shipped uranium to more
than 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 only
did this relieve the participating countries of the burden of storing
spent fuel, but it also helped control the spread of nuclear weapons
materials. Unlike nuclear power plant fuel, this fuel contained high
enriched, or weapons-grade uranium, which could be extracted
through 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 of
returning nuclear material to the United States in an ostensible
nonproliferation effort but then reprocessing the spent nuclear fuel
to extract weapons-grade uranium for use in the U.S. nuclear weap-
ons program. This problem ended in 1992 with the U.S. decision to
phase 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 their
support and acceptance because their first priority was their market-
32 ELR 11070 ENVIRONMENTAL LAW REPORTER
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and fuel overseas during the Cold War, there was little con-
sideration given to the potential problems of returning and
managing the resulting spent fuel.
B. Commercial Nuclear Waste Eclipsed by Nuclear
Weapons Facilities’ Waste
To the extent that the 1992 Rio Summit addressed radioac-
tive waste, it focused on commercial nuclear waste, which
included waste from nuclear power plants and medical labo-
ratories. This focus reflected the public and political lack of
awareness 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 of
secrecy began to lift in the late 1980s, spurred by safety
problems in the facilities, congressional investigations, and
the newspaper coverage of these problems. The stage was
set by private publications that began to pull the cover off of
nuclear weapons activities.121 From 1988-1989, a team of
reporters from the New York Times published almost daily
articles about the environmental and safety problems with
the nation’s aging nuclear weapons facilities.122 DOE,
which is responsible for managing the U.S. nuclear weapons
complex, quietly launched a series of environmental sur-
veys between 1986 and 1989 to catalogue the environmental
problems, followed by a more public “Tiger Teams” investi-
gations. In addition, the Administration of President George
H.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” press
conferences held by Energy Secretary Hazel O’Leary, be-
ginning on December 7, 1993.123 DOE also published a se-
ing interests rather than community education and nonproliferation.
There were also many older residents who were surprised to learn
that virtually all of the uranium proposed for return through the port
had secretly been originally shipped overseas through California
ports 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 it
to 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: The
Know-How Is to Ask Why, The Progressive, Nov. 1979, at 3, avail-
able at http://www.progressive.org/pdf/1179.pdf (last visited June
3, 2002).
122. William Lanouette, Tritium and the Times: How the Nuclear Weap-
ons-Production Scandal Became a National Story (JFK School of
Government, 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 began
in the 1940s, including the use of retarded children and minority and
indigent 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 and
was 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 of
this issue.
9-2002
ries of books and reports that provided an unprecedented
and candid account of the nuclear weapons complex and its
environmental and safety problems.124 By the end of the
1990s, 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 environmental
cleanup requirements affecting budgets in the 1990s and the
estimated costs more than doubled.125 In 1988, DOE’s first
cleanup estimate was approximately $85 billion,126 which
placed government cleanup costs on par with the roughly
$100 billion estimate for cleanup of commercial nuclear
power plants. DOE’s initial cost projection would inevitably
rise, however, because embedded in the 1988 estimate was
the assumption that most nuclear weapons facilities would
continue operating and would not require much clean-
up—one of many assumptions that changed in the wake of
the end of the Cold War. DOE later estimated the govern-
ment’s total environmental liability for radioactive waste
cleanup at approximately $230 billion.127 Combined with a
drumbeat of environmental horror stories and new DOE stud-
ies,128 these cost estimates had the effect of sweeping back a
curtain of secrecy revealing a landscape of radioactive waste
problems. These newly revealed problems were more than
twice 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—larger
than 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 the
largest single environmental program in the world.
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, supra
note 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 when
environmental 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 maintenance
rather 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 note
124. This estimate was initially questioned, but was subsequently
replicated, 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’s
Consolidated 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 of
commercial 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).
9-2002 NEWS & ANALYSIS
Copyright © 2002 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
The increasing openness since 1992 has not only been the
most 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 in
a variety of decisions that were different than they might
have otherwise have been without it. At the Fernald Site in
Ohio, for example, cleanup costs were reduced by several
billion dollars as a result of local community involvement in
the cleanup decisionmaking process. A citizens’ task force
recommended that most of the waste at Fernald be contained
on-site in a newly constructed disposal cell, while shipping
only 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—the
erstwhile disposal site for much of the radioactive waste
from the Fernald Site. Similar involvement of state regula-
tors with unprecedented amounts of information sharing re-
sulted in a relatively smooth decisionmaking process for
treatment of mixed low-level radioactive waste, through a
process managed by the National Governors Association.131
By contrast, commercial low-level waste disposal efforts
have been plagued by a lack of trust among participants and
ineffective public participation that has often involved a
large element of public relations.132 The fundamental differ-
ence is whether communications involves a legitimate ex-
change of information in which proposed decisions are truly
changed by new information and perspectives provided by
the public, or whether the information flow is simply one
way, as in public relations.
Regrettably, some information was released too late. For
example, information on the size of the U.S. plutonium
stockpile was released too late to prevent the squandering of
more than $500 million from 1981 to 1991 on a project to
produce weapons-grade plutonium from spent fuel using a
new laser isotope separation technology, known as Special
Isotope Separation. This plant was slated for construction in
Idaho and was estimated to cost more than $3 billion to in-
crease stockpiles of plutonium, under the pretense that the
United 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 production
based on need. In 1993, the U.S. plutonium inventory was
declassified, revealing that the United States had possessed
more than enough plutonium (approximately 100 metric
tons) to support not only the current arsenal, but also any
reasonably foreseeable stockpile scenario. This declassifi-
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-time
activist, Lisa Crawford, who had formed the Fernald Residents for
Environmental 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 it
avoided the confrontation some feared would result from the enact-
ment of the Federal Facilities Compliance Act in 1992. See Federal
Facilities 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) (EPA
Grant Number: R823191).
32 ELR 11071
cation was too late to prevent the frivolous expenditure of
hundreds 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 by
press stories to disclose its historic use of “recycled ura-
nium” that contained plutonium and other fission products
extracted from spent nuclear fuel.133 Although this disclo-
sure was too late to allow workers to protect themselves, it
was critical in congressional support for a workers compen-
sation bill134 and is useful for planning environmental
cleanup 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 nuclear
power plants have occurred in the United States since the
Rio 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 Tennessee
Valley Authority (a government-subsidized public power
agency) began construction on this plant in December 1972.
The most recent construction of a nuclear power plant in the
United States began in March 1977 and started commercial
operations 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 years
later, 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 at
the summit in South Africa in September.
IV. Measuring Progress Toward Sustainability
Despite the relatively brief treatment given to radioactive
waste control by the Rio Summit, the Rio principles offer
several useful criteria for measuring progress toward
sustainability 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-
133. James R. Carroll & James Malone, Cold War Poison: The Paducah
Legacy, The Courier-Journal, June 25, 2000, at A1; and Joby
Warrick, 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, at
http://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 environmental
problems 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 and
Investigations Subcommittee, Energy and Commerce Committee,
Representative Gore organized the first set of hearings devoted to
these issues as early as 1983 dealing with dumping of mercury into
Tennessee waterways. See The Impact of the Mercury Losses in Oak
Ridge, Hearings Before the U.S. House of Representatives Science
and Technology Committee, Subcommittees on Oversight and Inves-
tigations and Subcommittee on Energy Research and Development
(July 11, 1983).
32 ELR 11072 ENVIRONMENTAL LAW REPORTER 9-2002
Copyright © 2002 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
view various areas of radioactive waste control to assess The principles articulated in the Rio Declaration, how-
whether the United States has moved toward or away from ever, offer a number of useful criteria for measuring U.S.
sustainability as measured by the Rio principles. progress on sustainability in radioactive waste control.
Of the 27 principles identified by the Rio Declaration, 5
A. Radioactive Waste Control in the Rio Declaration and seem particularly relevant to the issue of radioactive
Agenda 21 waste control:
1. Principle 3—Intergenerational Impacts. “The
Of the two principle documents arising from the 1992 Rio
right to development must be fulfilled so as to equi-
Summit—the Rio Declaration and Agenda 21—the issue of
tably meet developmental and environmental
radioactive waste control was addressed explicitly only
needs of present and future generations.”141
briefly in a three-page chapter in Agenda 21.138 The Agenda
2. Principle 10—Openness and Public Participa-
21 chapter, entitled “Safe And Environmentally Sound
tion. “Environmental issues are best handled with
Management of Radioactive Wastes,” was divided into two
the participation of all concerned citizens, at the
major sections: (1) management; and (2) international and
relevant level. At the national level, each individual
regional cooperation and coordination activities.139 The
shall have appropriate access to information con-
management activities agreed upon in Agenda 21 include
cerning the environment that is held by public au-
worthy areas such as waste minimization, developing safety
thorities, including information on hazardous ma-
standards, supporting technology transfer, and participating
terials and activities in their communities.”142
in planning, including emergency planning. The interna-
3. Principle 13—Worker Compensation. “States
tional cooperation and coordination activities include pre-
shall develop national law regarding liability and
venting transboundary impacts, supporting a permanent ban
compensation for the victims of pollution and
on ocean disposal of low-level wastes140 avoiding storage
other environmental damage. States shall also co-
and disposal of waste near oceans, and abiding by interna-
operate in an expeditious and more determined
tional waste transfer bans and other agreements. Generally,
manner to develop further international law re-
Agenda 21 focused on a limited number of cross-boundary
garding liability and compensation for adverse ef-
issues, e.g., protection of oceans, primarily oriented toward
fects of environmental damage caused by activi-
commercial nuclear waste issues. The United States has
ties within their jurisdiction or control to areas be-
largely supported the broad objectives in Agenda 21.
yond their jurisdiction.”143
Clearly, radioactive waste control was not a primary
4. Principle 15—Precautionary Principle. “In or-
focus of either of the two principle documents arising
der to protect the environment, the precautionary
from the Rio Summit. Because there are few specifics re-
approach shall be widely applied by States accord-
garding radioactive waste control in Agenda 21, it is use-
ing to their capabilities. Where there are threats of
ful to identify significant radioactive waste issues that
serious or irreversible damage, lack of full scien-
were not included. For example, Agenda 21 does not
tific certainty shall not be used as a reason for post-
mention nuclear weapons—either the waste implications
poning cost-effective measures to prevent environ-
of weapons production, e.g., transuranic waste, or the po-
mental degradation.”144
tential weapons implications of waste management deci-
5. Principle 16—Internalize Costs and Use “Pol-
sions, e.g., extraction of plutonium form spent nuclear
luter-Pays” Principle. “National authorities
fuel. Given the controversial nature of these issues, it is
should endeavour to promote the internalization
understandable that the nonproliferation implications of
of environmental costs and the use of economic
nuclear waste and the waste produced by nuclear weap-
instruments, taking into account the approach
ons production operations were not raised in the 1992 Rio
that the polluter should, in principle, bear the cost
Summit and apparently will not be addressed officially at
of pollution, with due regard to the public inter-
the 2002 summit in Johannesburg. These are sensitive is-
est and without distorting international trade
sues in domestic debates; and there is typically more re-
and investment.” 145
luctance to discuss these issues in an international forum
where it could affect sovereign national security inter- The question of how well the United States has done in abid-
ests. The changes in the global perspective on radioactive ing by and promoting Agenda 21 and these principles is ad-
wastes and materials—such as the changed scope of what dressed in the next section.
is considered “waste” and the emergence of the nuclear
weapons-derived waste problems—might have resulted B. U.S. Progress and Backsliding on Rio Principles and
in a different focus if the same discussion were to occur Agenda 21 Activities
today. Any reassessment of sustainability in radioactive
waste control should begin with the objective. The objec- Although radioactive waste control did not receive exten-
tive of the radioactive waste chapter in Agenda 21 men- sive consideration in the Rio Summit and Agenda 21, the
tions only “protecting human health and the environ- consensus activities in Agenda 21 and many of the princi-
ment,” and does not identify prevention of the prolifera- ples articulated by the Rio Declaration provide useful cross-
tion of nuclear weapons materials as a related objective of
sound radioactive waste management. 141. Rio Declaration, supra note 11, princ. 3.
142. Id. princ. 10.
138. Agenda 21, supra note 23, ¶ 22.
143. Id. princ. 13.
139. Id. 144. Id. princ. 15.
140. From the temporary ban in the London Dumping Convention. 145. Id. princ. 16.
9-2002 NEWS & ANALYSIS
Copyright © 2002 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
cutting measures for evaluating the performance of the
United States in the past decade. In addition to using these
cross-cutting measures, it is also useful to consider the prog-
ress or backsliding in policies and management actions for
each waste type, which is addressed in Section V below.
During the decade since the Rio Summit, the United
States participated in virtually all of the activities identified
in Agenda 21 regarding radioactive waste control, and many
of the principles in the Rio Declaration have been applied in
U.S. radioactive waste control.146 Nonetheless, there have
also been increasingly serious problems with sustainability
in nuclear waste management, and many of the practices
that have moved the United States ahead in sustainability of
radioactive waste control have been reversed or halted by
the 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 transfer
activities are considered here.
Waste minimization, if pursued vigorously, is among the
most useful and cost-effective environmental management
activities. Unfortunately, the brief discussion of nuclear
waste 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 be
reduced, 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 when
there is a resurgence of the waste-generating operation, e.g.,
after a recession ends or an arms race restarts, the same
waste problems return.
The United States has successfully reduced the amount
of radioactive waste produced in significant areas, such
as commercial low-level waste and high-level wastes
from weapons production, but the different methods and
causes 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 The
amount of high-level waste from nuclear weapons mate-
rial production, however, was reduced largely by DOE’s
decreased level of nuclear weapons production, not more
efficient operations.
Neither of the activities resulted from a deliberate effort
to pursue waste minimization as a goal because of its envi-
ronmental benefits. As discussed below, low-level waste
generation was cut because of economic pressures. High-
level waste generation dropped because the end of the Cold
War caused an end to nuclear weapons materials production,
which cut production reactor and reprocessing operations.
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 the
Rio 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.
32 ELR 11073
The United States has generally supported technology
transfer in radioactive waste control. For example, the
United States has provided significant support to efforts to
stabilize the failing sarcophagus at the Chornobyl reactor in
the Ukraine. This effort has also provided an opportunity for
U.S. technology developers to demonstrate there devices,
such as the “Houdini” robot that can lower into a confined
space like a tank or rector vessel, and then unfolds tractors
treads and manipulator arms. However, there are troubling
aspects that have not been fully resolved. Some technolo-
gies promoted for radioactive waste control may present
significant nuclear proliferation concerns.
An example of such concerns can be found at the
Argonne West Facility in Idaho, where DOE has spent mil-
lions of dollars to develop a new reprocessing technology at
the Argonne West facility in Idaho. The technology, called
pyroprocessing,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 supplies
of plutonium and then “recycle” the waste into new fuel.
Unfortunately, as with any nuclear waste reprocessing, the
same technology to recover plutonium or uranium for new
fuel can be used to extract material for nuclear weapons, and
could present national security concerns.150 The United
States has engaged in technology transfer programs with
Asian countries to explore their possible use of this emerg-
ing technology. The prospect of exporting this technology
with its potential nuclear proliferation implications has
raised concerns among some congressmen and NGOs. Sim-
ilarly, the United States has cooperated with the Japanese
government to develop a “radioactive waste” processing
technology known as “TRUMP-S,” which was initially de-
veloped at the Santa Susanna Field Laboratory in the hills
near Los Angeles in Ventura County, and later moved to the
relatively more remote University of Missouri at Rolla.
Similar concerns were raised about the proliferation risk as-
sociated with this attempt to develop a radioactive waste
processing technology.
The United States has still not fully reconciled its desire
to encourage economic development and transfer of radio-
active waste control technologies, and the need to control
potential proliferation risks, particularly in a world where
competing countries may not have the same scruples about
technology transfer issues. Future consideration of the role
of technology transfer in sustainable development should
address this potential conflict with national security issues.
148. Other names used to refer to the same technology have included
“electrometallurgical refining,” “electrometallurgical treatment,” or
simply the “back end” of the integral fast reactor. DOE and the
Argonne National Laboratory West staff have sought to use these se-
mantic changes to mask the same technology against shifting public
and 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 on
newly mined uranium. It uses “fast” neutrons to “breed” new pluto-
nium, so that there is more fissile plutonium “fuel” produced after
operation than the amount of fuel consumed. Reprocessing is then
use 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.
32 ELR 11074 ENVIRONMENTAL LAW REPORTER
Copyright © 2002 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
2. International Cooperation and Coordination
U.S. support for international cooperation and coordina-
tion—among activities identified in Agenda 21—has been
uneven. Generally, the United States has provided signifi-
cant and broad support for international and regional coop-
eration and coordination. However, this support has been
uneven, and self-interested. A couple of examples help il-
lustrate the point.
In North Korea, the United States provided substantial
support for improving management of nuclear materials.
This support occurred as a result of an agreement between
the United States and North Korea, under which North Ko-
rea would cease its efforts to develop nuclear weapons. In
return, the United States helped stabilize North Korean nu-
clear fuel, which could have been converted to nuclear
weapons material, and helped replace a North Korean nu-
clear reactor that presented a significant proliferation risk
with another rector that had a more proliferation resistant
design. Serious regional problems remain with nuclear
nonproliferation, but, in this instance, the United States ad-
dressed nuclear waste issues in North Korea when they
threatened U.S security interests, not local Korean environ-
mental contamination.151
In Estonia, the United States provided at least $2 million
in technical assistance to stabilize a double reactor subma-
rine propulsion prototype unit near Paldiski.152 Conse-
quently, this stabilization facilitated the Russian removal of
weapons-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 environmental
cleanup and improve security at the facility.
These examples illustrate U.S. support for international
cooperation when it coincides with U.S. security and com-
mercial interests. Conditioning U.S. support in this manner
might be seen by some as “anti-globalist” because it fails to
promote the broader common good. In the case of nuclear
waste control, however, limiting broad international support
can be seen as prudent. If the United States were to provide
unlimited international support to developing countries for
nuclear waste control, it could also be viewed as a subsidy to
help enable nuclear technologies where normal institutional
systems and market forces cannot normally support them.
The International Cooperation and Development element
of Agenda 21 is comparable to a section of the Treaty on the
Non-Proliferation of Nuclear Weapons that requires that
countries “in a position to do so shall also cooperate in con-
tributing alone or together with other States or international
organizations to the further development of the applications
of nuclear energy for peaceful purposes.”153 Probably the
most significant technology shared internationally is nu-
clear reactor technology. The critical concern is that stan-
dard reactors produce plutonium, which, if extracted, can be
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. at
173.
9-2002
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 plutonium
through reprocessing.154 One pioneering and long-time nu-
clear engineer, Alvin Radkowsky, said: “If we don’t put a
stop to conventional uranium cores now, nuclear terror will
ensue, and the use of legitimate nuclear energy will be
barred worldwide.”155 To avoid this risk of nuclear weapons
material proliferation from nuclear power, many observers
have promoted the development of proliferation resistant
fuels and reactors designs.156 Skeptics assert that even with
new fuel and reactor designs, residual plutonium and other
fissile materials, such as U-233, still present a proliferation
risk.157 A useful context to view this debate may be one of
relative ease of proliferation: an intact warhead presents a
greater risk than purified nuclear materials, which present a
greater risk than spent nuclear fuel, which can serve as a
source of purified nuclear materials, which is more readily
obtained 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 issues
of protecting weapons usable fissile materials and the safety
of operational nuclear reactors, e.g., Chernobyl in the
Ukraine. The importance of nuclear waste as a potential
source 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 Rio
Declaration, the U.S. experience since 1992 provides both
hope for greater sustainability, and significant cause for
concern about backsliding on previous efforts toward
sustainability. This Article cannot presume to cover all of
the principles articulated by the Rio Summit, but 5 of the 27
Rio 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 many
hazardous wastes, treatment can reduce their persistence.
154. Seth Grae, The Nuclear Non-Proliferation Treaty’s Obligation to
Transfer Peaceful Nuclear Energy Technology: One Proposal of a
Technology, 1 Fordham Int’l L.J. 5 (1996).
155. Adam Bernstein, Alvin Radkowsky, 86, Dies; Pioneer of Nuclear
Energy, 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 & Harold
A. Feiveson, How to Expand Nuclear Power Without Proliferation,
Bull. of Atomic Scientists, Apr. 1990, available at
http://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 Science
and Technology Policy, Executive Office of the President of the
United States).
157. Arjun Makhijani, Nuclear Power: No Solution to Global Climate
Change, 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).
9-2002 NEWS & ANALYSIS
Copyright © 2002 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
For even global environmental impacts, e.g., climate
change, reversing trends are possible, even if they require
significant technical, economic, and political effort. How-
ever, the persistence of radioactive waste is dictated by the
immutable laws of physics, which reliably predict a fixed
virtually immutable half-life158 for each radionuclide. Many
radioactive 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 few
seconds of time saved using “conveniences” like electric
can openers, for millions of years of commitment to safe-
guarding the resulting nuclear waste.159
U.S. controls on most radioactive waste generally contain
explicit, 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 controls
only be considered a part of the protection for 100 years.160
These periods of time are longer than the periods of time that
govern 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 science
fiction-like markers system. 162 In the wake of the large
amount 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 of
sites, not merely a couple of geologic repositories. 163
158. The time in which one-half the atoms of a particular radionuclide
disintegrate into another nuclear form. For example, Pu-238 has a
half-life of 88 years; therefore after 88 years one-half the initial
quantity 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 decays
to thorium (Th)-230, which has a half-life of 75,400 years; Th-230
decays 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 production
and 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 You
Listening?, 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 of
Passive 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 note
124; U.S. DOE, From Cleanup to Stewardship, supra note 124.
32 ELR 11075
However, neither a complete understanding of the implica-
tions, nor a mature ability to deal with this recognition, have
yet to evolve.164
The IAEA has begun an effort to address the need for
long-term records at radioactive waste burial sites.165 These
initial recordkeeping efforts do address a number of critical
issues that will be necessary for information about radioac-
tive waste to be passed on effectively from generation to
generation, including nontechnical issues like public access
and the role of local governments.166
Principle 10—Openness and Public Participation
During the past 10 years, significant progress has been made
in 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 Order
signed in early 1993 that required federal facilities to com-
ply with the “Right to Know” provisions of Superfund that
they 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 has
been useful in promoting waste minimization practices at
federal facilities.
The most dramatic changes in “openness” resulted from
the initiative launched by then-Secretary of Energy
O’Leary.167 The relatively open atmosphere regarding gov-
ernment information about radioactive waste has waned
significantly since that initial effort.168 It remains unclear
whether even legally required information about radioac-
tive waste, such as draft EIS for public comment, will be
made available.169 The wholesale removal of radioactive
waste information from web sites began after President
George 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
164. John Applegate & Stephen Dycus, Institutional Controls or Em-
peror’s Clothes? Long-Term Stewardship of the Nuclear Weapons
Complex, 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-
co rd s f o r Ra d i o a ct i ve W a s t e D i s p osal ( 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 Waste
Eclipsed 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 made
available. See Natural Resources Defense Council v. Richardson
et 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 since
2001, DOE has failed to update the data as required by the settle-
ment agreement.
170. Costner, supra note 168.
32 ELR 11076 ENVIRONMENTAL LAW REPORTER
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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 and
compensation 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 caused
by activities within their jurisdiction or control to areas
beyond their jurisdiction.172
Despite widespread popular attention to environmental
problems, workers are, in fact, most at risk of exposure and
adverse health effects from radioactive wastes.173 For de-
cades, however, when workers sought to draw attention to
health 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 that
caused 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 and
safety.175 For government workers, accountability has been
severely limited because DOE is self-regulating with regard
to worker health and safety, and the agency and its contrac-
tors have operated behind a veil of secrecy throughout the
Cold War. The government routinely sought to cover up
harm to workers, justifying it on the grounds that telling
workers about their risks would lead to embarrassment, un-
ion demands for hazardous duty pay, and increased numbers
of worker compensation cases.176
171. Memorandum from Andrew H. Card Jr., Assistant to the President
and Chief of Staff, to the Heads of Executive Departments and
Agencies (Mar. 19, 2002).
172. Rio Declaration, supra note 11, princ. 13
173. Worker vulnerability is a function of proximity, which is one of
the three fundamental principles of health physics protection
from ionizing radiation: (1) distance from a source, (2) shielding,
and (3) duration.
174. The blatant disregard for worker health and safety was probably
more severe and lasted longer at DOE facilities than private nuclear
facilities perhaps because of the continued inadequacy of independ-
ent external regulation at DOE facilities. Also, DOE facilities have
often 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 Environmental
Problems 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 from
1981-1984: “There was a military culture throughout the agency, a
bunker mentality. People saw their role as meeting the requirements
for defense. Other things, of necessity, came second, including envi-
ronmental, safety and health programs. Every penny that went to
safety 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 the
AEC 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 potential
process hazards to employees are definitely prejudicial to the
best interests of the government. Every such release is re-
flected in an increase in insurance claims, increased difficulty
in labor relations and adverse public sentiment.
9-2002
For example, between 1953-1977, the Paducah Gaseous
Diffusion 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 more
hazardous isotopes until the mid-1990s—almost 40 years
after workers were exposed, and only after these same iso-
topes were found in groundwater (neptunium-237 is 2,000
times more radioactive per unit of mass than uranium). A
1960 Atomic Energy Commission (AEC) memo reported
that, “there are possibly 300 people at Paducah who should
be checked for neptunium, but they [the AEC contractor] are
hesitant 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. A
1949 AEC memo on gamma radiation exposure to Los
Alamos workers’ blood stated:
We can see the possibility of a shattering effect on the
morale of employees if they become aware that there
were substantial reasons to question the standards of
safety under which they were working. In the hands of
labor 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 the
number of claims of occupational injury due to radiation
and place a powerful weapon in the hands of a plaintiff’s
attorney.178
Since 1992, however, two events improved the situation
for individual employees, but the overall problem of DOE
self-regulation remains intractable. First, a knowledgeable
DOE analyst and critic from the congressional Office of
Technology 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 within
DOE, including strengthening DOE’s use of internal over-
sight and penalties against nonconforming contractors re-
garding occupational safety and health issues.180 She led an
initiative 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.
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 the
House 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 as
retribution for criticism by OTA of President Ronald Reagan’s and
President George H.W. Bush’s policies, including Star Wars and the
radioactive waste problems in the nations nuclear weapons facilities.
Archive OTA publications remain available at, OTA Publications, at
http://www.wws.princeton.edu/~ota/ns20/year_f.html (last visited
Apr. 26, 2002), and remain a unique and useful source of technical
policy information.
180. See U.S. DOE, Price-Anderson Enforcement Program, at
http://www.eh.doe.gov/enforce/ (last visited June 3, 2002).
181. See U.S. DOE, ISM Resources, at http://www.eh.doe.gov/ism/ (last
visited June 3, 2002).
9-2002 NEWS & ANALYSIS
Copyright © 2002 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
Second, a series of scandals and coverups continued to
highlight the problems of worker exposure to radioactive
wastes and materials at DOE facilities. At the Mound facil-
ity in Ohio, a lawsuit by the Oil, Chemical, and Atomic
Workers Union182 publicly revealed that DOE had failed to
monitor radiation worker exposures when bioassay samples
had been left unanalyzed for three years. Litigation at the
Fernald, 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 to
the 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 in
March 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 workers
in the private beryllium industry were being overexposed to
the hard, lightweight metal, which produces a toxic dust
when 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 defense
establishment. Protection of the industry has reached all the
way to the White House cabinet, where in the 1970s Presi-
dent Jimmy Carter’s U.S. Department of Defense and DOE
secretaries helped kill a safety plan. According to a letter
U.S. Energy Secretary James Schlesinger wrote to two cabi-
net members at the time, they feared the plan would cut off
beryllium supplies for weapons, and that would “signifi-
cantly and adversely affect our national defense.”
Meanwhile workers with beryllium disease were denied
state workers compensation due to legal obstacles that re-
quired workers to file workers compensation claims within
300 weeks of their last injurious exposure.185 Chronic beryl-
lium disease has a latency of 10 years or more, and workers
that could not prove exposure within 300 weeks were unable
to sue their employers directly under workers compensation
or any other legal doctrine because workers compensation is
the “exclusive remedy” for workplace illness, unless a sick
worker can show the employer intended to harm them.
An enterprising young USA Today reporter named Peter
Eisler reconstructed the story of worker exposures at sites
that—unlike Hanford, Oak Ridge, or Los Alamos—were
owned not by the government, but by private vendors. These
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 Chose
Weapons Over Workers, Toledo Blade (Special Report), avail-
able at http://www.toledoblade.com/apps/pbcs.dll/artikkel?Kategori
=SRDEADLY01&Dato=19990328&Lopenr=9999099&Ref=AR
Also (last visited June 3, 2002). See also earlier reports on extent of
overexposure to beryllium in AEC reports produced by the Health
and 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) (providing
Compensation to America’s Nuclear Weapons Workers).
32 ELR 11077
workers were exposed to high levels of radioactive materi-
als, such as thorium and uranium, without warning or even
minimal protections. In a remarkably candid admission,
then-Secretary of Energy Bill Richardson admitted that
concerns about workers at these sites had “fallen off the
map.”186
Media investigations followed into the plight of sick
workers in Kentucky, Ohio, and New Mexico.187 Thanks to
a strong push from then-Secretary Richardson and Assistant
Secretary David Michaels and a bipartisan coalition led by
labor 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. What
makes the law significant is that it codifies the principle that
the burden of proof should shift to the government in cases
where workers were put in harms way without their knowl-
edge or consent and subsequently fell ill.190 Further, the
compensation proceedings are nonadversarial because the
employer cannot participate in or oppose compensation de-
cisions.191 The new compensation law also designates
workers at four sites (Oak Ridge K-25, Paducah, Ports-
mouth (Ohio), and Amchitka Island Test Site (Alaska)) as
members of a Special Exposure Cohort, who automatically
receive compensation if they are afflicted with 1 of 21
“radiosensitive” cancers—on the principle that they were
not 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
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 the
Job, 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 as
well as workers, despite the fact that there was no political support
for 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; Claims
for 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; Claims
for 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 of
Worker Compensation Programs, Hearings and Final Decision on
Claims).
192. Energy Employees Occupational Illness and Compensation Pro-
gram Act of 2000, Pub. L. No. 106-398, 114 Stat. 1654, tit. XXXVI,
§3626(14).
32 ELR 11078 ENVIRONMENTAL LAW REPORTER
Copyright © 2002 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
Special Exposure Cohorts who “may have been endan-
gered” and “it is not feasible to estimate radiation dose
with 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 claims
for compensation.195
Although much remains to be done to address worker
health and safety in radioactive waste control, acknowl-
edgement by DOE that workers had been harmed, combined
with the new compensation legislation, has somewhat im-
proved the situation for workers. Unfortunately, DOE is
backsliding toward its insular culture of self-regulation and
contractor self-assessments, thus reversing the momentum
toward greater contractor accountability and safety that was
developed 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 uncertainty
about long-term health effects—especially reproductive
and 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 out
during the past decade regarding health effects from ioniz-
ing radiation, and could cause a weakening of the traditional
application of the precautionary principle in radioactive
waste 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 atomic
bombs in Hiroshima and Nagasaki. After a series of studies
over several decades,197 the National Academy of Sciences
published in 1990 what was regarded as a landmark report
that examined comprehensively available data on radiation
exposure.198 This report, like most other analyses and radia-
tions exposure standards on which they are based, uses a
so-called linear no-threshold model, which assumes that
there is a direct 1:1 relationship between radiation exposure
and health effects. Some critics have asserted that no proof
of the linear no-threshold model exists, and therefore a
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 of
American Business, Washington University, St. Louis (Policy Study
No. 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).
9-2002
threshold could be established below which exposures are
acceptable,199 even therapeutic.200
The data thus far is inadequate to support any threshold,
and the proponents of adopting a threshold and discarding
the traditional linear no-threshold model have often ap-
peared to be seeking evidence to support their theory, rather
than pursuing an objective analysis of available data. Cer-
tainly adopting anything other than the linear no-threshold
model would be departing from the precautionary principle
recommended 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 country
to address. First, the intergenerational nature of radioactive
waste almost guarantees that some of the costs for managing
radioactive wastes will be borne by future generations,
rather than the people who benefitted from the electric
power or nuclear weapons.201 Radioactive wastes from
medical research, however, are typically relatively short-
lived and consequently it is conceivable that its costs could
be 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 insurance
coverage of nuclear power and related activities. In the
United States, the so-called Price-Anderson law establishes
a cap on the liability of nuclear power plant operators.203 It
was enacted in 1957 to help encourage private companies to
get involved in the then nascent nuclear power business, and
it was strengthened in the wake of the Three Mile Island ac-
cident when many companies feared potentially astronomi-
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 Radiation
Carcinogenesis for Inhaled Radon Decay Products, 68 Health
Physics 157-74 (1995). R.M. Macklis & B. Beresford, Radiation
Hormesis, 32 J. of Nuclear Med. 350 (1991).
201. Others argue that the economic benefit from generating electric
power is cumulative, and that the national security benefits are inher-
ited by future generations. These issues are not pursued here because
of the obvious questions about the economic value of continuing
U.S. energy inefficiency that could obviate the need for significant
amounts of nuclear power generation, e.g., air conditioning empty
buildings, 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 nuclear
weapons production and the waste management methods used, is not
clear. 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.
9-2002 NEWS & ANALYSIS
Copyright © 2002 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
cal liabilities. Proponents argue that without this support,
they could not operate because private insurance is not
available or is prohibitively expensive. Moreover, they ar-
gue, the indemnification supports cleanup contractors and
local governments who might be involved in emergency re-
sponse, for example, related to radioactive waste shipping
accidents.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 to
western lands for the coal industry.
Finally, the long-term costs for post-cleanup stewardship
of commercial nuclear sites could be borne by taxpayers,
under a little known provision of the Nuclear Waste Policy
Act.206 Although the law does not require, but only autho-
rizes DOE to take responsibility for long-term stewardship
of private nuclear sites, few involved with the issue expect
that the funding from private bonds will be sufficient to
cover 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 of
doing business, the same practices will continue to produce
environmental problems.
V. U.S. Sustainability Progress and Backsliding for
Various Types of Radioactive Waste
Because of the relatively brief consideration given to radio-
active waste control in the Rio Summit and Agenda 21, and
because of the significant differences between radioactive
waste types, a more detailed treatment for each type of waste
is useful.
A. High-Level Waste and Spent Nuclear Fuel
The logjam regarding disposal of high-level waste and spent
nuclear fuel did not break during the 1990s, but merely
shrugged as battles raged along traditional lines.207 Despite
significant 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 vitrification
operations, but little fundamental progress in high-level
waste management. Perhaps the principle cause of the con-
tinuing impasse, is that the issue of high-level waste and
204. See Nuclear Energy Institute, Fact Sheet: Nuclear Insurance, at
http://www.nei.org/doc.asp?Print=true&DocID=&CatNum=3&Cat
ID=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 Costs
and 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 on
DOE to take responsibility for long-term stewardship of sites in-
volved with hafnium or other rare earth elements, which have thus
far included only the AMAX site in West Virginia.
207. For representative arguments for and against interim storage at
Yucca 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 Where
to Dump Nuclear Waste, Christian Sci. Monitor, July 17, 1996,
at 1.
32 ELR 11079
spent nuclear fuel from nuclear power reactors is seen, by
both pro- and anti-nuclear advocates, as a stalking horse for
the viability for nuclear power.208 In the decade since the
Rio Summit, the bottom line for high-level waste remains
the same: there is no long-term repository for high-level
waste or spent nuclear fuel in any country, including the
United States. Also, virtually all of the high-level waste that
was generated during the Cold War remains stored in under-
ground tanks that were not designed to contain high-level
waste for long periods of time.
This section will address spent nuclear fuel and
high-level waste from nuclear weapons production as well
as from commercial nuclear power plants. The Nuclear
Waste Policy Act (NWPA)209 set January 31, 1998, as the
deadline for the federal government to begin taking spent
nuclear fuel from utilities. When commercial utilities and
public utility commissions sued DOE, the U.S. Court of Ap-
peals for the D.C. Circuit held that the DOE was required
unconditionally to accept spent nuclear fuel from utilities
regardless 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 researching
and “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 has
not physically taken any spent fuel from utilities,213 DOE
has offered reduced nuclear waste fund fees to compensate
utilities, although this arrangement is being disputed.214
During the 1990s, Congress voted several times to establish
a “temporary” storage site for commercial spent nuclear
208. Pro-nuclear advocates sometimes argue that nuclear waste is a
readily solvable technical problem and that only “politics” stands in
the way. Their argument is colored by the context that unless the nu-
clear waste problem is “solved” then public, political, and investor
uneasiness with nuclear power would continue and grow. Anti-nu-
clear activists have been accused of using the continuing impasse
over nuclear waste as a pretense for fanning flames of public fear
over nuclear power, and “solving it” would eliminate one of their
most useful organizing tools. From a sustainability perspective, the
fact that nuclear waste lasts virtually forever and has been generated
for decades without a demonstrated disposal method violates a basic
tenet 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.3d
1272, 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 at
http://www.GAO.gov.
212. Based on a recommendation by DOE, President George W. Bush on
February 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.” See
42 U.S.C. §10134 (distinction in original) (legal authority for the
president to designate the site). A seminal book on the subject argued
that eliminating the political power of a host community to object a
siting decision was the only way that high-level waste repository
could 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 power
plants. For example, DOE took possession of the spent fuel and de-
bris in the 1980s from the 1979 Three Mile Island plant accident, and
shipped it to a DOE facility in Idaho. Other spent fuel was shipped
from utilities in Michigan and New York to the West Valley site in
upstate New York for reprocessing.
214. Alabama Power Co. v. Department of Energy, No. 00-16138-J (11th
Cir. 2000).
32 ELR 11080 ENVIRONMENTAL LAW REPORTER
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fuel near the Yucca Mountain site in Nevada. But, after
President William J. Clinton vetoed the bill, Congress was
unable to muster a veto-proof majority, usually by a single
vote.215 On July 9, 2002, the logjam was broken when the
U.S. Senate voted overwhelmingly in support of the Bush
Administration’s recommendation that Yucca Mountain be
considered for development as America’s first nuclear
waste depository. The 60 to 39 vote overrode Nevada Gov.
Kenny Guinn’s (D.) attempt to block the proposal. DOE
now must obtain a license from the Nuclear Regulatory
Commission (NRC) for the facility, a process that could
take 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 volunteer
community for “temporary” storage of high-level waste and
spent nuclear fuel failed. The NWPA established an Office
of Nuclear Waste Negotiator to induce communities with
annual payments of $5 million prior to receiving spent fuel
and $10 million per year until the facility was closed. DOE
received several applications for initial planning funds, but
none of the communities ever received any waste. Of the
three counties that were funded, two applications were
blocked 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, resulting
in 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 plants
nationwide to improve operational efficiency, coaxing as
much power as possible from their fuel before it becomes
spent fuel and ends up in on-site storage pools. But, spent
fuel storage pools have a definite capacity, and filling them
to capacity can create not only physical but also financial
and political pressure on a utility. When a storage pool is
filled, 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 at
which spent fuel is generated becomes a critical cost-reduc-
tion measure for utilities in an increasingly competitive and
often deregulated market environment that resulted in sig-
nificantly higher capacity or load218 factors219 and shorter
down 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-level
waste activities, discussed below.
Questions raised by a high-level waste repository are
among the most complex and intractable issues confronting
215. For summaries, see Mark Holt, Civilian Nuclear Spent Fuel
Temporary Storage Options (Congressional Research Service
Report 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 Native
America: 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.
9-2002
any nation in the world. The United States has no magic
wand, but it differs from other countries tasked with this
problem 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 sustainable
solution. Dry cask storage offers the potential to abate much
of 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 improve
the safety of on-site storage, and establish longer term stor-
age or permanent disposal site(s). The issue of establishing
an alternative storage or disposal site is not simple. A single
site could be more vulnerable to terrorist attack because of
the high concentration of a larger amount of waste, although
dry cask storage would be significantly less vulnerable than
a single or large pools containing spent nuclear fuel. Also,
significant long-term uncertainties remain about the safety
of a permanent repository. Consequently, some analysts
have recommended long-term interim storage to improve
safety and reduce pressure on establishing a repository in a
forced technical and political environment.223 This solution
would 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 cited
security concerns in the wake of the September 11 attacks as
justification for relocating high-level waste from surface
storage to Nevada.224 others note that spent nuclear fuel and
high-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
220. The WIPP is the Waste Isolation Pilot Plant, see the discussion of
TRU waste in Section II.D. infra.
221. Although the waste emplacement operation at WIPP is touted by
some as evidence that the “nuclear waste problem is being solved,”
the evidence that WIPP is performing adequately may be thousands
of years away. Also, there is some concern that this first repository in
New Mexico could become the nation’s only repository, and that it
will be used later for disposal of high-level waste and spent nuclear
fuel as well as TRU wastes. High-level waste and spent nuclear fuel
disposal in WIPP is currently prohibited by §12 of the WIPP Land
Withdrawal Act. Waste Isolation Pilot Plant Land Withdrawal Act
of 1992, Pub. L. No. 102-579, §12.
222. The lack of significant contamination from the storage of spent fuel
at 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 producing
nuclear weapons materials, in one of the few instances where the
terms “massive,” “extraordinary,” and “vast” are appropriate. See
Linking 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) (Harvard
University Project on Managing the Atom and University of Tokyo
Project on Nuclear Energy).
224. Letter from Spencer Abraham, Secretary of Energy, to the President
George 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.
9-2002 NEWS & ANALYSIS
Copyright © 2002 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
technology that recovered weapons-usable plutonium or
uranium, while also generating large amounts of liquid
high-level waste (high-level waste) and other types of radio-
active waste.226 This high-level waste from reprocessing of
spent nuclear fuel continues to be stored in underground
tanks at the following four U.S. locations:
C Hanford Site, Washington;
C Idaho National Engineering and Environmental
Laboratory, Idaho;
C Savannah River Site, South Carolina; and
C West Valley Site, New York.227
Although the high-level waste problems are confined to a
handful of sites, they merit careful consideration because of
the more than $50 billion228 needed to stabilize and dispose
of the waste. Civilian high-level waste, i.e., spent nuclear
fuel, does not contain as many hazardous elements (larger
volumes 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 built
and 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 vitrification
process removed most, but not all, of the high-level waste
from two tanks, which were then grouted, i.e., filled with
concrete, with a relatively small amount of high-level waste
remaining in the tanks. DOE has sought to characterize this
residual waste as “waste incidental to reprocessing” despite
no statutory or regulatory basis for such a new classification
of waste.230 The Natural Resources Defense Council231
dubbed this ruse “semantic detoxification” and has chal-
lenged DOE’s strategy in court.232
226. With the exception of a brief operation at the West Valley Plant I in
New York, which was heavily subsidized by the government, and
unsuccessful attempts in Illinois and South Carolina, the United
States has not used reprocessing for civilian nuclear power plant
fuel. In contrast, England, France, and Japan have traditionally re-
processed their civilian spent nuclear fuel, although all of these
countries appear to be phasing out reprocessing operations as uneco-
nomical. Russia continues to reprocess spent fuel despite being a
money-losing venture. Other countries, such as South Korea, have
considered and rejected spent fuel reprocessing, in part because of
the 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 at
http://www.cns.miis.edu/pubs/npr/vol08/81toc.htm (last visited
June 3, 2002).
227. Nuclear waste, some of which could be defined as high-level waste
because it was derived form early reprocessing operation at the Oak
Ridge National Laboratory in Tennessee was stored in “Gunite
Tanks.” This waste was largely removed from these tanks during the
1990s, and solidified for disposal as TRU waste at the WIPP site in
New 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 Waste
Management and Implementation Guide, 64 Fed. Reg. 37948 (July
14, 1999).
231. NRDC was joined in the litigation by the Snake River Alliance of
Idaho and the Yakima Indian Nation, which is located near the
Hanford site.
232. Natural Resources Defense Council v. Abraham, 244 F.3d 742, 31
ELR 20547 (2001).
32 ELR 11081
At the Hanford site, the largest volume of high-level
waste—52 million gallons of it—is stored in 177 under-
ground storage tanks.233 The most urgent risk addressed at
these tanks has been the threat of explosion from flammable
gases, e.g., hydrogen.234 Mixing of waste with pumps and
transfer of waste to newer tanks has substantially reduced
this risk. DOE has also revealed that many of these tanks
have been leaking into the ground for decades, and these
leaks 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 the
tanks is also contaminated from the leaking tanks. Despite
numerous regulatory deadlines agreed to between DOE and
state regulators, DOE has failed to begin construction of a
vitrification plant to remove and stabilize these tank wastes.
Reducing the risk of a tank explosion has been hailed as a
success story, but environmental concerns about the tanks at
Hanford leaking into the groundwater have grown for years.
First, some tanks are now more than 50 years old, but have a
design life of only 20 years. Second, the tank leakage is
greater than previously believed. Third, plutonium in the
waste is migrating through soil at a rate faster than originally
predicted.236
Perhaps more than in any other area of radioactive waste
control, the problems of high-level waste and spent nuclear
fuel challenge the sustainability of nuclear technologies for
both environmental and national security reasons.
B. Transuranic (Plutonium) Waste
Transuranic waste chiefly includes waste contaminated
with 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 a
clear “path forward” for this waste and give it a high priority
233. U.S. DOE, Summary Data on the Radioactive Waste, Spent
Nuclear Fuel, and Contaminated Media, supra note 28, at
4-9.
234. Similar wastes from the Soviet “Mayak” weapons program near
Chelyabinsk and Khystym, exploded from underground storage
tanks 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 typically
discharged directly into nearby Lake Kharachai and the Techa River,
one Russian (and former Soviet) official remarked to the author at a
meeting in Chelyabinsk, that the Russians did not have the same
problems as the United States with high-level waste tanks: “The
good news is we don’t have as much waste in tanks because we
dumped it in the river; the bad news is we don’t have as much waste
in tanks because we dumped it in the river.”
235. Vadose zone is the unsaturated zone below ground but above the
groundwater table.
236. A. B. Kersting et al., Migration of Plutonium in Ground Water at the
Nevada Test Site, 397 Nature 56 (1999).
237. More precisely, TRU waste includes alpha-(a subatomic particle
composed two protons and two neutrons, indistinguishable form a
helium atom nucleus) emitting wastes containing more than 100
nanocuries/gram of TRU isotopes, i.e., isotopes with an atomic
number larger than uranium, or more than 92 on the periodic table
of 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 small
quantities of non-defense TRU waste could be stranded at laborato-
ries where they were generated.
32 ELR 11082 ENVIRONMENTAL LAW REPORTER
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for construction and operation of a disposal site. Conse-
quently, DOE completed construction and began shipping
and 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 WIPP
site 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 Mountain
repository in Nevada next in line. Others note that disposal
of stored transuranic waste in WIPP is not expected to ad-
dress the large amounts of buried transuranic waste240 that
presents more immediate threats to groundwater.241 Be-
cause of such unresolved issues, and because relatively little
transuranic 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. The
operation of WIPP may warrant such historic status in an-
other 10 years as part of a 20th anniversary review of the Rio
Summit.242
The legal path to opening WIPP was the WIPP Land
Withdrawal Act243 enacted in 1992, which established a pro-
cess for external regulation of the site by EPA,244 and it
cleared the way for the land to be transferred for DOE use
under the Federal Land Policy and Management Act.245 The
WIPP experience with external regulation246 provides an
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 the
southern New Mexican desert) nor a plant (it involved relatively
simple and small surface facilities for unloading and support). James
Brooke, 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 historic
importance include: (1) the operational experience in successfully
operating a deep geologic repository (albeit for a fraction of its
10,000+ year lifetime) substantially reducing risks by reducing the
backlog of stored TRU wastes that present legitimate risks, or alter-
natively if an operational accident occurs, raising questions about
the safety of deep geologic disposal of radioactive waste; (2) if the
NWPA 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) if
WIPP 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 from
other regulatory requirements in 1996, e.g., compliance RCRA LDR
restrictions. National Defense Authorization Act for Fiscal Year
1997, Pub. L. No. 104-201 (1996).
246. DOE generally followed the regulatory requirements laid out in the
WIPP Land Withdrawal Act, including submitting documents to
comply with EPA radiation standards at 40 C.F.R. pt. 194, and the
RCRA Part B permitting process (Waste Isolation Pilot Plant Land
Withdrawal Act Amendments of 1996, Pub. L. No. 102-579, §8).
Near the end of the process, however, DOE abandoned its commit-
9-2002
example of a structured regulatory environment providing a
more reliable method for conducting nuclear operations.
Seeking to elude regulatory requirements has often lead to
delays and stronger public opposition than when regulatory
approvals were sought.
WIPP is probably the only nuclear waste facility that was
deliberately, if imperfectly, sited and designed with very
long-term disposal in mind. Most nuclear weapons produc-
tion sites became de facto nuclear waste disposal but were
historically selected for reasons other than good waste con-
tainment. For example, the Hanford Site and the Savannah
River Site were selected in large part because of the ready
access to large volumes of water for cooling the production
reactors. The Rocky Flats site was selected in part because
its scenic location against the dramatic “flatirons” of the
front range of the Colorado Rocky Mountains, combined
with the remoteness, were expected to be desirable for pro-
ducing plutonium components and employing scientists
who had worked at the scenic Los Alamos site in New Mex-
ico.247 DOE has indicated that these three sites, which were
never selected for waste disposal, will contain nuclear waste
and 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 to
accept it, such as the Carlsbad, New Mexico, community.
Some of these lessons are offered by examining the process
for opening WIPP could be useful for any consideration of
strengthening international nuclear controls.
Despite remaining uncertainties about the long-term suc-
cess of the WIPP disposal site, it is indisputable that the
opening of WIPP represents a significant change in trans-
uranic waste management to the 1992 Rio Summit. Also, a
necessary step toward addressing the serious remaining en-
vironmental threats posed by the existing buried radioactive
waste chronicled by DOE’s comprehensive inventory of
transuranic waste buried in the 1990s is acknowledging that
a problem exists. Nonetheless, these steps toward effective
management are limited and uncertain. Significant and clear
progress on sustainable long-term transuranic waste control
still eludes us.
C. Low-Level Waste
Reducing the amount of commercial low-level radioactive
waste and increasing the amount of information availability,
has generally pushed the United States toward greater
sustainability in low-level waste control. Changes in
low-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 the
potential radioactivity: perhaps low-level waste control
cannot ultimately be sustainable as currently defined. It is
important to remember that low-level waste includes any
ment to seek a Part B permit before opening WIPP (even though per-
mit approval was virtually certain and only a few months away), and
prevailed 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
t o C o n g res s o n L o n g - T erm S t ew a rd shi p ( 2001)
(DOE/EM-0563).
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Copyright © 2002 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
waste not classified as high-level transuranic or another type
of radioactive waste. It generally contains relatively low
levels of radioactivity, but it can also include relatively high
levels of radioactivity and typically includes radionu-
clides249 that are as long-lived as those found in high-level
waste.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’s
Price-Anderson authorities. DOE remains “self-regulating”
for any low-level waste generated by DOE facilities. Con-
cerns about the potential safety and environmental impacts
of low-level waste in part drove an effort during the past
decade to eliminate the self-regulation by DOE of its
low-level waste management. Congress (prior to 1995)
and Clinton Administration officials made serious efforts
to increase DOE accountability and shift regulation of
low-level waste to the NRC,253 but shifting political sands
foiled these attempts.
The management of low-level radioactive waste clearly
illustrates the changing dynamic in nuclear waste control
despite apparent deadlock. Moreover, the changes in
low-level waste dynamics since 1992 offer a parable for
other 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 to
bulge out in another area.
To assess the changes occurring in the world of low-level
waste, we need to examine the two separate sources of
low-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 waste
and transuranic, i.e., plutonium-contaminated, waste are
uniquely generated by government sources, from nuclear
weapons production. Generally, the amount of commercial
low-level waste generated has responded to market forces,
such as high costs, and declined dramatically over the past
decade. During the same period, however, the amount of
low-level waste generated by DOE has increased explo-
sively, chiefly as a result of growth in DOE’s Environmental
Management program.254 In contrast to the commercial
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 Radioactive
Waste 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 and
the Nuclear Regulatory Commission, “Pilot Program on External
Regulation of DOE Facilities by NRC, Signed by Energy Secretary
Federico Pena and NRC Chair, Shirley Jackson (Sept. 17, 1997).
254. The DOE’s Environmental Management program annual budget
grew from approximately $1 billion in 1990 to more than $6 billion
in 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 generation
rate is largely immune to market forces, and often operates in per-
verse ways because of contractor incentives to inflate work scope
32 ELR 11083
low-level waste sector, DOE is largely from market forces
that would promote waste minimization.255 By 1996,256 the
volume and radioactivity of low-level radioactive waste at
DOE sites was more than twice the amount at commercial
disposal facilities,257 and the gap continues to widen.258
In the decade since the 1992 Rio Summit, the realities of
commercial low-level waste have profoundly changed in
the United States. The principal change was that, as the
costs for disposal increased, the volume of commercially
generated low-level waste decreased. As low-level waste
volumes dropped, the unit costs for disposal increased to
cover fixed costs, which justified more investment in low-
level waste reduction efforts, further reducing volume
and increasing unit costs. For example, low-level waste
generated in the Midwest region and shipped for disposal
declined by about 83%—from a high of 114,700 cubic
feet in 1989 to 20,000 in 1996. On the state level, the vol-
ume of low-level radioactive wastes disposed of from
Pennsylvania decreased from more than 225,000 cubic
feet in 1991 to less than 30,000 cubic feet in 1997, or
about an 87% reduction.259
On a national level, the volume of commercial low-level
waste disposed of in 1980 declined by more than one-half
from 3.7 million cubic feet, to 1.4 million cubic feet in
1988.260 The decline in low-level waste generation acceler-
ated during the 1990s. By 1997, only 320,000 cubic feet of
commercial low-level waste were generated261 and by 1999,
and costs to increase their own revenues (the more waste requiring
on-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 responsibility
to manage waste with the generating program, such as defense pro-
gram) had little effect because the same contractor managed the
wastes and sought to inflate their own billable costs. Also, yeoman
efforts at pollution prevention by a small group of DOE employees
pushed vainly against the tide of contractor incentives and other pro-
gram incentives.
255. Some pressure is imposed by the use of commercial facilities like
Envirocare of Utah, which is independently regulated by the
NRC. 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). The
amount of nonenvironmental restoration, e.g., decontamination and
decommissioning-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. See
U.S. DOE, Summary Data on the Radioactive Waste, Spent
Nuclear Fuel, and Contaminated Media, supra note 28, at
7-1.
258. The size of this gap is not clear because the amount of low-level
waste generated by commercial sites is not available publicly after
1999. Prior to 1999, when Congress eliminated the funding, DOE
operated 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 contractor
for 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).
32 ELR 11084 ENVIRONMENTAL LAW REPORTER
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the volume declined to 272,000 cubic feet.262 Thus, from
1980 to 1999, we saw a 90% reduction in commercial
low-level waste generation, despite a 50% increase in the
number of nuclear power plants during that time.263
Another fundamental change in commercial low-level
waste management was that disposal capacity did not
grow as expected. Legal and political challenges to siting
new low-level waste disposal facilities, combined with
plummeting demand due to waste minimization; the re-
sult: no additional waste disposal sites were developed
since the passage of the Low-Level Radioactive Waste
Policy 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 managing
low-level waste. It gave states responsibility for providing
disposal capacity for commercial low-level radioactive
waste. 266 The Low-Level Radioactive Waste Policy
Amendments Act of 1985267 sought to strengthen this sys-
tem with a series of incentives for states to develop new
low-level waste disposal sites or join compacts with other
states. The changes in the low-level waste situation were not
anticipated when Congress put together the LLRWPA,
which assumed a steadily growing demand for low-level
waste disposal capacity. The low-level waste management
framework, anticipating a bumper crop of new commercial
low-level waste disposal sites, set in place incentives for de-
veloping new sites premised on inflexible demand. Among
other requirements, the 1985 Amendments directed states to
establish “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 of
state.268 By 1996, the LLRWPA required states to take title
to low-level waste generated within their states if the states
failed to join a compact or provide for disposal of low-
level waste.
In 1992, the U.S. Supreme Court struck down the core of
the Act as an unconstitutional mandate, ruling that Congress
can 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
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. In
addition, DOE also spent millions of dollars annually from general
U.S. Treasury revenues promoting the low-level waste industry with
professional 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 Act
of 1985?, 11 Harv. Envtl. L. Rev. 437, 439-440 (1987)
269. New York v. United States, 505 U.S. 144, 22 ELR 21082 (1992).
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the 1992 Earth Summit, there was a rumor of impending cri-
sis regarding whether the LLRWPA would work and
whether states would form compacts and deal with the
low-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 waste
minimization efforts, the long-term sustainability of U.S.
low-level waste disposal is far from mature. First, the
United States continues to rely almost entirely on disposal
of 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 are
designed to last for more than 200 years, or roughly 10 times
the half-life of many of the radioactive wastes.270 These
vaults not only provide better containment, but also enable
future generations to more readily monitor and retrieve
wastes, if necessary. In the United States, relatively few
waste vaults have been built, and where they have been
built, 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 built
vaults while their competitors simply continued to dispose
of waste in trenches. Similarly, officials at DOE’s Savannah
River Site have seldom used the disposal vaults at the site to
reduce costs compared to using traditional landfills.
Second, the United States has not developed a system for
long-term stewardship of low-level waste sites after they are
closed. In theory, each private waste site should have suffi-
cient financial bond authority to support long-term cleanup
and 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, DOE
signed an Agreement in Principle272 with the NRC in 2001
to begin a process to deal with these sites. Since then, how-
ever, no progress has been made on developing a long-term
stewardship program, despite several sites that are moving
forward with decontamination and decommissioning de-
manding resolution of this issue.273
270. As discussed in Section V.C., supra, entitled, Low-Level Waste, the
United States does not define wastes according to the level or persis-
tence of radioactivity, so there is no clear relationship between waste
type and longevity of waste hazard using the U.S. system. European
waste classification systems, however, are typically related to the ra-
dioactivity in the wastes, and therefore a disposal design can more
reliably be related to the type of waste it contains.
271. 41 U.S.C. §10171b, and 10 C.F.R. §20.1403. Interestingly a more
narrow 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 rare
earth elements for source material.” Id. §10171c. So far, the only site
where this provision has been found to apply is the AMAX site near
the Ohio River in Parkersburg, West Virginia, not coincidentally, the
home state of powerful Sen. Robert Byrd (D-W. Va.).
272. U.S. NRC, U.S. DOE, Agreement in Principle for Transfer of NRC
Restricted Release Sites to DOE as Authorized Under Section
151(b) of the Nuclear Waste Policy Act, Signed by DOE Assistant
Secretary Huntoon and NRC Division Director John Greeves
(Mar. 15, 2001). The Agreement in Principle committed DOE and
NRC 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.
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Until the United States grapples with the safety of dis-
posal and the long-term stewardship, the sustainability of
the ongoing disposal of low-level radioactive waste will be
fundamentally questionable.
D. Mixed (Hazardous and Chemical) Waste
During the decade since the Rio Summit, an almost entirely
new area of nuclear waste control has emerged, called
“mixed waste” (radioactive waste mixed with hazardous
chemicals regulated by RCRA).274 Although high-level
waste and transuranic waste are often “mixed,” the term
generally refers to low-level mixed waste, which presents
certain technical275 and regulatory problems.276
At the time of the Rio Summit, the regulation of mixed
waste 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, and
penalties under RCRA. DOE successfully argued that, bar-
ring an explicit waiver by Congress, it enjoyed “sovereign
immunity.”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 special
problems associated with mixed waste; (2) that demanding
compliance with RCRA for mixed waste could harm work-
ers; (3) because it was technically impossible to comply
with RCRA; and (4) that states were seeking authority to
levy fines and penalties merely to reach into the “deep pock-
ets” of the federal government, and consequently waiving
sovereign immunity would amount to allow states to make a
“run on the bank” against the federal government. Through
years of hearings and research, DOE’s arguments were
found to be ungrounded in fact, and Congress passed the
FFCAct,279 which amended RCRA and partially addressed
the 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 the
FFCAct, DOE developed a process to work with states
through the National Governors Association (NGA) Center
for Best Practices. Using the NGA forum to establish a con-
274. 40 C.F.R. pt. 261.
275. One technical issue with mixed waste is the problems that could arise
upon 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: How
Self-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), 33
U.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.
32 ELR 11085
structive dialogue, state regulators and DOE staff worked
successfully to deal with mixed waste compliance issues
through regular meetings and extensive information shar-
ing. This process could be a model for working through new
nuclear waste control issues where broad dialogue and the
use of open and timely access to information can serve as an
antidote 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 enactment
of the FFCAct, Congress passed the National Nuclear Secu-
rity Administration Act (NNSA Act)282 to give the nuclear
weapons enterprise more autonomy from DOE. It may have
also provided the nuclear weapons enterprise even greater
sovereign immunity protections than those addressed in
DOE 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 grown
from only faint recognition of the issue, to developing tech-
nologies and facilities to manage the waste. Perhaps more
importantly, the federal government has developed, through
the NGA, a mode for resolving issues with states before they
become problems using mixed waste as the first successful
test case. The United States remains far from able to demon-
strate a sustainable system of managing mixed waste, but
significant progress has been made. If the new NNSA seeks
to elude compliance with state enforcement of mixed waste
requirements it will reflect an area of serious backsliding to
the 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 and
the Energy Research and Development Administration
(ERDA)—operated the U.S. nuclear weapons complex in
secrecy and essentially devoid of environmental oversight
and regulation.284 Largely as a result, DOE is now faced
with an enormous environmental cleanup problem—1.7
trillion gallons of contaminated groundwater (four times the
282. National Defense Authorization Act for Fiscal Year 2000, Pub. L.
No. 106-65, 113 Stat. 512, tit. XXXII, (1999) (codified as National
Nuclear Security Administration Act, 50 U.S.C. ch. 24).
283. K.C. Schefski et al., Sovereign Immunity and the National Nuclear
Security Administration: A King That Can Do No Wrong?, 31 ELR
10111 (Jan. 2001).
284. In 1946, the Atomic Energy Act (AEA) was passed, and in 1954
amended, to create the Atomic Energy Commission (AEC) and
bring the production of nuclear weapons under governmental con-
trol. AEA of 1946, ch.724, 60 Stat. 755, as amended by the AEA of
1954, ch. 1073, 68 Stat. 919 (codified at 42 U.S.C. §§2011-2297g-3
(1994)). While the AEA recognized the need to protect [public
health] 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 AEC
was 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). The
ERA granted ERDA internal regulatory authority over the manage-
ment of radioactive waste. Id. §5812(d). ERDA was superceded by
DOE in 1977 under the Department of Energy Organization Act of
1977, 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 generally
Finamore, supra note 44, at 83; O’Very, supra note 44, at 281.
32 ELR 11086 ENVIRONMENTAL LAW REPORTER
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daily U.S. water consumption) and 40 million m3 of soil and
debris (enough to fill approximately 17 professional sports
stadiums); 18 metric tons of weapons-usable plutonium
(enough for 2,250 nuclear weapons)285; more than 2,000
tons of intensely radioactive spent nuclear fuel; and about
4,000 facilities to decontaminate and decommission.286
One of the revelations in the decade since the Rio Summit
has been the acknowledgement of the massive scale of con-
tamination of nuclear facilities, particularly nuclear weap-
ons facilities for waste disposal and contamination caused
before current controls were in place. The new awareness it
has brought grew as a result of steady uphill efforts by some
DOE 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 the
nuclear weapons production facilities, caused it to enter into
several compliance agreements with states. A senior DOE
official later acknowledged that production demands drove
the 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 them
their due in the jurisdictions where we left messes, and
we should do that; we should do more, better, sooner,
quicker. I mean we really mucked up Tennessee. I mean
that 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 has
sought to reduce this overhead burden despite resistance
from political, economic, and bureaucratic interests, as well
as some legitimate technical issue requiring resolution
through institutional changes of investment in science and
technology.289
Since 1992, the Environmental Management program
has matured to a broad realization that “cleanup”—in the
normal sense of the term—is physically and economically
impossible with available technology. As a result of this re-
alization, DOE began to address to need for an effective
long-term stewardship program, including significant in-
vestments in science and technology to improve the cleanup
tools and its understanding of the problems.290 This maturity
includes recognition that cleanup decisions must involve
consideration of long-term consequences, and that these
285. This assumes each nuclear warhead requires 8 kilograms (18
pounds), 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 note
124; U.S. DOE, The 1996 Baseline Environmental Manage-
ment Report, supra note 124.
289. See most recently, Memorandum from Jessie Hill Roberson, supra
note 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.
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consequences must begin with facility design and construc-
tion, not wait until cleanup.291 Regrettably, DOE appears to
have reversed course and is actively seeking to shirk its re-
sponsibility for long-term stewardship.292 Consequently, it
appears that the Environmental Management program will
not only be continuing for another generation, but a new
cleanup 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 to
support a more effective and sustainable nuclear waste con-
trol regime. The fact that nuclear waste controls have been
neither completely effective nor sustainable results less
from the failure by the U.S. to implement these principles as
the need to abide by more fundamental and broad-based
principles. The section summarizes several recommenda-
tion that address both the need to better implement existing
principles and control mechanisms, and the need to address
some more fundamental and broad-based issues. De-
veloping and using these additional principles and measures
are difficult for governments, especially international bod-
ies such as the United Nations and its IAEA. In addition, the
fundamental nature of nuclear waste—long-lived and inex-
tricably linked to vital national security concerns—may
make it impossible for nuclear waste controls to be entirely
sustainable, regardless of government measures taken.
A. Use Existing Institutions, Laws, and Science More
Effectively
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 the
fullest extent. Perhaps the best example is the use of
NEPA293–the premier statute of the modern era of environ-
mental laws. The requirements of NEPA, if carried out fully
in good faith, would include consideration of the long-term
sustainability, including life-cycle costs of any proposal that
would involve generating or managing radioactive wastes.
Certainly NEPA could be usefully applied to many environ-
mental issues, but one element of NEPA seems uniquely
suited to application to radioactive waste control, and has
been particularly ignored: consideration of “irreversible and
irretrievable commitments of resources.”294 Because of the
long-lived—essentially permanent—nature of some radio-
active wastes, more careful consideration of this section of
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, Jessie
Roberson (Sept. 27, 2001); Shawn Terry, States Complain to DOE
About 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 which
would be involved in the proposed action should it be implemented.”
42 U.S.C. §4331, ELR Stat. NEPA §102(2)(C).
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NEPA could require that many projects and operations are
scrutinized 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 of
undertaking a nuclear project, including waste management
costs and essentially permanent preemption of the use of the
land, are not fully considered. In 1994, Congress included in
the 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 this
statutory requirement.
B. Reform or Develop New Institutional Mechanisms
The two primary nuclear waste control organizations in the
United States—the NRC and DOE—have been regularly
criticized 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’s
funding is severely limited by the legal requirement that
they fund their operations largely by fees on industry.296 In
making decisions on whether to regulate certain wastes, the
NRC 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 such
as uranium byproduct waste (known as 11e2 wastes) that
were 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 waste
generated after 1978, and no NRC controls are imposed on
identical wastes generated prior to 1978. These illogical re-
sults could be addressed by NRC funding reforms that allow
exceptions to the self-funding requirement for certain activ-
ities that are unlikely to produce any fee revenues because of
a moribund industry sector.
The failure of DOE to address the environmental issues
associated with nuclear waste and nuclear weapons opera-
tions results in part from the inherent conflict between its
mandate to promote nuclear technology, and its mandate to
self-regulate its nuclear safety and some waste management
activities.298 Numerous proposals to eliminate DOE have
been made, but stumbled on a lack of understanding of
DOE’s significant role in nuclear weapons production and a
lack of a viable organizational alternative.299 Within DOE,
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 that
the NRC recover through fees approximately 98% of its budget au-
thority, less monies appropriated from the Nuclear Waste Fund, in
FY 2001, 96% in FY 2002, 94% in FY 2003, 92% in FY 2004, and
90% 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, and
construction of the vitrification facility at Hanford) as well as occu-
pational health and safety.
299. In 1981, President Reagan famously appointed retired dentist and
former Gov. James Edwards (R-S.C.) as Secretary of Energy with
a mandate to dismantle the agency, until the president was in-
formed in March 1981 that DOE has responsibility for nuclear
weapons production, at which point he reversed himself and pro-
posed large budget increases for DOE. In 1995, when Republi-
32 ELR 11087
however, realignment could help address the emerging sig-
nificant issues, such as nuclear material stabilization and
post-cleanup stewardship. In 1994, DOE established a new
Office of Nuclear Materials Disposition. This office has
thus 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 these
largely “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 of
stabilizing surplus plutonium.
EPA and DOE have completed cleanup of dozens of nu-
clear waste sites. These cleanups have generally involved
on-site stabilization or containment rather than removal.
Consequently, long-term stewardship of the residual con-
tamination and waste is required. Long-term stewardship of
radioactive waste involved longer periods of time, often
perpetual care, than is generally required for chemical con-
tamination.300 There is a serious question about the ability
of and organization with competing missions, such as EPA
or DOE to carry out this mission for the long periods of
time required.301 DOE announced its intention to seek to
“develop a strategy for transferring lands that are not
owned by DOE or associated with DOE missions but for
which it is slated to perform long-term stewardship to
other 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 little
funding, are capable of taking on this complicated new and
long-term commitment for public health and environmen-
tal protection of residual radioactive contamination and
wastes. A new entity—government or private—that is in-
sulated from competing missions demands, and funded
with a long-term trust fund mechanism may be required to
address 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 future
generations. 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 generated
decades earlier. In response, long-term private-sector fund-
cans took control of both houses of Congress, they also proposed to
eliminate DOE for cost-cutting purposes. Similarly, the proposals
were based largely on the incorrect notion that DOE’s primary mis-
sion was energy regulation and promotions, rather than nuclear
weapons production and cleanup. Also, members learned that most
large 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 Other
Agencies Splits Agency, Inside EPA Superfund Rep., Mar. 4,
2002, at 1.
304. See Section IV.B.2., supra, discussing Principle 16.
32 ELR 11088 ENVIRONMENTAL LAW REPORTER
Copyright © 2002 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
ing mechanisms have been established for nuclear waste.305
The states of South Carolina and Washington, where private
low-level waste sites operate, have established perpetual
care accounts to ensure long-term maintenance of waste
sites after closure.306 The federal government currently ex-
empts itself from RCRA financial assurance requirements
applicable to private parties.307 In one case, however, DOE
currently funds a limited trust fund established for a disposal
site in Oak Ridge, Tennessee.308
There are significant uncertainties about the long-term
viability of these individual trust fund mechanisms, such as
whether the amount is sufficient to fund all of the work, and
whether 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-term
funding 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 the
sites, but also, information management and community li-
aison to ensure that individuals and organizations who need
to know exactly where the contamination is located, such as
developers, construction crews and utility workers, can get
ready access to accurate information.311
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 site
maintenance. 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 Carolina
Hazardous Waste Management Act §44-56-160 (1981) directs the
state 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 between
Chem-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 trust
fund but is an “investment fund” (without indicating that there is any
difference 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 the
more than a hundred sites where DOE plans to place residual waste
and 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 draft
DOE study, concern about long-term funding was the second most
common 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 because
it 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 constructions
contingency, and higher development costs while capital equip-
ment that has been mobilized sites idle while the extent of contami-
nation in investigated.
9-2002
D. Improve Scientific, Technical, and Institutional Basis
for 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 radioactive
waste. Moreover, because of the decades of secrecy and
false information supplied by the federal government and
private companies, a much larger lack of public consensus
exists 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 exists
for radioactive waste control. To a greater extent than in
other environmental fields, debates about radioactive
waste controls quickly become mired in a battle of experts,
each with there own perspectives, data sets, or analyses of
the same data. Funding to address the health impacts of
ionizing radiation is too often clouded with suspicions that
the research is being directed toward a predetermined out-
come.312 Also, the risk assessment of radioactive waste is
too 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 for
radioactive waste management. DOE, for example, has con-
ducted much of its research outside of the standard scientific
process of peer review. The public acceptance of even the
most rigorous and objective science, however, will continue
to 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 may
need to be decoupled from organizations and institutions,
such as DOE and nuclear utilities, who could benefit from
skewed 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 a
much-needed body of trusted research. The goal of a broad
initiative in improving the scientific basis of radioactive
waste control should be a more civilized debate using
widely recognized and trusted sources of information, and
widely supported outcomes using a more open and efficient
decisionmaking process.
E. Explicitly Connect Nuclear Waste Management With
Nonproliferation Issues as Well as Environmental and
Safety Issues
It was not by accident or oversight that the 1992 Rio Summit
provided limited attention to radioactive waste control and
312. For example, the recent initiative by Senator Domenici to study the
health impacts of radiation is widely recognized as an effort to
loosen 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 a
seminal 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 and
effects; whereas risk management was identified as the subsequent
management decisions using the best available information.
314. See IV.B.2, supra, discussing Principle 15.
9-2002 NEWS & ANALYSIS
Copyright © 2002 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
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 the
U.N.’s IAEA for support regarding radioactive waste con-
trol, which is often regarded as a specialized technical field
too technically complex for outsiders. The IAEA has
achieved remarkable success in coalescing agreements
among widely divergent international participants, in spite
of fundamental conflicts in its mission. In addition, the
IAEA is appropriately devoting its limited resources to the
urgent priorities of nuclear weapons materials controls
and safeguards.
Nonetheless, there are some inherent limitations with
continued reliance on the IAEA, as currently configured,
for international implementation of waste control and
nonproliferation objectives. The IAEA is expected to si-
multaneously promote nuclear technology and to control
it. These conflicts have resulted in significant limitation
on the ability of the IAEA to impose meaningful controls
on the spread of nuclear technologies that could threaten
world peace and public health and the environment. In the
United States, these conflicting dual missions were found
to be unworkable and resulted in the separation of the
AEC in 1972, resulting in the establishment of the NRC
and the ERDA (later DOE). One long-time nuclear ana-
lyst has suggested that “[t]he IAEA membership should
vote to amend the agency’s statute to relieve the Board of
Governors of its safeguards authority and limit the board
to pursuing the agency’s nuclear promotional activi-
ties.”315 Such a dramatic change is unlikely, however, as
long as limited resources are required for the nonpro-
liferation missions that overshadow other radioactive
waste control missions, and nuclear technologies are per-
ceived to be valuable for promoting international eco-
nomic development.
The summit in Johannesburg could usefully address the
benefits of reorganizing the missions of the IAEA to provide
adequate independence of its regulatory functions from its
role in promoting nuclear technologies. The U.S. system of
“checks and balances” may not be perfect, but it provides an
improved institutional framework to allow for meaningful
controls on these critical materials and technologies. More-
over, future discussions about global radioactive waste con-
trol issues, should recognize seamless connection between
certain nuclear weapons proliferation and nuclear waste is-
sues, e.g., spent nuclear fuel reprocessing and high-level
waste management. The artificial barrier between national
security and environmental issues should be broken down.
In light of the extraordinary importance of effectively con-
trolling the proliferation of nuclear weapons, especially in
the wake of September 11, no potential barrier to improved
controls should remain unquestioned.
F. Openness and Democracy
Nuclear technologies and radioactive waste controls have a
serious problem with openness and democracy. Although
nuclear power provides one-fifth of U.S. electrical power
and U.S. government officials of both political parties assert
that nuclear power is expected to remain a vital element of
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).
32 ELR 11089
our power supply, no operational commercial nuclear
power 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 weapons
production facility has been built and operated for nearly 25
years. The irony is that the proponents of nuclear power
seem most opposed to greater openness of information and
decisionmaking, while opponents of nuclear technologies
argue for greater openness.
Whatever one’s view about whether the United States
should build more nuclear weapons production facilities
and 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 be
traced 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. Mending
this tear in the fabric of democracy will require a long-term
and systematic effort at greater openness between govern-
ment decisionmaking and the public including a free flow
of information.
Unfortunately, because of the inherent technical charac-
teristics of nuclear weapons and nuclear waste, security
concerns about waste could greatly limit the amount of in-
formation made available and the access to decisionmaking
that 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 completely
sustainable 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 of
sustainable development issues must address these issues in
dealing with radioactive waste controls.
When the Cold War ended and Congress began shifting
funding from nuclear weapons to the environmental
cleanup 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 the
specific facility operations and individual personnel did not.
Consequently, DOE’s environmental budget has essentially
been used to support nuclear weapons facility infrastructure
and operations in many cases. Successive DOE managers
have tried with limited success to reduce the overhead costs
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, then
there is a direct, zero sum, trade off between funding nuclear weap-
ons activities versus funding environmental cleanup and waste
management. 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, at
http://www.mbe.doe.gov/budget/03budget/index.htm (last visited
Apr. 26, 2002).
32 ELR 11090 ENVIRONMENTAL LAW REPORTER
Copyright © 2002 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
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 that
nuclear 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 were
made 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 and
management strategy for the foreseeable future, regardless
of whether the enterprise is sustainable in the long run. The
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 Interest
Research Group, 426 U.S. 1, 6 ELR 20549 (1976), held that the
CWA does not apply to radioactive materials regulated under the
AEA, 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 limit
access to facilities for environmental inspectors by denying or delay-
9-2002
relatively unique features of nuclear power—producing ex-
traordinarily long-lived320 man-made elements, e.g., pluto-
nium, with potentially catastrophic security consequences
and intensely radioactive isotopes (cesium-137, stron-
tium-90, and cobalt-60)—render it ultimately unsustainable
with current technologies.
The maturing of radioactive waste control and reconcil-
ing nuclear technologies with sustainability requires that we
deal 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. Reconciling
the use of nuclear technologies with an open democracy will
be perhaps the biggest challenge to sustainable radioactive
waste control. National security is truly threatened when the
people must override their common sense in order to believe
their government.
ing security clearances for years until the inspector assigned had
moved to another job. Also, DOE security staff sometimes harassed
those environmental inspectors who succeeded in gaining access to
facilities (see “Three Blind Mice” incident at Rocky Flats).
320. Although Pu-239 has a half-life (time required for one-half of a
given amount of a radioactive element to decay to other elements) of
24,360 years, its persistence is virtually perpetual from a practical
environmental management perspective. See R.B. Leonard, Prop-
erties of Plutonium Isotopes, in Plutonium Handbook (O.J. Wick
ed., 1980). The long-lived nature of radioactive waste is not unique.
Certain natural toxins, e.g., lead, are truly perpetual. Also, a class of
persistent organic pollutants, e.g., dioxins and furans, can be as
long-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).