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4 Issues and Findings As described in Chapters 2 and 3, low-activity wastes are regulated primarily on the basis of their origin (national defense, nuclear power, resource recovery) under a patchwork of federal and state statutes put into place over a period of almost six decades. The current system for regulating this waste lacks overall consistency and, as a conse- quence, waste steams having similar physical, chemical, and radiological characteristics may be regulated by different authorities and managed in disparate ways. These dispar~- ties have health, safety, and cost implications, and they may undermine public confidence in regulatory agencies. Table 4.1 summarizes the committee's overview of the radiological hazards as- sociated with low-activity waste and the current regulations that address the hazards. The first three waste categories shown on the table (low-level waste; slightly radioactive solid materials; and discrete radioactive sources) are governed by section ~ le.(l) of the Atomic Energy Act (AEA). They meet the Nuclear Waste Policy Act's exclusionary definition of low-level waste (LLW) (see Chapter 2~. ~ the commercial sector, waste is regulated by the Nuclear Regulatory Commission (USNRC) under 10 CFR Part 61. At Department of Energy (DOE) sites the same types of waste are controlled by DOE Order 435. i . Radiological hazards in these first three waste categories vary greatly, however, and these differences are not adequately recognized by the broad statutory definitions of LLW. Even the USNRC's classification system for LLW (e.g., USNRC Classes A, B. and C) does not completely address these differences. At the low end, radioactivity in the very large volumes of debris, rubble, and soil is so low it is often difficult to measure. Recognizing this, the USNRC has initiated a rulemaking on alternative dispositions for "slightly radioactive solid materials." Both the EPA and USNRC are considering allow- ing the use of hazardous waste landfills for these materials. At the opposite extreme, discrete sources declared as waste are often extremely radioactive and have the potential to produce acute radiation effects and serious contamination incidents. The larger sources exceed USNRC Class C limits on near-surface disposal, and in the absence of a geological repository (e.g., Yucca Mountain if licensed and constructed) have no present means of disposal. The radiological hazards in the last two waste categories in Table 4.1, uranium and thorium processing wastes and naturally occurring radioactive materials (NORM) ~ Landfills for chemically hazardous wastes must meet design and permitting requirements of the EPA, under authority of the Resource Conservation and Recovery Act (RCRA). States can set standards for acceptance of radioactive materials in RCRA landfills when the state has jurisdic- tion. 39

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wastes, arise from the uranium and thorium and their daughter isotopes. While their con- centrations and isotopic distributions may vary, their hazards are roughly comparable. Nevertheless, their regulatory frameworks differ greatly. Uranium and thorium wastes fall under the AEA section ~ 1 end) definition of byproduct materials. If the facilities that contained these wastes were under license by the USER C at the time of the passage of the Uranium Mill Tailings Radiation Control Act (UMTRCA) in ~ 978, their wastes are managed according to the provisions of UMTRCA. Otherwise they may be managed under the Formerly Utilizec! Sites Remeclial Action Program (FUSRAP). Since ore residuals managed under FUSRAP were generated prior to the enact- ment of UMTRCA, the USNRC has determined that it does not have the authority to regulate them; such materials are not prohibited by federal law from disposal in RCRA- permitted landfi~Is. UMTRCA wastes must be disposed in USNRC-licensed facilities. Disposal of pre-1978 ore residuals managed under FUSRAP or other programs can be regulated by the states. NORM ant! technologically enhanced NORM (TENORM) wastes are also regulated by the states, because they are not inclucled in the AEA and therefore not subject to federal regulation. Among the states, NORM, TENORM, and FUSRAP wastes are not regulated consistently. FUSRAP wastes provicle a good example of political and regulatory inconsisten- cies. The Army Corps of Engineers is currently shipping railcar Toads of FUSRAP wastes from St. Louis, Missouri, to the U.S. Ecology facility in Gran~view, Idaho, which is permitted by the state for hazardous chemical wastes and radioactive materials not regulated by the USNRC. Previous FUSRAP disposals in the state-permitted Buttonwil- low, California, hazardous waste landfill encountered severe opposition (see Siclebar 4.11. Another option used by the Corps is disposal at Envirocare of Utah according to that site's USNRC license for AEA ~ le.~2) byproduct waste. DOE has disposed of about 1.5 million cubic meters of waste, which is mostly the same as the St. Louis FUSRAP wastes, at Weldon Springs, Missouri. This DOE facility was not an available option for the Corps. Relative to AEA waste, NORM waste has received little attention from policy makers or the public. Sidebar 4.2 describes a situation in which NORM wastes, generally accepted for disposal at a Michigan landfill, are actually more radioactive than highly regulated LLW from the nuclear industry. In presentations to the committee, the EPA, USNRC, ant! the Conference of Radiation Con~o! Program Directors (CRCPD) clearly expressed the need for recognizing and more consistently controlling the radiological hazards of NORM wastes. 40 Interim Report

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TABLE 4.1 Summary of low-activity waste Hazard,s and Regulations Category RadiologicalHazard Governing Statutes/Regulation~s) Low-level wastes from Mostly short-lived (half- lives on the commercial and de- order of decades) fission and activation fense activities products. Some (e.g., reactor compo- nents, filters) have high specific activ- ity and penetrating radiation. Potential short-term hazards to workers and long-term hazards to the environment if the wastes are allowed to migrate DOE: AEA, 1 1 e.~1), self-regulated Slightly radioactive Mostly short-lived (half-lives on the under DOE Order 435.1 solid materials (debris, order of decades) fission and activation rubble, and contami- products in large volumes of steel nated soil from facility concrete, other construction materials COMMERCIAL AEA, 1 le. (13' decommissioning and and soils. Low hazards to workers but USNRC or state regulated cleanup) potential long-term hazards to the en- --1 OCFR6 1 Classes A, B. and C per vironment if the wastes are allowed to Part 61 55 migrate. --Greater-than-Class C is responsi- bility of DOE to receive and dispose Discrete radioactive Mostly short-lived (half-lives on the of with USNRC approval. sources declared as order of decades) fission products of waste high specific activity. Potential short- term hazards to individuals and to the environment if the sources should make their way into metal recycle facilities or if they are allowed to rni- grate from waste disposal facilities. Uranium and thorium Very long-lived parent and daughter Defense waste, pre-1978: not di- ore processing wastes isotopes. Low specific alpha activity rectly regulated and little penetrating radiation. Low hazards to workers, but potential long- Defense waste post-1978: term hazards to the environment If the ' radionuclides are allowed to migrate --UMTRCA, Title I in particular radon gas and its daugh- --1 OCFR40, Appendix A ters, which constitute an inhalation --small quantities, under DOE Order hazard. 435. 1 Commercial waste, post-1978: --UMTRCA Title II --1 OCFR40, Appendix A Naturally occurring Very long-lived parent and daughter DOE: DOE Order 435.1 and technologically isotopes. Low specific alpha activity --DOE M435.1-1, IV B.~3) covers enhanced naturally and little penetrating radiation. Low accelerator-produced waste occurring radioactive hazards to workers, but potential long- --DOE M435.1-1 IV B.~4) covers materials (NORM and term hazards to the environment if the 1 1 e `2' and NORM TENORM wastes). rad~onucl~des are allowed to remigrate, in particular radon gas and its daugh- ters, which constitute an inhalation Other: States have authority hazard. --CRCPD has recommended Part N for specific regulations. Interim Report 41

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SIDEBAR 4.1 ARMY CORPS OF ENGINEERS FUSRAP ISSUES . . . . . The U.S. Army Corps of Engineers is responsible for remediating 21 sites that contain 1-2 million cubic meters mainly of uranium-contam~nated soils and debris. The USNRC does not license or otherwise regulate: pre-1978 ore processing residuals at facilities that were not under license by the USNRC in 1978 or thereafter, or residuals of ores processed for other than their source material content (i.e., non-AEA section 1 1 e.~2) material). While the Corps believes the USNRC's legal position is correct, the position is questionable from a health, safety, and environmental perspective. Standards of individual states that control the residuals vary considerably. The above-listed residuals are radiologically and chemically similar and present similar or identical hazards to 1 le.~2) byproducts, which are controlled by the USNRC. The radiological similarity between 1 le.~2) byproducts and pre-1978 residuals has led some to reject He USNRC determination that the pre-1978 residuals do not come under material regulated by the USNRC and are not low-level radioactive waste. The Corps has disposed of building rubble contaminated with pre-1978 residuals at He Bu~onwil- low, California, hazardous waste disposal facility. This practice was criticized in the belief Hat the materials should only be disposed in a USNRC licensed facility. "When I learned that the Corps had disposed of 2,200 tons of radioactive waste in an unlicensed hazardous waste facility..., I was shocked." Senator Barbara Boxer, Transcript, Hearing of the Senate Environment and Public Works Com- mittee, July 25, 2000 [emphasis added the facility was permitted to receive these materials, but not licensed]. FINDINGS In general, the committee believes that there is adequate statutory and institu- tional authority to ensure safe management of low-activity wastes, but the current patch- work of regulations is complex and inconsistent which has led to instances of ineff- cient management practices and perhaps in some cases increased risk overall. Existing authorities have not been exercised consistently for some wastes. The system is likely to grow less efficient if the patchwork approach to regulation continues in the fu- ture. Finding ~ Current statutes and regulations for low-activity radioactive wastes provide ade- quate authority for protection of workers and the public. In its fact-finding meetings, site visits, and review of relevant literature, the committee found no instances where the legal and regulatory authority of federal and state agencies was inadequate to protect human health. This finding is consistent with that of previous studies by the National Academies and the National Council on Ra(lia- tion Protection and Measurements (NCRP) `described in Chapter ~ (NCRP, 2002; NRC, 42 Interim Report

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SIDEBAR 4.2 NUCLEAR POWER WASTE VERSUS NORM The Big Rock Point (BRP) nuclear power plant, located in northern Michigan is in the midst of decommissioning. In 2001, BRP officials approached the USNRC, seeking approval for disposing of large quantities of concrete rubble from the decommissioning project in a municipal landfill in northern Michigan. They proposed a waste characterization and monitoring protocol that would assure that no con- crete rubble would go to the landfill if any appreciable quantity of radioactivity were present. All surfaces would be scanned for contamination at predetermined release limits. Any contamination would be removed. Then, the concrete would be rubbleized and bulk scanned. A 5 picocurie above background per gram of rubble cut-off value for approving or rejecting a particular load would be established. The USNRC approved the proposal under the authority of 10 CER section 20.2002, which gives USNRC the authority to approve disposal for LLW other than in a licensed LLW facility. The plan also was approved by the Michigan Department of Environmental Quality The BRP personnel worked closely with the landfill owner and the township board in the rural community where the landfill is located, to assure all that the disposal of their decommissioning waste would be fully protective of the environment and the public. . In general, BRP efforts were fairly successful in assuaging public concerns, though some reluctance to taking nuclear power plant waste remains in the minds of some local community residents and township board mem- bers. Michigan Department of Environmental Quality representatives had pointed out that there are other things going into the landfill that contain more radioactive material than the rubble. In fact, the coal ash that is used as daily cover for the cells show radioactive material concentrations in the range of 13 picocuries of radium per gram of ash. Recently, the landfill operator installed portal monitors at the landfill, in preparation for accepting the decommissioning rubble. However, the portal monitor alarm has been tripped when certain loads of oil- and gas-production sludges and coal ash have been brought to the landfill. This mate- rial has been coming to the landfill for years, without any recognition of its radiological content. The landfill operator is developing operational procedures for determining when to refuse a load, which has tripped the portal alarm. The Michigan Low-Level Waste Authority has requested, and the landfill operator has agreed, to keep a log of all shipments that trip the portal alarms, to de- velop a better sense of radioactive materials entering the landfill. (Source: Michigan Department of Environmental Quality) . .. 1 999a' 2002a). Some states' however' have chosen not to exercise regulatory authority over NORM and TENORM wastes. The USNRC has determined not to regulate certain pre-1978 uranium and thorium wastes. The EPA has so far not exercised its authority un- der the Toxic Substance Control Act to regulate non-AEA radioactive wastes. ~ adcti- tion, some wastes have not been adequately controlled in spite of the existence of regula- tory authority. The EPA estimates that some 30,000 "orphan" sealed radioactive sources have disappeared from regulatory control, and notes that since 1983 there have been 26 recorded meltings of sources that were inadvertently mixed with scrap steel.2 These inci- dents have been expensive, lee! to very conservative practices in the steel ant! nuclear in- 2 The Orphan Sources Initiative is described at . Interim Report 43

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Busbies, and fueled public distrust in the regulatory system (HPS, 2002; NRC, 2002a; Turner, 2003). Finding 2 The current system of managing and regulating low-activity waste is complex. It was developed under a patchwork system that has evolved based on the origins of low-activity waste. ~ its information-gathering the committee received a clear message from agen- cies responsible for managing and regulating low-activity waste: A more consistent, sim- pler, performance-based and risk-informed approach to regulation is needed (see Sidebar 4.3~. Many committee members had difficulty in understanding the regulations well enough to discuss the system and its applications, as noted in Chapter 1. Similarly, the NCRP found that the current waste classification systems "are not transparent or defensi- ble" and that the "classification systems are becoming increasingly complex as additional waste steams are incorporated into the system" (NCRP, 2002, p. 651. SIDEBAR 4.3 COMMENTS FROM REGULATORS AND MANAGERS Radiation is radiation. Make decisions based on the radiation in the material and not based on the regulatory box of the material. Southeast Compact Commission DOE would benefit from a more uniform approach to waste management, particularly when DOE uses commercial treatment and disposal. Department of Energy Suggest improvements in management and oversight activities to achieve the greatest risk reduc- tions with available resources. Environmental Protection Agency Consistent, national standards for classifying radioactive materials such as pre-1978 ore process- ing residuals, oil and gas drilling wastes, and other NORM or TENORM, independent of pedi- gree... Army Corps of Engineers Address more consistent and harmonized regulation of like materials that fall under different regu- latory regimes; identify and address opportunities for more risk informed disposal of low-activity wastes. Nuclear Regulatory Commission These comments were made by sponsors of this study at the first committee meeting (see Appen- dix A). Fin(lings 3 and 4 Certain categories of low-activity waste have not received consistent regulatory oversight and management. Current regulations for low-activity waste are not based on a systematic considera- tion of risks. Regulations focused on the wastes' origins have led to inconsistencies relative to their likely radiological risks. Naturally occurring and technologically enhanced natu- rally occurring radioactive material (NORM and TENORM) are not regulates] by federal 44 Interim Report

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agencies because they do not fall under the Atomic Energy Act State regulation of these wastes is not consistent. Nevertheless, these wastes may have significant concentrations of radioactive materials compared to some highly regulated waste streams. For example, NORM wastes routinely accepted at a fancify triggered a radiation monitor intenclect to ensure that rubble from a clecommissioned nuclear reactor meets very strict limits on its radioactivity (see Sidebar 4.2~. Uranium mining and processing wastes, which are radiologically similar to NORM wastes, are regulated under federal authority by their status at the time UMTRCA was enacted. There are no fecleral regulations that prohibit ore processing residuals at facilities that were not uncler license by the USNRC in 1978 or thereafter from being clis- posed in hazardous waste facilities, but mill tailings regulated by the USNRC uncler UMTRCA, which may be radiologically identical to pre-1978 residuals, are prohibited! from being disposed in such facilities. The disposal of FUSRAP waste in a hazardous waste facility in California has been the subject of much recent discussion in Congress, the media, and the regulatory community. In addition to inconsistencies in regulating the radiological risks, current low- activity waste regulations generally overlook trade-offs between radiological and non- radiological risks. Hundred-thousanct-cubic-yarc! volumes of slightly contaminated soil and debris and very heavy reactor components are being transported long distances for disposal. In developing current requirements for how low-activity wastes are managed or clisposed, worker risks in excavating, loading, and unloading large-volume wastes; risks of transportation accidents; ant! environmental risks and costs (e.g., consuming large amounts of fossil fuel) have not been analyzed ant! compared in a systematic way to ra- ctiological risks. PUBLIC CONCERNS REGARDING LOW-ACTIVITY WASTE: AN ISSUE FOR THE FINAL REPORT On beginning this study, the committee was aware that there is persistent and widespread public concern with all aspects of radioactive waste management and dis- posal (NRC ~ 996, 200 ~ a, 2002a, 2003; GAO, ~ 999; DunIap et al., ~ 993~. During the committee's open sessions, members of the attending public expressed considerable lack of Bust in the Tow-activity waste regulatory system due to its complexity, inflexibility, and inconsistency. These factors have apparently raised doubts about the sys- tem's capability for protecting public health. The key concerns raised in the open ses- sions~is~ust of regulatory institutions and processes, the complexity of the problem, apprehension about risks, and the desire for greater stakeholder and public involvement is consistent with a large and growing literature on public views of radioactive wastes and how to manage them (DOE, 1993; DunIap et al., 1993; SIovic, 1993; Rosa ant! Clarke, 1999; Cvetkovich et al., 2002; Mohanty and Sagar, 2002; NRC, 2003~. The task of this interim report was to develop an overview of current regulatory and management practices for low-activity waste, and thus set the stage for the commit- tee's final report, which will assess policy and technical options for improving the current practices. The assessments will include risk-informed options, and the committee strongly believes that issues of public trust and risk perception will be important consic3- erations in the final report. Interim Report 45