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The Statutory and Regulatory Context for Low-Activity Waste Management From the discovery of radioactivity in 1895 through most of the first half of the 20th century, radioactive elements such as uranium and thorium used in industry and medicine in the Uniter! States were regulated by the states. In the micicIle of the 20th cen- tury the Army Corps of Engineers managed the first large-scare uses of radioactive mate- rials in the Manhattan Project, which produced the worId's first nuclear weapons. These activities were kept secret until after World War II. Weapon component manufacturing along with other uses of materials controlled uncler the wartime program were first regulated under the Atomic Energy Act of 1946, the McMahon Act. The McMahon Act was intended to ensure the security of nuclear ma- terials rather than to control their racliological hazards. It defined three categories of regulated radioactive material (source, byproduct, and special nuclear) that have been preserved in subsequent revisions of the Act and that are used in other laws ant! regula- tions (see Appendix E). The Act also created the Atomic Energy Commission (AEC) to oversee all nuclear activities begun in the Manhattan Project (DOE, 1996~. The material categories and definitions in the McMahon Act were established be- fore the health hazards of nuclear radiation were fully appreciatec!nuclear security was the overriding concern. Over the past 60 years, new regulations based on these original definitions clevelopect as a patchwork while knowledge was gained, new materials anct technologies discovered, and risks recognized. It is in this context that the Board on Ra- dioactive Waste Management initiated this study and the committee developed its find- ings for this report. FEDERAL STATUTES APPLICABLE TO LOW-ACTIVITY WASTES The Atomic Energy Act of 1954 (AEA) replacer! the McMahon Act, ended the government monopoly on use of nuclear materials, and established the framework for the commercial nuclear industry. In 1974, the Energy Reorganization Act disbanded the AEC and establisher] the Nuclear Regulatory Commission (USNRC) to control commer- cial nuclear activities, and the Energy Research and Development Administration (ERDA) to control defense nuclear activities. The Department of Energy (DOE) replaced ERDA in 1977. The Environmental Protection Agency (EPA) was establisher! in 1970 and has authority under the ALA to set radiation protection criteria and standards and issue radiation protection guidance for federal agencies. EPA also controls radioactive 13

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material under authorities grantee! by other statutes. Statutes that provide authority for the federal regulation of low-activity wastes are listed and described briefly in Siclebar 2.1. Most low-activity wastes fall under provisions of the AEA because they arose as source, byproduct, or special nuclear materials. Notable exceptions are wastes that con- tain naturally occurring radioactive materials (NORM) from non-nuclear activities, such as mining, oil and gas production, and water treatment. Wastes that include NORM are feclerally regulated only if the waste, or the fee(lstock in processes that proclucec} the waste, contains uranium or thorium in concentrations greater than 0.05 percent by weight (i.e., AEA source material). Federal statutes define one important group of low-activity wastes Tow-leve! wastesonly by exclusion: low-level waste is not spent nuclear fuel, high-level waste from fuel reprocessing, kansuranic waste, or AEA section 1 le.~2) byproduct material (waste from processing of uranium or thorium ore). Thus, at this time there is no statu- tory upper limit or lower limit for the level of radioactivity required to cleciare a material to be low-level waste.) As a result the radioactivity in wastes that meet the definition of low-level waste may be low enough that it is essentially undetectable or high enough to procluce acute harm to humans or serious contamination incidents. FEDERAL REGULATIONS APPLICABLE TO COMMERCIAL LOW- ACTIVITY WASTES At the federal level, AEA Tow-activity wastes generated or disposed in the com- mercial sector are regulated by the USNRC under its authority to license nuclear facilities and the possession of nuclear materials (see Appendix B). The USNRC may relinquish a portion of its authority to individual states, known as Agreement States. All disposal fa- cilities currently licensed to accept low-level wastes are located in Agreement States. The EPA has authority to regulate environmental radiation exposure as well as hazardous chemical wastes, and in certain cases to determine appropriate waste (lisposal and cleanup methods. Low-activity wastes that contain both AEA radionucTides and hazardous chemi- cals are referred to as "mixed wastes" and are thus subject to regulation by both the USNRC and EPA. The Department of Transportation regulates the shipment of ractioac- tive materials while the USNRC has the authority to regulate certain packages for trans- portation of nuclear matenals. Siclebar 2.2 summarizes federal regulations for low- activity wastes in the commercial sector. Non-AEA wastes, such as TENORM wastes, are subject to EPA radiation protec- tion standards and guidance. The Resource Conservation and Recovery Act (RCRA) pro- vicles another important authority for the EPA to regulate non-AEA material. States must go through a formal delegation process to receive EPA authorization to implement the ~ Upper limits on the concentrations of radionuclides in low-level waste that can be disposed in near-surface facilities are imposed by the USNRC in 10 CFR Part 61. The USNRC has em- barked on a rulemaking for the disposition of solid materials that contain very low levels of radio- activity. 14 Interim Report

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SIDEBAR 2.1 STATUTES RELEVANT TO THE REGULATION AND MANAGEMENT OF LOW-ACTIVITY WASTE Atomic Energy Act of 1954, As Amended The purpose of the Atomic Energy Act (AEA) (42 U.S.C. Sect. 201 1-Sect. 2259) is to assure the proper management of source, special nuclear, and byproduct material. The AEA and the statutes that amended it delegate the control of nuclear energy primarily to the DOE, USNRC, and EPA. The AEA provides the following definitions: . source material (1) uranium, thorium, or any other material that is determined by the USNRC pursuant to the provisions of Section 61 of the AEA to be source material; or (2) ores containing one or more of the foregoing materials, in such concentration as the USNRC may by regulation determine from time to time (AEA, Section 1 1 czar; special nuclear material (1) plutonium, uranium enriched in the isotope 233 or the iso- tope 235, and any other material that the USNRC, pursuant to the provisions of Section 51 of the AEA, determines to be special nuclear material, but does not include source material; or (2) any material artificially enriched by any of the foregoing, but does not include source material (AF.A Section 1 l Saabs; and byproduct material (1) any radioactive material (except special nuclear material) yielded in or made radioactive by exposure to radiation incident to the process of producing or utilizing special nuclear material, and (2) the tailings or wastes produced by the extraction or con- centration of uranium or thorium from anV are nror.~..~cr~r] nrim~ril`' for itc! QMl~t-~^ ~;~1 ~~' (AEA, Section l l few. ~ ~ 3 ---a --- rim A ~~ ~1,~ AV1 ~~O O~ 1l~lia1 ~UllLbilL Byproduct material declared as waste is usually referred to as 1 le.(l) or 1 le.~2) waste, consistent with the AEA definitions. The AEA references the Nuclear Waste Policy Act of 1982 (NWPA, see below) for the definition of high-level radioactive waste, spent nuclear fuel, and the exclusionary definition of low-level radioactive waste. A definition of transuranic waste (material contaminated with elements of atomic weight greater than 92) was added to the AEA in 1988. Reorganization Plan No. 3 (1970) Although this is not a statute, it was significant in delineating the responsibilities and interactions of the federal agencies. When the Environmental Protection Agency (EPA) was created, it received certain functions and responsibilities from other federal agencies. Among the functions transferred to EPA was the AEA authority to "establish generally applicable environmental standards for the protection of the general environment from radioactive material. As used herein, standards mean limits on radia- tion exposures or levels, or concentrations or quantities of radioactive material, in the general en- vironment outside the boundaries of locations under the control of persons possessing or using radioactive material." EPA also received the functions of the Federal Radiation Council, includ- ing the responsibility to develop and issue radiation protection guidance to all federal agencies. Energy Reorganization Act (1974) The Energy Reorganization Act amended the AEA to split the federal authority over the defense and civilian uses of nuclear materials and facilities. The Atomic Energy Commission was re- placed by two new entities. The Nuclear Regulatory Commission (USNRC) became responsible for the regulation of civilian nuclear facilities and activities, and the Energy Research and Devel- Interim Report 15

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opment Administration (ERDA) became responsible for defense-related nuclear facilities and ac- tivitiesincluding regulation of defense program wastes, and civilian nuclear research and devel- opment activities, e.g., advanced reactors. Department of Energy Organization Act (1977) The Department of Energy Organization Act created the Department of Energy (DOE) as a cabi- net-level agency. DOE replaced ERDA, combined parts of several other agencies, and took over responsibility for defense program wastes. Nuclear Waste Policy Act of 1982, As Amended The Nuclear Waste Policy Act (NWPA) provided statutory definitions for the terms "high-level radioactive waste" (HLW) and "spent nuclear fuel." However, the NWPA defined "low-level ra- dioactive waste" (LLW) in terms of what it is not. That is, LLW is defined as material that is not HEW, spent nuclear fuel, transuranic waste, or AEA byproduct material. The NWPA provides authority for the USNRC to classify material as HEW. Waste containing naturally occurring or accelerator-produced radioactive material (i.e., non-AEA-defined nuclear fuel cycle material) is not included in the NWPA. Uranium Mill Tailings Radiation Control Act of 1978 The Uranium Mill Tailings Radiation Control Act (UMTRCA) addresses the regulation and con- trol of uranium mill tailings (byproduct material as defined in section 1 le.~2) of the AEA). UMTRCA vested the EPA with overall responsibility for establishing health and environmental cleanup standards for uranium milling sites and contaminated vicinity properties, the USNRC with responsibility for licensing and regulating uranium production and related activities including de- commissioning, and the DOE with responsibility for remediation of inactive mill tailings cite long-term monitoring of all the decommissioned sites. Low-Level Radioactive Waste Policy Act of 1980, As Amended in 1985 -Do and The Low-Level Radioactive Waste Policy Act (LLRWPA) establishes state (including regional compacts of states) and federal responsibility for the disposal of LLW and defines the roles of federal agencies (particularly the DOE and the USNRC). The LLRWPA also refers to the USNRC classification of LLW in 10 CFR Part 61. The definition of LLW is essentially the same as in the NWPA, although transuranic wastes are not specifically excluded in the 1985 Amend- ments. Comprehensive Environmental Response, Compensation, and Liability Act of 1980, As Amended by the Superfund Amendments and Reauthorization Act of 1986 The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as Superfund, gives the EPA, in conjunction with state regulators, the authority to investi- gate and remediate sites placed on the National Priority List. The full process includes site charac- terization, evaluation of alternative remediation strategies, and public involvement and results in a legal Record of Decision (ROD). Many sites contaminated with radioactive material, including those licensed by USNRC or controlled by DOE, have been placed on the National Priority List. Guidance for cleaning up contaminated soil and materials, including TENORM, have been issued by EPA. 16 Interim Report

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Resource Conservation and Recovery Act of 1976 The Resource Conservation and Recovery Act (RCRA) has been amended several times, with the most significant amendments passed in 1984 as the Hazardous and Solid Waste Amendments. RCRA provides for the cradle-to-grave control of chemically hazardous wastes by imposing man- agement requirements on generators and transporters of hazardous waste and on owners and op- erators of treatment, storage, and disposal facilities. Regulations pertaining to RCRA waste disposal facilities (landfills) include such details as liner and cover designs. The RCRA hazardous waste regulations are found in Title 40 of the Code of Federal Regulations. Parts 260 through 265 describe hazardous waste management, provide EPA's lists of hazardous wastes, and set standards that must be met by hazardous waste generators and managers. EPA's land disposal restrictions are given in Part 268 and its permit programs in Part 270. RCRA specifically excludes material regulated under the AEA from its jurisdiction; however, | RCRA is applicable to the hazardous constituents in waste contaminated with both chemically hazardous and radioactive materials, which could include accelerator-produced materials. RCRA hazardous waste program, but EPA leaves implementation of RCRA solid waste provisions almost entirely to the states.2 Radiation protection responsibilities may also be delegates! to incliviclual states. As notes! later in this report, there are significant differ- ences in the states' approaches to regulating low-activity wastes. In addition to the primary federal regulations summarized in Sidebar 2.2, several other regulations affect the quantity and disposition of low-activity wastes. Materials that cannot be released or that are contaminated in decommissioning or site cleanup work will become waste. For example, the USNRC regulations governing the decommissioning of licensed sites contaminated with resiclual radioactive material establish a 25 millirem/year close criterion for the release of a site for restricted! or unrestricted use ( 10 CFR Part 20, Subpart E, Radiological Criteria for License Termination). Similarly the EPA has ctevel- oped a 15 millirem/year criterion for the cleanup of soils contaminated with radioactive material (OSWER No. 9200.4-18 Establishment of Cleanup Levels for CERCLA Sites with Raclioactive Contamination). The EPA has exercised its authority under the Clean Air Act to develop standards that limit radon emissions from surface sources (for example, 40 CF~ Part 61, Subpart R. National Emission Standards for Radon Emissions from Phosphogypsum Stacks) and subsurface natural geologic deposits on which structures are built, and radioactive emis- sions from DOE facilities (40 CFR Part 61, Subpart H. National Emission Standards for Emissions of Radionuclides other than Radon from Department of Energy Facilities). The EPA has the authority to regulate non-AEA radioactive waste under the Toxic Substance Control Act (TSCA 15 U.S.C. S/S 2601 et seq. 1976) but has not exercised this author- ity to date. 2 Most TENORM wastes are categorized as solid wastes but not as hazardous waste and thus are state-regulated. Interim Report 17

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SIDEBAR 2.2 FEDERAL REGULATIONS THAT APPLY TO COMMERCIAL SECTOR LOW-ACTIVITY WASTES 10 CER Part 61, Licensing Requirements for Land Disposal of Radioactive Waste These USNRC requirements apply to all LLW containing source, special nuclear, or byproduct material that are acceptable for disposal in a near-surface facility. LLW waste is defined the same way as it is defined in the LLRWPA and the NWPA, namely, radioactive waste that is not classi- fied as high-level radioactive waste, transuranic waste, spent nuclear fuel, or byproduct material as defined in section lle.~2) ofthe AEA (i.e., uranium or thorium failings and waste). Part 61.55 defines three LLW classes (A, B. and C) that are acceptable for disposal in near-surface facilities. Greater than Class C (GTCC) low-level radioactive wastes are the responsibility of DOE. The DOE must dispose of GTCC wastes in a deep geologic disposal facility licensed for high-level waste or in some other manner approved by the USNRC. [NOTE: Federal government responsi- bility for GTCC is not in the regulations, but in the 1985 LLRWPA Amendments.] 10 CFR Part 20, Subpart K, Waste Disposal This regulation addresses disposal by release into sanitary sewers, treatment or disposal by incin- eration, and disposal of specific wastes that are below specified activity levels. 10 CFR Part 40, Domestic Licensing of Source Material, Appendix A, Criteria Relating to the Operation of Uranium Mills and the Disposition of Tailings or Wastes Produced by the Extraction of Concentration of Source Material from Ores Processed Primarily for their Source Material Content (Incorporating 40 CFR Part 192, "Health and Environmental Pro- tection Standards for Uranium and Thorium Mill Tailings") The criteria apply to uranium mill tailings (section 1 le.~2] material under the AEA) generated at mill sites licensed in or after 1978, the date of enactment of the Uranium Mill Tailings Radiation Control Act. Under the USNRC's interpretation of UMTRCA, the Commission does not have jurisdiction to regulate mill tailings generated prior to 1978. 40 CFR Part 266, Standards for the Management of Specific Hazardous Wastes and Specific Types of Hazardous Waste Management Facilities Subpart N of these standards exempts certain mixed waste from RCRA requirements if it satisfies specific criteria. 40 CFR Part 300, National Oil and Hazardous Substances Pollution Plan This regulation implements CERCLA, including the identification of applicable or relevant and appropriate requirements (ARARS). ARARS are specified on a case-by-case basis in each Record of Decision (ROD). When there is no ARAR, or when the ARAR is considered to be non- protective, a life-time risk range of 10-4 to 1 o-6 is used. 2003 Advance Notice of Proposed Rulemaking (anticipated) The EPA is requesting public comment on methods to define and alternatives for disposal of low- activity radioactive waste, including exemption for mixed wastes containing small amounts of radioactive material for disposal in a RCRA Class C disposal cell. 18 Interim Report

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DEPARTMENT OF ENERGY CONTROL OF LOW-ACTIVITY WASTES The manufacture of nuclear weapons, which began with the Manhattan Project, is now the responsibility of the DOE along with responsibility for radioactive waste left as a legacy of the Cold War (DOE, 19964.3 The DOE is self-regulating for low-level waste (LLW) generated and disposed on its own sites. To determine which wastes are deemec! to be LLW, DOE uses the exclusionary definition of LLW provided by the Nuclear Waste Policy Act of 1982 (NWPA), as amencled. Accordingly, DOE manages all waste as LLW unless it meets the definition of high-level waste, spent fuel, transuranic waste, or byproduct material (as defined in section ~ le.~2] of the ALA, as amended). DOE ex- cludes NORM waste from its definition of LLW, but regulates potential exposures under its radiation protection directives and often manages small amounts of NORM as LLW. LLW that contains hazardous substances as defined by the EPA in 40 CFR Parts 260 and 261 is managed as mixed low-level waste (MLLW). In addition to promulgating regulatory requirements that have the force of law, e.g., 10 CFR Part 835 (see Sidebar 2.3), DOE has developer! a number of Orders adciress- ing radioactive waste and other issues. These DOE Orders do not have the legal en- forcement mechanism of a fecleral regulation. Instead, DOE Orders are incorporated by reference into individual government contracts, and the provisions of the referenced DOE Orders are enforced through contract oversight. This system is complex and tencis to vary from contract to contract and over time. To address this issue, DOE embarked on a program of replacing many of its Orders with regulations. DOE abandoned this effort as being too cumbersome. STATE REGULATIONS However, several years ago Federal statutes provide three important responsibilities for the states with regard to low-activity wastes: (~) each state must have a way to dispose of its own low-level wastes (but not NORM wastes); (2) states may assume portions of the USNRC's regula- tory authority by becoming an Agreement State for the regulation of LLW or uranium mill tailings; and (3) the states regulate non-AEA wastes under authority provided by the state legislature (because they are not covered by federal statutes). As noted in Sidebar 2. I, the LLRWPA of 1980 required every state to provide for disposal of its own LLW, either alone or in cooperation with other states. The law was intended! to encourage the formation of regional interstate compacts, which would be rati- fied by Congress, for disposing of LLW. ~ 1985, because no compacts had been ratif~ect or clisposal sites selected, Congress amended the LLRWPA to create milestones and in- centives for siting disposal facilities (see Siclebar 2.4~. Although the milestones have generally been missed (only three disposal sites are operating, as wit! be discussed in Chapter 3), the states have formed 10 compacts, most states are members of a compact, but no new sites have been clevelopec3 by the compacts. The compacts and their member- ship are summarized in Table 2.1. Section 274 of the AEA, as amencle~l, provides the statutory basis for Agreement States. The USNRC may relinquish to the states portions of its regulatory authority to 3 The Department of Defense is responsible for U.S. military operations, including deploy- ment of nuclear weapons. Interim Report 19

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SIDEBAR 2.3 DOE REGULATIONS AND ORDERS DOE Order 435.1, Radioactive Waste Management (1999) (together with corresponding Man- ual (DOE M 435.1-1) and Implementation Guide (DOE G 435.1-1~) DOE Order 435.1 covers all high-level waste, transuranic waste, and low-level waste handled by all elements of DOE, including accelerator-produced waste and the radioactive component of mixed waste. It also covers both byproduct material as defined by section 1 lend) of the AEA, as amended, and naturally occurring radioactive material when the byproduct material or naturally occurring radioactive material are managed at DOE LLW facilities. Order 435 1 does not apply to spent fuel from nuclear reactors. Chapter IV of the manual addresses LLW. DOE does not clas- sify wastes using the USNRC's Class A, B. C system. For DOE, the location of its sites is con- f~ned to the location of its facilities, and only DOE generators send waste to them. Thus, DOE individually evaluates the performance capabilities of its sites and establishes waste acceptance criteria for each based on a site-specific assessment. 10 CFR Part 835, Occupational Radiation Protection (1998) DOE's radiation protection requirements are equivalent to those contained in the requirements for the commercial sector in 10 CFR Part 20 and are contained in two separate directives. The first is 10 CFR Part 835, which addresses occupational radiation protection. It establishes radiation stan- dards, limits, and program requirements for protecting individuals from ionizing radiation result- ing from the conduct of DOE activities. Part 835 requires that DOE activities involving occupational radiation exposure "shall" be conducted in compliance with a documented radiation protection program (RPP) as approved by DOE. Effective occupational radiation protection pro- grams ensure that the health and safety of the work force are adequately protected by maintaining individual and collective radiation doses below regulatory limits and by implementing a process that seeks doses that are as low as is reasonably achievable (ALARA). The documented RPP in- cludes the programs, plans, procedures, schedules, and other measures undertaken to ensure worker health and safety through compliance with 10 CFR Part 835. The rule applies to exposures from the management of waste at DOE facilities and contains requirements for controlling prop- erty that may be contaminated. DOE Order 5400.5, Radiation Protection of the Public and the Environment (1990) DOE Order 5400.5 requires DOE facilities to maintain public doses of radiation below established limits and constraints and as low as practicable below the limits using the ALARA process. The order contains requirements for limiting liquid discharges and air emissions. It includes require- ments to limit sewer discharges and use of soil columns for controlling disposed radioactive mate- rial. Order 5400.5 also contains DOE's requirements for managing technologically enhanced NORM and 1 lend) byproduct material and DOE's process for control and release of property from DOE control. Property containing low levels of residual radioactive material may be re- leased for unrestricted (e.g., release for residential use of a property) or in some cases, restricted use (e.g., disposition of waste or other personal property to a RCRA landfill or release of real property for recreational use only) if the levels are shown to be below DOE-approved authorized limits. Property demonstrated to meet surface activity guidelines may be released for unrestricted use. Alternatively, unrestricted release or restricted release may be done to authorized or supple- mental limits developed and approved (by DOE) on a case-by-case basis if they meet dose con- license ant! regulate byprocluct materials, source materials, and certain quantities of spe- cial nuclear materials. The mechanism for the transfer of USNRC's authority to a state is an agreement signed by the governor of the state and the chairman of the Commission. 20 Interim Report

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~ order for an Agreement State to license a low-level waste disposal facility, the state regulations for low-level waste disposal must be compatible with USNRC's regula- tions in 10 CFR Part 61. The USNRC also conducts periodic reviews of Agreement State programs, as part of its Integrated Materials Performance Evaluation Program, to cleter- mine if the state's regulations ant! practices continue to be adequate and compatible with USNRC's. If requested, USNRC provides assistance to the Agreement States on low- level radioactive waste disposal issues. Presently there are 33 Agreement States, includ- ing the three states that currently have licensee! I~:LW clisposal facilities. Several other states are in the process of reaching agreement with USN8C. There are differences among the states as to what materials are regulated as TENORM and how they are regulated. While a few states have begun to establish a li- censing system for all industries that generate TENORM wastes (similar to the way the USNRC licenses facilities that handle radioactive sources), others control this class of wastes using specific regulations for TENORM. The majority treat the waste in accor- clance with general radiation protection requirements. The environmental, radiation pro- tection, and waste disposal methods in most cases are based on EPA and or USNRC regulations or guidance.4 TABLE 2.1 Interstate Compacts for Low-Level Waste Disposal _ . . Compact Name Associated States Northwest Alaska, Hawaii, Idaho, Montana, Oregon, Utah, Washington, Wyoming Southwestern Arizona, California, North Dakota, South Dakota Rocky Mountain Colorado, New Mexico, Nevada Midwest Indiana, Iowa, Minnesota, Missouri, Ohio, Wisconsin Central Arkansas, Kansas, Louisiana, Nebraska, Oklahoma Texas Maine, Texas, Vermont Central Midwest Illinois, Kentucky Appalachian Delaware, Maryland, Pennsylvania, West Virginia Atlantic Connecticut, New Jersey, South Carolina Southeast Alabama, Florida, Georgia, Mississippi, Tennessee, Virginia Unaffiliated States District of Columbia, Massachusetts, Michigan, New Hampshire, New York, Puerto Rico, Rhode Island, North Carolina SOURCE: USNRC, 2002. 4 The NORM Technology Connection maintained by the Interstate Oil and Gas Compact Commission (IOGCC) provides state-specific regulatory requirements applicable to NORM- containing waste . Interim Report err ~v$- 21

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An effort has been undertaken by the Conference of Radiation Control Program Directors (CRCPD) to develop a mode! TENORM regulation that couict be adopted or moctif~ec! by state agencies for use in their particular state. The model regulations (Sug- gested State Regulations for Con~o! of Radiation Part N) would require licensing of companies which possesses, use, manufacture, or make products or wastes in which the ractium-226 content is >5 picocuries/gram. As of this writing, the mocle! regulation has been reciraftec3 a number of times. Once the draft regulation is approves! by the CRCPD board of directors, it will be provided to several fecleral agencies (including EPA, USNRC, and DOE) for their comments and concurrence. If approved, the regulation would be published for states to consider in developing their own approaches to TENORM. SIDEBAR 2.4 EFFECTS OF THE LOW-LEVEL RADIOACTIVE WASTE POLICY ACT In 1980, Congress enacted the Low-Level Radioactive Waste Policy Act, reflecting its declared policy of holding each state responsible for providing capacity for disposal of its low-level radio- active waste either within its own boundaries or through state compacts. However, Congress pro- vided no penalties if states failed to provide disposal capacity. Five years later, there were still no assured disposal locations for such waste for at least thirty states. In response to this failure of the majority of states to designate disposal sites within their respec- tive borders or to enter into regional compacts, Congress again addressed this disposal issue in the Low-Level Waste Policy Amendments Act of 1985. To stimulate the states into action, Congress provided three types of incentives. The first was to provide those states that did enter into regional compacts with monetary incentives. The second was to allow states hosting disposal sites to im- pose substantial surcharges for waste disposal on those states that failed to comply, and, after 1990, to deny non-compliant states access to disposal facilities. The third incentive provided that if a state was unable to provide for disposal of its waste by 1996, then the state could be required to take title of the waste from the waste generator and take possession of the waste. In addition, the state would be liable for any damages incurred by the waste generator resulting from the fail- ure of the state to take the waste. In 1990, the State of New York filed suit claiming that the 1985 amendments were in violation of various provisions of the Constitution. Although the State of New York initially lost the case, U.S. Supreme Court agreed to hear the State's case on appeal and ultimately ruled in favor of the State on some of the issues raised (State of New York v. United States, 488 U.S. 1041 (1992~. The Court noted that although Congress may encourage, or provide incentives for, states to regu- late in a particular way, it could not coerce a state into action. The Court went on to find the first and second incentives provided in the 1985 amendments to be permissible under the Constitution. However, the Court also found the third incentive to be constitutionally prohibited coercion in which Congress attempted to compel the states to regulate low-level waste disposal Thus, the Court struck down the third incentive, while allowing the other two to remain intact to encourage state action. The Court concluded that although the third incentive was prohibited, Congress nevertheless might have many other methods of achieving its goal of regional self-suff~ciency in low-level ra- dioactive waste disposal. However, in more than a decade since the Court's ruling, Congress has not revisited this issue. s See . 22 Interim Report

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EVOLUTION OF THE RISK CONCEPT FOR CONTROLLING LOW- ACTIVITY WASTES Risk floes not explicitly appear in current statutes or regulations that control LAW; rather risk is an evolving concept that is receiving increased attention by policy makers, regulators, and members of the public. This section provides a brief history of the concept's initial development from racliation dose-based regulations. ~ its final report the committee will address the concept of risk and options for using risk to better inform future regulatory policies for low-activity wastes. As noted earlier in this chapter, the Atomic Energy Act of 1946 (McMahon Act) was intended! to ensure security of nuclear materials rather than to control their hazards to workers or the public. The earliest controls for releases of radioactive materials from li- censed activities, in air or water effluents, were set by the AEC in 10 CFR Part 20 These control levels for inctiviclual radioisotopes were set with the idea of controlling the expo- sure of the persons closest to the site, baser! on directly measurable effluents at the site boundary for liquid effluents or the point of release for gaseous effluents. International principles for radiation protection were adopted as part of applying the effluent limits, including the ALARA principle This principle is followed when ra- dioactive releases are not only controller} to strict limits, but are also controlled so that releases, or exposures, are "as low as reasonably achievable" (ALARA). The ALARA principle was applied to effluent control, e.g., to nuclear reactor gaseous effluents through 10 CFR Part 50, Appendix I (1975~. Years later, when the EPA developed new emission limits for radionucTides un- der the Clean Air Act (NESHAPS), 40 CFR Part 61, they were based directly on 10-4 (one chance in 10,000) lifetime risk of cancer death, corresponding to an exposure of about 10 mrern/yr to the maximally exposed individual. ~ retrospect, the EPA concluded that the USNRC programs for fuel cycle facilities, including 10 CFR Part 50, Appendix I, for reactors, provided adequate risk protection and amended the RESHIPS accordingly.6 ~ the early 1980s the USNRC developed an environmental impact statement (EIS) for a typical shallow land disposal site for LLW (NUREG-0945, Final Environ- mental Impact Statement on 10 CFR Part 61, "Licensing Requirements for Land Disposal of Radioactive Waste," USNRC November 1982~. ~ this EIS the requirements for li- censing LLW disposal were developed by analyzing the potential releases from a large burial site containing typical amounts of various forms of LLW, given imposition of the licensing requirements being considered. The measure of impact was not risk directly, but radiation dose to persons near the site boundary, analyzed to occur at any time far 6 EPA's policy is to apply a consistent risk management approach to all of its programs and statutory mandates. CERCLA regulations call for cleanups to achieve a residual lifetime risk of between 1 in 1,000,000 t10-6] and 1 in 10,000 t10-4] (40 CFR 300.430(e)~24(i)(A)~24~. When ap- plied to radiation, EPA considers a dose of 15 mrem/yr over a lifetime to correlate to a risk of ap- proximately 3 x 10- (3 in 10,000), which is considered "essentially equivalent" to the 1 x 10-4 target (OSWER directive 9200.4-18, August 22, 1997~. Following the CERCLA approach, EPA explicitly considers risk implications in other actions involving radiation. In 1989, EPA established airborne emission limits for a wide variety of source categories under the Clean Air Act (NESHAPs), 40 CFR Part 61. EPA's approach to es- tablishing limits required first that an "acceptable risk" level be established with a presumptive limit on maximum individual risk of approximately 1 in 10,000. Interim Report ~ 23

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into the future. This same dose-basis analysis has been adopted by DOE in the Order 435.1gu~dance. - A. . ' 24 / Interim Report