Risk and Decisions About Disposition of Transuranic and High-Level Radioactive Waste (2005) / Chapter Skim
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3 Exemption Process
3 Exemption Process
Pages 61-86
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From page 61... ...
waste streams in Chapter 2 and the legal standards applicable to them demonstrate that the Department of Energy's (DOE's) existing HLW and TRU waste include a wide spectrum of types and amounts of radioactivity, in many physical and chemical configurations.
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From page 62... ...
As discussed in Chapter 1, the committee does not express an opinion on the issues currently being litigated concerning the validity of exemptions from the HLW definition. The committee assumes, however, that for both HLW and TRU waste a formal exemption process of the kind recommended here will require some kind of formal authorization by the appropriate authority -- legislative, regulatory, or judicial.
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From page 63... ...
3.1 THE PROBLEM: INFLEXIBILITY IN PURSUING APPROPRIATE MANAGEMENT STRATEGIES The existence of inflexibility concerning disposal strategies for HLW is based on the committee's understanding of the wastes that were examined, the capabilities of current technologies, and the present regulatory system as interpreted by the courts. The Problem of Inflexibility The need to manage all HLW by disposal in a permanent geologic repository and the strong preference for disposing of TRU waste in the same manner represent extremely expensive options, and, indeed, push or exceed the limits of technical feasibility in some cases.
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From page 64... ...
Like all rules, an inherent part of the definitions of HLW and TRU waste is that they are under- and overinclusive with respect to particular waste streams. For example, the definition of TRU and the consequent requirement of permanent geological disposal may be overinclusive with respect to some buried TRU waste in very arid and controlled environments where radionuclide migration is expected to be small as a result of the absence of water and intrusion not being expected because of institutional controls and minimal pressures from human activities.
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From page 65... ...
As is plain in the discussions of the exemption process in Section 3.2 of this chapter and of a risk-informed process in Chapter 4, flexibility in classification will require careful consideration of the characteristics, especially as they relate to risk, of alternative disposal options. The existing system for managing HLW and TRU waste is inflexible because it is based on a system of categories with predetermined consequences.
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From page 66... ...
establish formal standards for exemptions. In this section, these options are discussed mainly as they apply to HLW, because no valid exemption currently exists for some HLW (a valid exemption does exist for TRU waste, as discussed above)
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From page 67... ...
A high degree of reliance has built up with the existing system- disposition decisions, treatment methods, investment in infra structure (in the billions of dollars) , compliance agreements, and so on.
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From page 68... ...
Such an endeavor is worth pursuing only if a study to identify waste streams that might benefit from a thor oughly revised definition of HLW shows that the adverse impacts of the existing HLW definition are sufficiently pervasive so that the effort is warranted.
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From page 69... ...
The committee declines to follow this route, however. For reasons stated in Chapter 2, the general definitions of HLW and TRU waste may well be too rigid, at least for some waste streams, so some effort to be more precise is probably "worth it" in terms of administrative complexity.
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From page 70... ...
. Back-End Adjustments: Ad Hoc Exemptions or a Formal Exemption Process The third and fourth options involve an exemption or "back-end adjustment" process for obtaining relief from the disposal requirements of the HLW definition (Shapiro and Glicksman, 2003)
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From page 71... ...
EPA to obtain a Sidebar 3.2: Variances: An Example From the Clean Water Act A good model for exceptions is Congress' response to a decision of the Supreme Court that ratified a measure of discretion that the U.S. EPA claimed for granting exemptions for toxic water pollutants (CMA v.
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From page 72... ...
Under its self-regulation powers, DOE sought to create a process whereby it could declare some waste from HLW tanks to be "waste incidental to reprocessing" (DOE Order 435.1) that would not require permanent geologic disposal.
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From page 73... ...
Option 4; Establish Standards for Exemptions: A Formal Exemption Process The fourth option, and the one the committee endorses, is a formal, defined, and transparent exemption system that uses risk to human health as a basis or starting point. A clearly defined exemption process with clearly defined standards can help avoid irrational or counterproductive results, while at the same time retaining the basic efficiency of general rules.
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From page 74... ...
Through a site-specific process known as delisting, a waste handler can submit to an EPA Region or state a petition dem onstrating that even though a particular waste stream generated at its facility is a listed hazardous waste, it does not pose sufficient hazard to merit RCRA regulation. For example, a waste generated at a specific facility may meet a list ing description even though the process uses different raw materials than EPA assumed were used when listing the waste, thus the waste may not contain the contaminants for which it was listed.
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From page 75... ...
Considering the characteristics of the waste itself, the three wastes identified by the committee suggest, on the basis of a relatively cursory examination, the utility of alternatives to permanent geologic disposal for some waste forms, because they exhibit the following characteristics: · They appear to be relatively low in radioactivity, and/or hazard compared to other HLW and TRU waste that DOE manages, and perhaps could be managed in some manner other than disposi tion in a deep geologic repository. · For some of these wastes it is infeasible to recover and dispose of every last bit of waste that might conceivably be classified as TRU or HLW.
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From page 76... ...
. An alternative to permanent geologic disposal, therefore, might be preferable for these waste types.
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From page 77... ...
Nor should they undermine either the classification system or the preference for permanent geologic disposal embodied in present laws and regulations. The first step, therefore, is to identify the reasons for which an exemption may be sought (see Sidebar 3.3)
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From page 78... ...
. Of the permitted reasons for an ARAR waiver, three are of direct relevance to the difficulties of managing the HLW and TRU waste streams discussed in Chapter 2: · Compliance with the requirement will result in greater risk to hu man health and the environment than other alternatives, · Compliance with the requirement is technically impracticable from an engineering perspective, · The alternative will attain a standard of performance that is equivalent to that required under the otherwise applicable stan dard, requirement, or limitation through use of another method or approach (40 CFR § 430(f)
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From page 79... ...
Second, the exemptions should be special, unusual circumstances. If most or even a major portion of the HLW or TRU waste streams were legitimately granted exemptions, it would call into question the validity of the general rule, as discussed below.
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Finally, if it turns out that most of the waste streams in fact meet the exemption criteria, then this should be a signal that the baseline rule is fundamentally flawed, and a responsive regulatory system will take that as a signal that a more thorough review of the classification system is required. DOE can assess the anticipated number of HLW and TRU waste exemptions and, if it appears exemptions are not few in number, indicate that a more general fix may be warranted.
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From page 81... ...
in which permanent geological disposal either does not decrease or even increases risk. 7The National Research Council has explored these issues in detail in numerous reports (see Appendix A)
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From page 82... ...
come forward with sufficient credible data to support its claims and (2) persuade a decision maker that the grounds and criteria for an exemption have been met and that an exceptional situation has been demonstrated.
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The U.S. EPA would appear to be the most obvious regulator for TRU waste, because it is already the decision maker identified by law and has worked extensively with such waste at the Waste Isolation Pilot Plant.
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From page 84... ...
Conversely, if DOE is unable to convince the exemption decision maker that an exemption is justified, it has no basis for approaching the states to renegotiate. Recommendation 1: The nation should pursue a formal, wellstructured, risk-informed approach to consider what parts of the waste types enumerated in Finding 3, if any, should be disposed in some manner other than deep geologic disposal.
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From page 85... ...
EXEMPTION PROCESS 85 Recommendation 2: DOE should not attempt to adopt these changes unilaterally. Likewise, the exemption process that the committee recommends must be implemented in the context of DOE's existing or renegotiated compliance agreements.
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