Editors' Summary: Currently, mixed radioactive/hazardous waste is regulated by both the NRC and DOE under the Atomic Energy Act (AEA) and by EPA under RCRA. Despite the agencies' numerous and elaborate attempts to minimize and avoid conflicts between these two regulatory schemes, a fundamental conflict remains between the approaches that the two statutes take to regulating waste.

After reviewing the disparate mixed-waste regulatory schemes of the AEA and RCRA, the authors outline some of the key inconsistencies between hazardous and radioactive waste management and disposal requirements under the Acts, and examine the effect these conflicts have had on the existing mixed-waste system. They conclude that the dual regulation of mixed waste provides no discernible benefit to human health or the environment. In response to the apparent and unabated problems of the current system, which derive from the NRC's, DOE's, and EPA's claims to common jurisdiction, the authors suggest the implementation of a mixed-waste regulatory scheme based on the recognition of the physical properties of the materials in question. They maintain that there are primarily two types of mixed waste — waste that is predominately radioactively hazardous and waste that is predominately chemically hazardous — and that regulatory requirements should reflect these differences. Under their approach, RCRA's regulatory scheme would apply to a mixed waste that contains low levels of radioactivity and is predominately chemically hazardous, whereas the AEA's regulatory requirements would control the management of a mixed waste that contains any significant amount of radioactivity. The authors review as models for their recommended approach, the cooperative schemes that the NRC and EPA have developed under both the AEA, as amended by the Uranium Mill Tailings and Radiation Control Act, and the Nuclear Waste Policy Act, in regulating, respectively, uranium mill tailings and high-level waste at sites that will ultimately be owned in perpetuity by the DOE. The fact that the approach the authors recommend has worked for mill tailings for over a decade leads them to conclude that a similar program can also be successfully applied to the mixed-waste crisis. They also conclude, however, that until key regulators recognize and accept that the current mixed-waste crisis stems not from the unique physical properties of the waste but from their own jurisdictional attitudes, the mixed-waste regulatory system can only become more intractable and unworkable.