NRDC Calls For Congress To Ensure Oversight Of Doe To Protect Public Health And The Environment

WASHINGTON (March 1, 2005) -- The National Academy of Sciences (NAS) issued a report today concluding that the Department of Energy cannot regulate itself when disposing of highly radioactive waste or shut out state authorities and the public in the decision-making process. The report should prompt Congress to block DOE from abandoning high-level waste in tanks at three sites, force the agency to establish an open, public process when addressing waste disposal issues, and give the Environmental Protection Agency the responsibility to oversee DOE waste disposal activities, according to NRDC (Natural Resource Defense Council).

The NAS study stemmed from a controversy triggered when the DOE granted itself the authority to reclassify millions of gallons of highly radioactive waste as "incidental" waste, enabling it to leave it in tanks at facilities in Washington state, South Carolina and Idaho, instead of moving it to a permanent underground repository. NRDC and others sued to stop the agency from abandoning the waste, but last fall Congress granted DOE the authority to reclassify -- and therefore unilaterally dispose of -- high-level waste in South Carolina and Idaho, but not in Washington or any other state.

"By calling for direct external regulation over DOE's unilateral, ad hoc process of radioactive waste reclassification, the National Academy of Sciences has clearly sent a message that Congress must rein in DOE and address the mess that it has made of nuclear waste cleanup policy," said Geoff Fettus, the NRDC attorney who handled the case.

DOE Changed Definition of Waste to Avoid Adequate Cleanup

DOE is responsible for cleaning up 253 massive underground tanks containing approximately 100 million gallons of liquid and sludge high-level radioactive waste in Washington, Idaho, South Carolina and New York. In 1982, Congress passed the Nuclear Waste Policy Act (NWPA), which requires the DOE to dispose of this waste in a deep, geologic repository. More than a million gallons of this waste have leaked from these storage tanks into the environment.

In 1999, DOE awarded itself the authority to reclassify the high-level nuclear waste in the tanks as "incidental waste," allowing it to apply a substantially less protective standard of cleanup. NRDC and its co-plaintiffs sued, maintaining that DOE is required by the Nuclear Waste Policy Act to dispose of its high-level radioactive waste in a geologic repository. To leave the waste in the tanks and covered in concrete would ensure the waste will eventually leach into the groundwater adjacent to Columbia River in Washington, the Snake River Aquifer in Idaho, and literally into the water table at the Savannah River site.

In July 2003, the chief federal district judge in Idaho ruled that DOE's reclassification scheme was unlawful. The court ruling prohibited DOE from arbitrarily "reclassifying" high-level radioactive waste as "waste incidental to reprocessing" and abandoning it beneath a layer of grout in corroding tanks. In November 2004, the U.S. Court of Appeals for the Ninth Circuit found that the matter was not yet "ripe" for decision by a court, so the lower court's decision was reversed. However, the underlying dispute remains active and likely to be litigated soon.

Congress Amends Nuclear Cleanup Laws Without Hearing or Debate

In 2004, in a controversial rewrite of longstanding nuclear waste policy, Congress (by the narrowest of margins) approved an amendment to the Nuclear Waste Policy Act to allow DOE the authority to reclassify and abandon high-level radioactive waste in aging, corroding underground storage tanks next to the Savannah River in South Carolina and above the Snake River Aquifer in Idaho. Inserted into the fiscal year 2005 defense authorization bill without any public hearing or debate, this provision (1) exempted DOE from complying with the requirements of the Nuclear Waste Policy Act in South Carolina and Idaho; (2) overturned the Idaho federal court ruling that DOE may not arbitrarily and unilaterally reclassify high-level radioactive waste; and (3) allowed DOE sole discretion in deciding what is high-level radioactive waste in South Carolina.

NAS Study Says Doe Needs Oversight

The NAS study released today, which DOE had requested, stated that under no circumstances should DOE make the final decision about whether highly radioactive waste is disposed of in a deep geologic repository or in any other manner. Rather, the report found that an external regulator, such as the Environmental Protection Agency, should decide whether DOE's highly radioactive waste should go to a repository or be disposed of in another way.

What Should Congress Do Now?

In light of the NAS study's conclusions, NRDC today called on Congress to:

  • Block DOE from disposing highly radioactive waste in South Carolina, Idaho, Washington or New York;

  • Direct DOE to immediately implement an open, transparent review process;

  • Grant EPA direct regulatory authority over the disposal of DOE's high-level radioactive waste.

  • Ensure that the external regulator of high-level waste -- either EPA or another agency, such as the Nuclear Regulatory Commission, or an affected state -- have the discretion to set an appropriate cleanup standard for the waste that protects public health and the environment.