Energy Department Reclassifies High Level Waste to Avoid Cleanup

Geoffrey Fettus, 202-289-2371

Over the past 50 years, U.S. nuclear weapons facilities have generated some 100 million gallons of high-level radioactive waste. In 1982, Congress passed the Nuclear Waste Policy Act, which requires the Department of Energy to dispose of this waste in a deep, geologic repository. Although the government recently selected a site in Nevada for burying this waste, it still sits in more than 200 massive underground storage tanks at three DOE sites: the Hanford Reservation in Washington near the Columbia River, the Idaho National Engineering and Environmental Laboratory (INEEL) above the Snake River Aquifer, and the Savannah River Site in South Carolina.

Managing these tanks is DOE's most expensive and technically complex problem. The agency has considered numerous plans and implemented some, including transferring pumpable liquids from single-shelled tanks to double-shelled tanks at Hanford; heating the waste to convert it to a powdery form, a process called calcining, at INEEL; and vitrifying the waste -- stabilizing it by mixing it with molten glass -- in anticipation of burying it in a geologic repository. Regardless, hundreds of thousands of gallons of high-level radioactive waste have leaked from these storage tanks into the environment.

DOE now is trying to exploit a loophole in its rules to violate the Nuclear Waste Policy Act, allowing it to leave high-level radioactive at the three sites, which would seriously threaten public health and the environment.

The Loophole in Order 435.1

In 1999, after nine years of study and comment, DOE adopted Order 435.1, the agency's internal regulatory tool for managing its radioactive waste. The order includes a provision allowing DOE to reclassify high-level radioactive waste as "incidental" waste. The agency now is using this loophole, the incidental waste exemption, to enable it to permanently abandon thousands of gallons of high-level radioactive waste at Hanford, Savannah River and INEEL.

The way the incidental waste exemption works is simple. With this exemption, DOE gave itself the authority to reclassify high-level radioactive waste that remains in storage tanks after some of the liquid waste has been pumped out. By renaming the remaining waste "incidental" waste, the agency does not have to bury it in a geologic repository as required by the Nuclear Waste Policy Act. Instead, the agency can treat it as if it were low-level radioactive waste, leave it in the storage tanks and fill the tanks with concrete. The major flaw in the plan is this abandoned "incidental" waste is at least as radioactive -- if not more radioactive -- than the high-level radioactive waste the agency removes from the tanks for disposal in a geologic repository. Even so, the agency has begun this process at the Savannah River site, where it has poured concrete into two tanks of this highly radioactive waste.

DOE's plan creates three national sacrifice zones for high-level radioactive waste. Leaving tens of thousands of gallons of high-level radioactive waste in INEEL, Hanford, and Savannah River waste tanks will result in a potentially catastrophic dispersal of radioactivity into the environment and, at a minimum, require significant land-use restrictions, maintenance, and monitoring for thousands of years. The incidental waste exemption is a clear violation of the letter and spirit of the Nuclear Waste Policy Act, whose goal is to ensure that high-level radioactive waste does not "adversely affect the public health and safety and the environment for this or future generations."

The Litigation

In February 2002, NRDC (the Natural Resources Defense Council), the Idaho-based Snake River Alliance, and the Yakama and Shoshone-Bannock nations, sued DOE for violating the Nuclear Waste Policy Act by issuing Order 435.1 and its incidental waste exemption. NRDC et al . filed its complaint in the federal district court in Boise, Idaho. DOE responded by filing a motion to dismiss in May 2002. After oral argument on the motion to dismiss, Chief Judge Lynn Winmill denied DOE's motion to dismiss and found for NRDC on all jurisdictional and procedural matters. NRDC and its coplaintiffs, DOE, and four states that have entered the case as "friends of the court" (Idaho, Oregon, South Carolina and Washington) are currently writing their briefs on the legality of the incidental waste exemption. The plaintiffs filed their motion for summary judgment on January 22, 2003. DOE is expected to file its own motion on February 22, 2003. The states are expected to file their "friend of the court" brief(s) on March 4. Oral argument will take place in Boise on May 9, 2003.

The Impact

The environmental, public health and fiscal implications of this case are staggering. The budget for cleaning up the underground tanks is the single largest item in the DOE cleanup program, a program with an annual budget that roughly equals that of the Environmental Protection Agency -- approximately $7 billion. If NRDC et al . prevail in the case, it would dramatically shift the costs of cleaning up high-level radioactive waste. Instead of paying for institutional controls and water treatment systems in perpetuity for national sacrifice zones, the agency would have to devise a more comprehensive plan to clean up and remove the waste. This would likely cost more over the short term, but much less when the cost is amortized over 250,000 years of dangerous radioactivity.

As a result of this litigation, the Energy Department may ask Congress to amend the definition of high-level radioactive waste to allow it to exempt thousands of gallons of high-level radioactive waste from Nuclear Waste Policy Act requirements. NRDC is concerned that an appropriations or defense authorization bill could be the vehicle for such an effort early this year. Such an act by Congress would sanction DOE's plans, which would have catastrophic, long-term consequences for the environment and public health in Idaho, Oregon, South Carolina and Washington. Moreover, if Congress passes such an amendment, it will undermine its own authority, as well as state authority, to oversee DOE radioactive waste cleanup.

The Natural Resources Defense Council is a national, non-profit organization of scientists, lawyers and environmental specialists dedicated to protecting public health and the environment. Founded in 1970, NRDC has more than 550,000 members nationwide, served from offices in New York, Washington, Los Angeles and San Francisco.

Related NRDC Pages

Press Release, August 12, 2002

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