Improving the Regulation and Management of Low-Activity Radioactive Wastes (2006)

Wastes that contain small concentrations of radioactive materials arise from national defense, private industries, medicine, and research. Some of these wastes are produced by enterprises that use nuclear materials or ionizing radiation, while other wastes arise incidentally in non-nuclear enterprises such as natural resource recovery and water treatment. These low-activity wastes (LAW) are controlled by a regulatory patchwork that has evolved over almost 60 years to include a number of federal and state agencies. Laws, statutes, and regulations that control LAW are based primarily on the type of enterprise that produced it—the origin of the waste—rather than the waste’s intrinsic radiological hazard.

LAW present less of a radiation hazard than either spent nuclear fuel or high-level radioactive waste. However, LAW may produce potential radiation exposure at levels above background that if not properly controlled may represent a significant chronic (and in some cases, an acute) hazard. For some LAW, the patchwork system of controls may be overly restrictive, providing only limited and expensive options for their management and disposal. On the other hand, the patchwork may result in the relative neglect and less control of other LAW that pose an equal or higher risk.

With this report, the committee¹ completes a two-part study to assess and recommend technical and policy options for improving practices for

regulating and managing LAW. The committee finished the first part of its study with an interim report published in late 2003. The interim report addressed the first two items of the committee’s task statement (see Sidebar 1.1) by providing an overview of LAW characteristics, inventories, management and disposal practices, and the federal and state regulations that control these wastes. The interim report is reproduced in Appendix A and summarized in the next section. Readers who seek background information on the topics discussed in this report should refer to Appendix A.

Federal authority for controlling nuclear materials dates back to the McMahon Act of 1946, enacted during the early period of development of nuclear weapons. Its successor, the Atomic Energy Act of 1954 (AEA), as amended, is the basis for today’s federal control of nuclear energy-related enterprises and their wastes. However, a substantial portion of low-activity radioactive wastes comes from enterprises not regulated under the AEA, and their control devolves to state authorities.

Dividing the control of radioactive materials according to whether an AEA or non-AEA enterprise produced them began the evolution of the patchwork of regulations that today control LAW in the United States. Some of the more salient features of the origin-based patchwork are the following:²

• A large volume of AEA wastes falls under the statutory definition of low-level waste (LLW). The definition, however, is by exclusion—LLW are those not otherwise defined (e.g., as high-level waste, transuranic waste, or certain byproducts from uranium mining and milling).

• The Nuclear Regulatory Commission (USNRC), which regulates commercial uses of nuclear energy, subdivides LLW into Classes A (disposable with the least controls), B, and C that are deemed suitable for near-surface land disposal; and “greater-than-Class C,” which currently has no disposal pathway.³

• Under the AEA, the Department of Energy (DOE) self-regulates LLW disposal at its own sites. DOE’s orders for radioactive waste management and disposal are generally consistent with USNRC regulations, although DOE does not use the USNRC’s subdivisions of LLW.

• Another large volume of AEA wastes results from the processing of uranium and thorium ores for nuclear energy applications. Generally speaking, wastes from the milling and extraction of uranium that were generated after 1978 are regulated by the USNRC, while pre-1978 wastes may be regulated by DOE, USNRC, or individual states.

• Regulations for non-AEA wastes, such as wastes that contain naturally occurring radioactive materials (NORM), vary considerably among the states. Nationwide, million cubic meter volumes of NORM wastes result from mining and oil and gas production each year.

To develop its interim report, the committee found it useful to take a step back from the present system of origin-based regulations and to look more closely at the wastes’ radiological properties. This approach led the committee to divide the spectrum of LAW into five categories to serve as reference points for identifying and assessing options for improving the current practices (see Sidebar 1.2). The categories were not intended as a proposal for a new waste classification scheme but rather served the committee as a way to highlight inconsistencies between the wastes’ radiological hazards and their regulation.

Although they are all legally defined as LLW, the wastes that comprised the committee’s first three categories have very different radiological and physical characteristics. First of all, there are the wastes that fit appropriately into the USNRC classification system (e.g., Classes A, B, and C), such as those disposed at Barnwell (Chem-Nuclear/Duratek Disposal Systems), Hanford Washington (US Ecology), certain Class A wastes disposed at Clive Utah (Envirocare of Utah),⁴ and wastes in typical DOE “burial grounds.”

Second, there are the very large volumes of debris, rubble, and contaminated soils from DOE and commercial nuclear facility decommissioning and site cleanup that produce very low levels of radiation. They fall at the very low end of Class A but cannot exit the nuclear regulatory system⁵ because the statutory definition of LLW has no lower boundary.

Third, there are out-of-service radiation sources (often called “sealed sources”) that typically contain pure or highly concentrated radioactive materials from industrial, medical, and research applications. They can emit levels of radiation sufficient to cause high individual exposures or lead to serious contamination incidents if they are improperly handled. Some of these sources exceed USNRC Class C but nevertheless meet the AEA definition of low-level waste.

The last two of the committee’s five categories described in the interim report recognize the large volumes of wastes that contain uranium, thorium, and/or their radioactive decay products (progeny). Among these wastes, those that arise from the recovery of uranium and thorium for nuclear energy applications are legally defined as “byproduct” wastes in section 11e.(2) of the AEA. They are subject to federal control. Wastes that arise in mining, oil and gas production, coal burning, and other enterprises not related to nuclear applications can also contain uranium, thorium, and/or their progeny. These wastes are not included in the AEA, and at present their control is left principally to individual states.

Viewing the current LAW system in the context of these five categories led the committee to its findings that current statutes and regulations for low-activity radioactive wastes provide adequate authority for protection of workers and the public, but that the current system is complex, inconsistent, and does not address risks of the various LAW systematically (see Sidebar 1.3).

The task of this final phase of the study was to assess technical and policy options to improve regulatory and management practices for LAW.

In seeking ways to improve the system, the committee confronted the fact that the present origin-based system is the product of years of evolution involving many interactions among federal and state regulators, waste generators, and concerned citizens.

The DOE has managed and disposed of large volumes of LAW at its own and commercial sites since the Manhattan Project. The Low-Level Radioactive Waste Policy Act, enacted in 1980 and amended in 1985 (LLRWPA), was a major effort by Congress to significantly revise private-sector practices by making each state (or regional compacts of states) responsible for disposing of its own commercially generated LLW.

The LLRWPA and other attempts to improve the system met with only limited success. Presently commercial waste generators have only a few disposal options that often result in large volumes of waste being shipped long distances for disposal. The planned closure of the Barnwell site in 2008, which could leave generators in more than 30 states without access to disposal for USNRC Class B and C wastes, is discussed in Chapter 2.

During the committee’s open sessions, statements from public interest organizations and some members of the attending public expressed considerable lack of trust in the LAW regulatory system due to its complexity, inflexibility, and inconsistency. This lack of trust has apparently raised doubts among some members of the public about the current system’s capability for protecting their health.

The committee, however, noted that there are few incentives for policy makers to become involved in LAW issues. Policy makers have necessarily focused their attention on high-level waste issues and the potential for misuse of nuclear materials (Wiley, 2005). The USNRC recently suspended rulemaking on alternative ways to disposition slightly radioactive materials citing these higher priorities. The 2005 Energy Policy Act extended AEA control of concentrated (discrete) NORM and accelerator-produced radioactive materials, but did not address low-activity (diffuse) forms of these materials. Nonetheless, there remain a number of important U.S. and international initiatives by regulators and other organizations that could improve current LAW practices. These initiatives are discussed in Chapter 2.

During the course of this study the committee came to the conclusion that a “risk-informed” approach would provide the best option for improving LAW regulation and management practices in the United States. A risk-informed approach is based on information provided by science-based risk assessment but includes stakeholders as a central component in decision making. Basing regulatory decisions and actions on the actual radiological hazards presented by the wastes themselves—rather than their origins—could provide the basis of a consistent framework for man-

aging and disposing the various types of LAW, and decisions within that framework would involve all stakeholders. Chapter 3 begins with an overview of risk and the use of risk assessment, develops the concept of risk-informed decision making through broad stakeholder participation, and ends with the committee’s vision of a risk-informed framework for regulating and managing LAW.

Another challenge for the committee was to agree how to move from the present origin-based system to a risk-informed system. Throughout its information-gathering activities, the committee heard a nearly unanimous opinion from congressional staff, regulators, generators, and public stakeholders that a sweeping conversion of the present origin-based patchwork of regulations and practices to a coherent system that uses risk as a basis for managing these wastes (i.e., a risk-informed system) would in principle be most desirable (see Sidebar 4.3 of Appendix A). The same presenters, however, cautioned that such a change would be virtually impossible given the long history and investment in the regulatory and operational infrastructure of the current system, the disruption that a sweeping change could cause, and the lack of political will to effect such a change.⁶ Views varied widely about the urgency of changes and how to make them.

In its own discussions the committee focused on broad approaches to implementing risk-informed practices, well aware of the very contentious nature of radioactive waste issues in general, the apparent lack of progress in resolving these issues during the past 25 years or more, constraints imposed by the current laws and regulations for LAW, and federal and private investments in the present infrastructure. Options evaluated by the committee included sweeping legislative changes by Congress such as revision of the LLRWPA and the basic definition of LLW, adoption of internationally agreed-upon dose- or risk-based standards such as those developed by the International Atomic Energy Agency, and implementing changes under currently existing regulatory authorities.

Considering that the LLRWPA generally failed to meet the objectives envisioned by Congress and the perception of lack of political will to revisit such broadly targeted legislation (Leroy, 2004), the committee generally discounted the sweeping change option. Clearly there are opportunities where specific changes will require legislative action. The committee found important benefits from greater use of international standards and practices.

The committee concluded that components of each of the above options can and should be used to implement risk-informed LAW prac-

tices. Chapter 4 describes a practical, tiered approach for regulatory agencies to make risk-informed changes under their existing authorities, relying on congressional remedies only when necessary. The committee distinguishes between the current “patchwork” approach of regulating, when the need arises, new or altered waste streams according to the enterprise that produced them, and the committee’s suggested “tiered” approach in which regulatory changes are directed toward controlling wastes according to their intrinsic radiological properties—their appropriate level of control being determined through a risk-informed process in each instance.

Because implementing a risk-informed system is not the sole responsibility of regulators, Chapter 4 also describes responsibilities and opportunities for industry and public stakeholders in implementing the system. The concepts and approaches set out in Chapters 3 and 4 provide the basis for a developing an integrated LAW strategy, which the committee recommends in Chapter 5 along with other recommendations for improving the current system.