5
Findings and Recommendations

Throughout its information-gathering activities, the committee received a clear message: A more consistent, simpler, performance-based and risk-informed approach to regulating and managing low-activity wastes (LAW) in the United States is needed. The committee heard nearly unanimous views that a complete conversion of the present origin-based patchwork of regulations and practices to a coherent risk-informed system would be the most desirable way to improve the system. The same presenters, however, cautioned that such a conversion—for example, through congressional action—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.

The committee found no easy solutions. Optimistically, however, Congress, the Nuclear Regulatory Commission (USNRC), the Environmental Protection Agency (EPA), and other organizations are already developing initiatives that, viewed collectively, move toward a more risk-informed system. The initiatives, which were described in Chapter 2, would increase the flexibility and number of disposal options for very low activity wastes while imposing or maintaining consistent controls on more hazardous and concentrated materials.

The committee concluded that while there are no easy solutions, it is possible to move in incremental steps toward a more risk-informed system for controlling management and disposition of radioactive materials. In contrast to the patchwork evolution of the past 60 years, stepwise implementation would move in a constant direction: away from regulating



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Improving the Regulation and Management of Low-Activity Radioactive Wastes 5 Findings and Recommendations Throughout its information-gathering activities, the committee received a clear message: A more consistent, simpler, performance-based and risk-informed approach to regulating and managing low-activity wastes (LAW) in the United States is needed. The committee heard nearly unanimous views that a complete conversion of the present origin-based patchwork of regulations and practices to a coherent risk-informed system would be the most desirable way to improve the system. The same presenters, however, cautioned that such a conversion—for example, through congressional action—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. The committee found no easy solutions. Optimistically, however, Congress, the Nuclear Regulatory Commission (USNRC), the Environmental Protection Agency (EPA), and other organizations are already developing initiatives that, viewed collectively, move toward a more risk-informed system. The initiatives, which were described in Chapter 2, would increase the flexibility and number of disposal options for very low activity wastes while imposing or maintaining consistent controls on more hazardous and concentrated materials. The committee concluded that while there are no easy solutions, it is possible to move in incremental steps toward a more risk-informed system for controlling management and disposition of radioactive materials. In contrast to the patchwork evolution of the past 60 years, stepwise implementation would move in a constant direction: away from regulating

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Improving the Regulation and Management of Low-Activity Radioactive Wastes LAW according to how or when it was generated and toward regulation based on the actual hazard of the material. Risk, as perceived by generators, regulators, concerned citizens, and elected officials, can provide a common basis—a common currency—leading to better cooperation, agreement, and progress for all stakeholders. Recommendation 1 The committee recommends that low-activity waste regulators implement risk-informed regulation of LAW through integrated strategies1 developed by the regulatory agencies. Improving the system will require continued integration and coordination among regulatory agencies including the USNRC, EPA, the Department of Energy (DOE), the Department of Defense (DOD), and other federal and state agencies. While current statutes and regulations for LAW provide adequate authority for protection of workers and the public, current practices are complex, inconsistent, and not based on a systematic consideration of risks. More efficient and uniformly protective management of the risks posed by these wastes will require moving away from the present origin-based regulatory system—a system that is firmly established through decades of practice and involves a number of federal and state agencies that have different authorities. The concepts of a risk-informed system developed in Chapter 3 of this report and the implementation approaches described in Chapter 4 would provide the basis for the strategies, which should incorporate the tiered approach set forth in Recommendation 2. The strategies would include legal, regulatory, and implementation issues at a level of detail greater than could be attempted by this committee. The development and use of integrated strategies would strengthen waste regulators’ ongoing efforts to improve LAW regulation and management practices by Focusing the attention of decision makers at all levels on the needs for and benefits of implementing risk-informed practices, Providing a unified approach to developing risk-informed practices that is recognized by all stakeholders as cooperative and mutually supportive, and 1   By “integrated strategies” the committee means the results of agencies working together to develop a single or joint strategies for using the approach in Recommendation 2 to implement risk-informed practices. Because the regulatory agencies have different legal authorities they may develop separate, but integrated, strategies.

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Improving the Regulation and Management of Low-Activity Radioactive Wastes Promoting harmonization (consistency on the basis of risk) in changes at each of the four tiers discussed in this report. An important purpose of interagency strategies would be to help regulatory agencies balance their use of the four-tiered approach, including instances where targeted legislation2 might be needed if the first three tiers are not sufficient for developing solutions. Chapter 2 of this report described initiatives by the EPA, USNRC, and other organizations that are important steps toward moving from origin-based to risk-informed regulation and management practices. However, some of these individual initiatives are faltering.3 On the other hand, cooperative interagency efforts have made significant progress in improving regulations in areas that are relevant to LAW management and disposal. Examples include development of the Multi-Agency Radiation Survey and Site Investigation Manual (MARSSIM)4 and guidance from the Interagency Steering Committee on Radiation Standards (ISCORS), the latter of which includes eight federal agencies and has the goal of improving consistency in federal radiation protection programs. Development of the integrated strategies should build on the successes of MARSSIM, ISCORS, and similar interagency efforts and make even greater use of such efforts. While it is beyond the committee’s task to prescribe how regulatory agencies should do their work, the committee judges that coordinated leadership by federal agencies will be essential—for example, by following the model of a federal committee such as ISCORS or a similar interagency group to further identify and prioritize risk-informed improvements in regulating LAW. Developing and instituting implementation strategies may require several years, as did the work on MARSSIM. Two areas identified in this study exemplify where risk-informed regulations would improve the current system, and could provide a focus for development of the strategies: Wastes containing uranium or thorium and their radioactive progeny generated by Atomic Energy Act (AEA) and non-AEA-controlled industries pose similar hazards (according to the type and concentration 2   The 2005 Energy Policy Act’s expanded definition of byproduct materials is an example of such legislation. See Chapter 2. 3   The USNRC put its proposed rule “Radiological Criteria for Controlling the Disposition of Solid Materials” on hold due to higher priorities. EPA is considering how to proceed after receiving some 1500 comments on its advanced notice of proposed rulemaking for disposing of certain LAW in landfills—one of the alternatives in the USNRC initiative. 4   See Chapter 4.

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Improving the Regulation and Management of Low-Activity Radioactive Wastes of their radioactivity) but are controlled under very different regulatory regimes. There is no generalized provision for wastes that contain very low concentrations of radioactivity to exit the regulatory system, although there are examples of case-by-case exemption or clearance of some such wastes. The many sectors of the U.S. economy that produce or manage LAW will necessitate that USNRC, EPA, DOE, DOD, other federal agencies, state agencies and their representatives, and citizens and citizens’ groups have roles in developing the strategies. The committee is aware that federal and state agencies each have mechanisms for obtaining citizens’ input into their decision making, but these could be improved as described in Chapters 3 and 4 and Recommendation 3. Recommendation 2 The committee recommends that regulatory agencies adopt a risk-informed LAW system in incremental steps, relying mainly on their existing authorities under current statutes and using a four-tiered approach: (1) changes to specific facility licenses or permits and individual licensee decisions; (2) regulatory guidance to advise on specific practices; (3) regulation changes; or if necessary, (4) legislative changes. The committee advocates a stepwise, “simplest-is-best,” approach to implementing risk-informed LAW regulation and management. Acting under their existing authorities, regulatory agencies and site operators can effect significant changes from the bottom up, beginning with changes to specific facility licenses, permits, or decisions. The balance among these approaches is best determined by the agencies with the authority for regulating LAW. By changing licenses and permits, the burden of moving toward risk-informed practices is shared by generators, facility operators, and regulators. This includes characterizing waste and providing information to the public in advance of regulatory requirements. Good business practices can lead generators toward better waste prevention, minimization, and segregation if there is more flexibility in selecting options for managing and disposing wastes. Effective changes can be made with regulatory guidance, regulations, and new legislation. Regulatory guidance is often developed to provide specific advice regarding practices or interpretation of regulations that define acceptable conditions or requirements. Examples include Branch Technical Positions and Regulatory Guides promulgated by the USNRC.

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Improving the Regulation and Management of Low-Activity Radioactive Wastes Regulations are promulgated to implement controlling laws and statutes. Changes are often small but may occasionally result from larger initiatives. In addition, agencies can and do enter into Memoranda of Understanding (MOUs) to better align and clarify requirements where there is a shared regulatory responsibility. One example is the MOU between the USNRC and EPA on decommissioning requirements for sites containing both radioactive and hazardous materials.5 At the highest level of the four-tiered approach, new legislation should be targeted carefully to address a range of issues and should be balanced against the need for consistency and minimal disruption to established practices in the industry. For example, the Energy Policy Act of 2005 amended the AEA’s definition of byproduct material, which will lead to more consistent regulation of materials that pose similar risks. Recommendation 3 The committee recommends that government agencies continue to explore ways to improve their efforts to gather knowledge and opinions from stakeholders, particularly the affected and interested publics, when making LAW risk management decisions. Public stakeholders play a central role in a risk-informed decision process. When those affected by a decision are involved in the decision-making process, the outcome is generally more accepted and more easily implemented than it would be otherwise. Management and disposal of LAW and other potential environmental hazards have evolved beyond ex post facto announcements by facility operators and regulatory agencies into a deliberative process involving partnerships with the affected and interested publics. The committee is aware of and endorses the public outreach efforts of the DOE, EPA, USNRC, and other governmental and private organizations.6,7 As noted in Chapter 3 and as recognized by the committee, efforts to better include public input into risk conversations have been increasing 5   The MOU between EPA and USNRC on site decommissioning is available at http://www.nrc.gov/reading-rm/doc-collections/news/2002/mou2fin.pdf. 6   For example, the National Mining Association, a trade organization that held its Uranium Workshop in Denver, Colorado, May 24-25, 2005, devoted much of the workshop to public comments on its site remediation work. The workshop included a presentation on the status of this report. 7   The USNRC Division of Waste Management and Environmental Protection Decommissioning Workshop held on April 20 and 21, 2005, as part of the USNRC staff’s initiative to continually improve the licensing process for decommissioning sites and terminating USNRC licensees in accordance with 10 CFR 20, Subpart E.

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Improving the Regulation and Management of Low-Activity Radioactive Wastes since the 1980s. Nevertheless, during the course of this study, the committee was aware of persistent public concern with essentially all aspects of radioactive waste management. There are a number of fundamental problems with current LAW regulatory and management practices that impede communication among affected and interested publics and those responsible for LAW that can be alleviated by implementing a risk-informed system. As noted previously, the current origin-based system is rigid and hard to understand. With risk- rather than origin-based regulatory classification as the primary consideration, a risk-informed system can give a much clearer signal that experts are making a sincere effort to ensure safety and consistency in their practices. Expert judgment is not discounted in a risk-informed system, but other diverse knowledge and opinions are transparently included in decision making. Public input into deciding when a risk is as low as reasonably achievable (ALARA), as discussed in Chapter 3, is one such example. As noted in Chapter 4, countries such as Sweden and France have been generally more successful than the United States in gaining public stakeholder support for siting LAW disposal facilities. Reasons that those stakeholders have been more supportive include greater transparency of decision making, public enfranchisement and participation in decision making, better involvement of elected local officials, and ultimately the ability of local communities to veto an initial site selection. Besides outreach, another way a few government organizations in Europe and the United States have helped public stakeholders become more central in risk decision-making processes is by helping them hire their own technical experts. While agencies with responsibility for LAW in the United States have improved their efforts to involve stakeholders and the public in waste disposal decisions, many citizens continue to perceive those efforts as falling short of their intended goals. A continuing, and innovative effort is needed to understand and address those shortcomings. There needs to be more effort to augment activities that inform the public, such as public meetings, with those that give public and stakeholder participants a more influential and active role in the decision-making process, such as advisory committees, citizen juries, policy dialogues, and facilitated mediations. Strong efforts will be needed when implementing a risk-informed approach to ensure that stakeholders play a central role in the decision-making process. Recommendation 4 The committee recommends that federal and state agencies continue to harmonize their regulations for managing and disposing of AEA

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Improving the Regulation and Management of Low-Activity Radioactive Wastes and non-AEA wastes so that those wastes will be controlled consistently according to their radiological hazards rather than their origins. In the interim report’s overview of LAW, the committee developed five categories that it considered inclusive of the spectrum of LAW and that helped to point out gaps and inconsistencies in present regulation and management practices. Two major inconsistencies stood out: (1) uranium-bearing wastes are subject to different controls by federal or state authorities depending on the enterprise that generated them and, in some cases, when they were generated, even though their risks are comparable; and (2) wastes defined by statute as “low-level wastes” vary widely in their radiological properties, and hence their risks. As discussed in Chapter 2, current initiatives by Congress, regulatory authorities, and other organizations are important initial steps in rectifying them. These initiatives should continue under current regulatory authorities as described in Chapters 2 and 4 and Recommendation 2. Recommendation 5 The committee recommends continued collaboration among U.S. and international institutions that are responsible for controlling LAW. Greater consideration of international consensus standards as bases for U.S. regulations and practices is encouraged. Authorities in the United States can benefit from greater consideration of standards and practices developed internationally. The international community, especially the European Commission (EC) and the International Atomic Energy Agency (IAEA), is making significant progress in developing consistent, risk-based standards for managing LAW. France and Spain have built and operate special facilities for disposing of very low level wastes. International approaches include a number of important elements of a risk-informed system. The IAEA waste classification system is based on the radiological properties of the waste rather than its origins. For very low radioactive material concentrations, EC regulations and IAEA standards provide guidelines for wastes that pose insignificant risks to be cleared or exempted from control as radioactive material. At the high end, wastes with properties similar to wastes from nuclear fuel reprocessing are classified as “high-level wastes.” In the U.S. system, only wastes from reprocessing meet the legal definition of high-level waste, leaving other wastes that might pose similar risks to be defined as “greater-than-Class C low-level wastes.” Uranium-bearing wastes, however, are not included in the IAEA system, which is recognized as a shortcoming. The IAEA is continuing to revise and expand its system.

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Improving the Regulation and Management of Low-Activity Radioactive Wastes If waste management technical experts and regulators develop broad agreement, members of different publics might be more trusting of their ability to ensure safe management and disposal practices. Moving toward risk-informed practices in the United States would be consistent with many international initiatives and could have the net effect of increasing stakeholder support in all countries.