32 ELR 11059 | Environmental Law Reporter | copyright © 2002 | All rights reserved

Toward Sustainable Radioactive Waste Control: Successes and Failures From 1992 to 2002

James D. Werner

[Editors' Note: In June 1992, at the United Nations Conference on Environment and Development (UNCED) in Rio de Janeiro, the nations of the world formally endorsed the concept of sustainable development and agreed to a plan of action for achieving it. One of those nations was the United States. In August 2002, at the World Summit on Sustainable Development, these nations gathered in Johannesburg to review progress in the 10-year period since UNCED and to identify steps that need to be taken next. Prof. John C. Dernbach has edited a book that assesses progress that the United States has made on sustainable development in the past 10 years and recommends next steps. The book, published by the Environmental Law Institute in July 2002, is comprised of chapters on various subjects by experts from around the country. This Article appears as a chapter in that book. Further information on the book is available at www.eli.org or by calling 1-800-433-5120 or 202-939-3844.]

Jim Werner is an engineer who directs the Reprocessing Policy Project in Washington, D.C., through support by the Ploughshares Fund. He is also a Senior Policy Advisory for the state of Missouri Department of Natural Resources. He served previously as Director of Strategic Planning and Analysis, and of Long-Term Stewardship for the U.S. Department of Energy's (DOE's) Environmental Management program from 1993-2001. Previously, he was a Senior Environmental Engineer at the Natural Resources Defense Council (NRDC) (1989-1993), a Senior Environmental Engineer and Senior Associate at ICF Technology, a private consulting firm (1984-1989), as well as a staff analyst for the Environmental Law Institute (ELI) (1982-1984) and the Port Authority of New York/New Jersey (1982). He earned a Master of Science degree in environmental engineering from the Johns Hopkins University and a Bachelor of Arts degree from the University of Delaware. He is grateful to Robert DelTredici, Don Hancock, Daniel Hirsch, and Richard Miller for their contributions, and the support of his colleagues at DOE, NRDC, ICF, ELI, and the Port Authority.

[32 ELR 11059]

I. Introduction

A. What Does Sustainability Mean for Radioactive Waste?

Using a primitive nuclear reactor, named "Chicago Pile # 1," Enrico Fermi's team achieved a controlled chain reaction inside a squash court under the spectator stands of Stagg Field at the University of Chicago on December 2, 1942.1 In 1992—a half century after the first controlled nuclear reaction [32 ELR 11060] on earth—the Rio Summit found no consensus on the meaning of "sustainability" in nuclear waste control. Ten years later, our technical understanding and regulatory efforts have improved, even as the global situation raises new concerns. But, we are still far from a consensus on what a sustainable approach to nuclear waste might mean.

Sustainability in nuclear waste2 may, in fact, be an oxymoron. Certainly, nuclear power is not "natural" to a greater degree than other human endeavors. Although uranium exists naturally in the earth's crust, the fissioning of uranium in reactors produces an almost wholly man-made element—plutonium—that does not otherwise exist on earth,3 and can produce a variety of unique environmental, health, and security problems. On the other hand, nuclear technology provides one-fifth of U.S. electrical power and a variety of medical and scientific benefits with less evident immediate and direct health impacts than other energy sources, such as coal. If we look for sustainability in the nuclear enterprise, not in its "naturalness," but in the possibility of consequences that are tolerable for the long run, then nuclear power might compare well with other major energy sources. A larger problem arises, however, from certain nuclear technologies that hold the threat of unparalleled destruction and calamity from nuclear explosions. In this way nuclear power—if it involves reprocessing and recovery of fissile material, e.g., plutonium, may present fundamentally different risks of a greater magnitude than other energy alternatives. If reprocessing and recovery of fissile material can be avoided, then the risks are more comparable to other human endeavors that result in long-lived wastes.

Few other environmental issues evoke such bipolar acrimony between advocates and opponents. While it is difficult not to marvel at the modern alchemy of nuclear power,4 it is also difficult not to be humbled by its waste products that persist for hundreds, thousands, or millions of years.5 Much of the waste will remain radioactive and potentially hazardous for longer than the experience of humans in managing any endeavor, much less safeguarding a material that no longer provides any benefit, but only the threat of harm.

The meaning of "sustainability" in nuclear waste control depends on whom you ask and how you define it. The 1987 Brundtland Commission defined "sustainable development" as "development that meets the needs of the present without compromising the ability of future generations to meet their own needs."6 The 1992 Rio Summit invoked this definition in developing sustainability principles and in drafting Agenda 21. By this definition, some would argue that generating nuclear wastes that remain radioactive for thousands of years cannot, ipso facto, be sustainable.7 Of course, all major sources of energy result in some waste and potential health effects, which must be minimized and balanced against the benefits. Others argue that nuclear technology's promise of "unlimited power" is sustainable if we recycle its waste into new nuclear fuel through "reprocessing."8 But, nuclear power's promise has remained an unrealized dream, and the reprocessing technology used to "recycle" nuclear waste creates additional wastes, and its end product, refined plutonium, and creates multiple security problems.9

Other definitions of sustainable development include three core elements: economic sustainability, environmental sustainability, and social sustainability.10 The principles incorporated in the Rio Declaration encompass all three elements.11 A full analysis of the various principles and definitions of sustainability is beyond the scope of this Article. The second part of this Article, however, introduces several [32 ELR 11061] relevant principles from the Rio Declaration and Agenda 21, as well as the question of whether U.S. nuclear waste management has become more or less consistent with these principles.

Paradoxically, some analysts have asserted that the relatively "low-tech" process of harvesting and using wood for charcoal and other solid fuels, and the resulting soot12 produced in diesel emissions and from carbon dioxide made by fossil fuels have caused the largest global energy production impacts on health and the environment.13 Debating the definition of "sustainable development" in nuclear waste control could be endless. For now, the question of whether nuclear waste management can be sustainable (or more sustainable than the effluvia from other energy technologies) is speculative and irresolvable. The current situation with surface storage of some nuclear waste and reprocessing of spent nuclear fuel to produce weapons-usable material is clearly not sustainable.

In certain respects, radioactive contamination in air or drinking water or soil may appear to be similar to a variety of other pollutants.14 But, because some nuclear wastes, e.g., spent nuclear fuel, can be reprocessed or "recycled"15 to produce plutonium and other fissile materials16 that can be used to produce nuclear weapons,17 the existence, much less the continued production, of these radioactive wastes in combination with reprocessing is not sustainable from a national security perspective, perhaps more than an environmental perspective. Because of the extraordinary potential for nuclear materials to be used for weapons that threaten peace and security,18 this Article pays special attention to this issue, which is identified as a critical element of sustainable development and nuclear waste.19 As concepts of sustainable development become codified in frameworks for governance, rather than merely philosophy, it is critical that it include not just resource depletion issues, but also the national security implications of development patterns.20 Nonetheless, sustainable nuclear waste control may, in the long run, be an oxymoron.

B. Are We Moving Toward or Away From Sustainability?

In the 10 years since the first Earth Summit in Rio, the United States has taken a number of actions that have moved us closer to sustainability in nuclear waste control if measured by the limited number of recommendations in Agenda 21. Perhaps by design, these recommendations were very consistent with U.S. plans and actions during the 1990s.21

When measured against the broader principles embodied in the Rio Declarations, however, the United States has fallen short of making significant progress toward sustainability in radioactive waste controls. For example, despite some initial progress, the U.S. decisionmaking process for radioactive waste control has become considerably more closed. Also, attempts to address worker safety and intergenerational impacts have reversed course despite some progress in some areas.

C. Recommendations

Several recommendations are discussed in more detail in Section VI. These include:

1. Use Existing Institutions, Laws, and Science More Effectively. Before embarking on any initiatives to establish new radioactive waste control programs, we should use existing mechanisms, such as the National Environmental Policy Act (NEPA),22 to the fullest extent possible.

2. Reform or Develop New Institutional Mechanisms. New post-Cold War challenges will likely require new institutions. For example, an operational line management organization, i.e., not solely a policy analysis group, will likely be required to build and operate major new facilities for plutonium disposition. Also, some new organization arrangement will likely be required for long-term stewardship of facilities were residual contamination and waste remain after cleanup is completed.

3. Establish a Trust Fund for Long-Term Stewardship. Because of the extraordinarily long periods required for post-cleanup stewardship of nuclear facilities, and the uncertainty about relying on the annual appropriations process, a dedicated trust [32 ELR 11062] fund and insulated organization will likely be required to ensure sufficient resources are available for the long periods required.

4. Improve Scientific, Technical, and Institutional Basis for Radioactive Waste Management. A more robust and publicly-accepted basis for decisions must be developed. This will require investments in credible science, and a deliberate effort to earn improved credibility among government agencies.

5. Explicitly Connect Nuclear Waste Management With Nonproliferation Issues as Well as Environmental and Safety Issues. The seamless connection between certain aspects of radioactive waste control and nuclear weapons proliferation should be acknowledged. The United States should support changes in the International Atomic Energy Agency to separate the regulatory safety and safeguards functions from the nuclear promotion activities.

6. Openness and Democracy. The current gap between government policies and public understanding and support should be bridged. Although more openness and commitment to democratic decisionmaking can help, serious questions remain about whether the technical concerns about the security of radioactive wastes and related nuclear operations are compatible with open and democratic decisionmaking processes.

D. Chapter Overview

After reviewing the changes in U.S. radioactive waste control in the decade since the Rio Summit, this Article reviews some criteria derived from the 1992 Rio Declaration and Agenda 2123 that are useful for measuring progress on sustainability in radioactive waste control. These criteria are then used to examine various types of radioactive wastes, to assess whether we have moved toward or away from a more sustainable society as a result of changes in our approach to radioactive waste controls. Finally, several recommendations flowing from this assessment are offered for consideration.

II. A Radioactive Waste Primer

Essential to any discussion of radioactive waste is a clear understanding of how various types of wastes are defined.24 In the United States, legal definitions of radioactive waste types are generally based on where the waste came from and what radionuclides are present, rather than how much radioactivity is in it (although they are sometimes related).25

The amount of each waste is generally indirectly related to its radioactivity level, i.e., the higher the inherent radioactivity level, the lower the volume of the waste (see Table 1).26 For example, although high-level waste and spent nuclear fuel comprise only a small portion of the volume of radioactive waste that has been buried or is being stored,27 they represent more than 95% of the radioactivity in nuclear waste.28 The corollary is that nearly 90% (32 million cubic meters) of the total U.S. radioactive waste volume is radioactive "byproduct"29 waste; whereas more than 90% of the radioactivity in U.S. radioactive waste is in spent nuclear fuel and high-level waste from nuclear weapons production.30

As of 1999, the United States generated and stored approximately 16,000 cubic meters (m3) and 340,000 m3, respectively, of high-level radioactive waste.31 Annually about 200,000 m3 of low-level and intermediate-level waste and 10,000 m3 of high-level waste (as well as spent nuclear fuel destined for final disposal) is generated worldwide from nuclear power production. These volumes are increasing as more nuclear power units are taken into operation, nuclear facilities are decommissioned, and the use of radionuclides increases.32

A. Low-Level Waste

Low-level radioactive waste includes any radioactive waste not classified as spent fuel, high-level waste, transuranic [32 ELR 11063] waste, or byproduct material such as uranium mill tailings.33 It is commonly regarded as containing relatively low levels of radioactivity, but it can also include relatively high levels of radioactivity and typically includes radionuclides34 that are as long-lived as those found in high-level waste. Although low-level wastes are generally less radioactive than high-level wastes, some types of low-level waste can be more radioactive than some types of high-level waste.35

Nongovernmental organizations (NGOs) have long recommended changes to this radioactive waste classification scheme,36 but no serious legislative efforts have been made.37 Recently, however, a U.S. Department of Energy (DOE) report recommended changes in this scheme of waste definition, though DOE has not proposed any specific legislation, and the reference appears to be more rhetorical—to shirk "burdensome regulatory requirements"—than a serious policy proposal.38

B. Mixed (Radioactive and Chemical) Waste

"Mixed waste" includes both radioactive constituents and hazardous chemicals that are regulated by the Resource Conservation and Recovery Act (RCRA).39 The term generally refers to low-level mixed wastes, but could also include other radioactive waste forms. In fact, transuranic waste and high-level waste are generally mixed. The regulatory schemes for transuranic waste and high-level waste are principally oriented to the radioactive constituents, such as plutonium and other fission products.40 As of 1999, the United States generated and stored approximately 3,000 m3 and 44,000 m3, respectively, of mixed low-level radioactive waste.41

The definition and regulation of mixed waste remains a bizarre mix of legal authorities. The hazardous component of mixed waste is subject to RCRA regulation. But, the intermingled radioactive constituents are subject only to Atomic Energy Act42 control, not RCRA.43 In terms of the radioactive portion of mixed wastes, source, special nuclear, and byproduct material are explicitly excluded from the definition of "solid waste" under RCRA, and thereby exempted from regulation under RCRA.44

C. High-Level Waste (Including Spent Nuclear Fuel)

High-level waste45 includes (1) the liquid waste resulting from reprocessing spent nuclear fuel, and (2) spent nuclear fuel, if that spent fuel is not expected to be reprocessed.46 In the world of civilian nuclear waste, the terms "nuclear waste," "high-level waste" and "spent nuclear fuel" are virtually synonymous. DOE, however, fastidiously avoids referring to spent nuclear fuel as "waste" largely to preserve the option of using it as a "resource" by reprocessing it to recover plutonium.47 In common parlance—including national [32 ELR 11064] news media coverage—high-level waste refers to spent nuclear fuel, especially the spent fuel stored at commercial nuclear power plants. In common parlance, when the national news media mentions nuclear waste, they are referring to high-level waste, which is generally spent nuclear fuel, especially the spent fuel stored at commercial nuclear power plants. The definition of high-level waste and spent nuclear fuel is more critically important because of its potential implications for proliferation of nuclear weapons materials, and because of recent attempts to change the definition without legislation.

Although high-level waste and spent nuclear fuel comprise only a small portion of the volume of radioactive waste that has been buried or is being stored,48 they represent more than 95% of the radioactivity in nuclear waste, and are generally more long-lived than low-level wastes.49 Consequently, these waste are considered to have the most significant potential long-term environmental impacts.50

Through the use of various reprocessing technologies, spent nuclear fuel can be used to produce nuclear weapons materials, by extracting from it the plutonium that would otherwise be "locked up" in the mixed fissions products from the nuclear reactor. Consequently, the question of whether spent nuclear fuel is considered a radioactive "waste" and how it is managed has potentially significant nuclear nonproliferation implications. Also, high-level waste is a critical tool for detecting and preventing nuclear weapons proliferation because it can be analyzed to determine whether it has resulted from weapons grade plutonium extraction, or reactor grade plutonium extraction.51 Although not widely pursued, some components of high-level waste could be extracted to produce weapons material.52

As noted above, there has been little attempt to redefine nuclear waste in terms of its risks and radioactivity, instead of its origin, except for persistent concerns raised by a limited number of sophisticated nongovernmental analyses. The prospect of a statutory change, however, was raised in an early 2002 DOE report that complained, "waste are managed according to their origins, not their risks." This concern followed more than a decade of quiet effort by DOE to semantically detoxify large amounts of high-level waste from reprocessing by creating a wholly new category of waste, called "Waste Incidental to Reprocessing."53 DOE made this effort explicit by its proposal, as one of its "top priorities," to "eliminate the need to process . . . 75 percent . . . of high level waste."54 In this way, DOE portrayed the effort as an attempt to improve efficiency. But, improving efficiency requires doing more with less, or, at a minimum, doing the same work at lower cost. DOE proposal involves doing less with less, which requires no management break-through. DOE's redefinition of high-level waste to reduce costs is made easier by the fact that DOE enjoys self-regulation of its high-level waste interim storage and treatment. Moreover, DOE's "incidental" waste scheme could not only result in less environmental protection for an important category of waste, but could further institutionalize DOE's self-regulation and facilitate further reprocessing by reducing the costs for the resulting wastes. Not incidentally, by reducing the costs for managing high-level wastes, DOE could also reduce the overall costs for reprocessing, and, therefore, reduce the costs for producing more nuclear weapons material, e.g., plutonium. This DOE redefinition attempt is being challenged.55

As long as it remains unacknowledged, the conflict between nonproliferation and nuclear safety is one that will only grow in intensity. If nuclear technology continues to [32 ELR 11065] be used for power, research and testing is to continue, then the full life-cycle implications must be considered and openly debated. The United States has provided some support for replacing nuclear fuels with comparable nonweapons usable fuel technology,56 but it continues to support use of weapons-grade uranium in domestic research programs,57 leading to a "do as we say, not as we do" perception by other countries. This is not a sustainable approach to the challenge.

D. Transuranic Waste

Transuranic waste generally includes waste contaminated with plutonium.58 Because commercial nuclear power operations do not involve extracting plutonium from spent fuel, virtually all of the transuranic waste in the United States is associated with nuclear weapons production.59 The U.S. "transuranic" waste category overlaps significantly with waste defined as "intermediate" level waste in other countries. As of 1999, the U.S. stored approximately 171,000 m3 of transuranic radioactive waste and has approximately 169,000 m3 of buried transuranic waste.60

The definition of what is and is not a transuranic waste was an issue in the late 1980s when DOE unsuccessfully sought to evade regulation of its plutonium waste by asserting that certain plutonium-contaminated material was not a "waste," but rather it was being stored for future reuse or recycling to recover the residual plutonium.61 Other disputes are likely to arise about the definition of transuranic waste in at least two areas. First, large quantities of transuranic waste are buried, and DOE has not yet decided whether this waste will be exhumed for disposal in the dedicated deep geologic repository being operated for transuranic waste disposal known as the Waste Isolation Pilot Plant (WIPP). This decision is currently being made piecemeal on a site-by-site basis for each cleanup decision. Second, surplus plutonium scrap material is being considered for direct WIPP disposal rather than being processed for potential use in nuclear reactors as mixed oxide fuel or solidified with liquid high-level waste for disposal in another deep geologic repository. If it is declared a "waste" it is more likely to be disposed of in WIPP, rather than the other options.

III. Summary of the Past 10 Years in Radioactive Waste Control

Theworld of radioactive waste has changed fundamentally since 1992. The most profound changes resulted from the end of the Cold War and the changing scope of nuclear waste. An example of such change is the rethinking in the United States of plutonium as a liability and a waste instead of a valuable resource for nuclear weapons, or as in some countries, as an asset for energy production. Some changes reflected evolving environmental regulation and management.62 Clearly these have been major changes in radioactive waste management. But, it is not yet clear whether the net result has been to make society more or less sustainable.

A. Nuclear Waste Assumptions Are Changed by the End of the Cold War

Nuclear weapons and the threat of nuclear war cast a shadow over the last half century that obscured many aspects of radioactive waste management. Consequently, the lifting of that shadow in the wake of the end of the Cold War63 has helped bring many issues to light with unprecedented clarity. Although the Cold War had ended just before the 1992 Rio Summit,64 the implications of this change had [32 ELR 11066] not yet permeated the nuclear establishment and its physical infrastructure.65 But, in the years since the Rio Summit, an enormous rethinking of the role of nuclear technology and the management of radioactive waste has begun.

The collapse of the Soviet Union and the reduction of U.S. and Russian nuclear weapons arsenals66 have clearly reduced some nuclear weapons dangers,67 but other nuclear dangers increased. At the time of the Rio Summit in 1992, there were five openly acknowledged nuclear powers having a military nuclear weapons capability: United States, Russia, Great Britain, China, and France.68 Since, 1992, however, the list of declared nuclear powers has nearly doubled to include India and Pakistan69 as well as Israel, who is widely recognized as a nuclear weapons state,70 and South Africa71, which has dismantled its weapons. In addition, Iraq72 and North Korea73 were found to have undertaken significant nuclear weapons development programs, and Saudi ex-patriot terrorist, Osama bin Laden, last residing in Afghanistan, claimed to possess nuclear weapons.74 This enlargement of the global Nuclear Club contributed to significant unease regarding nuclear issues. This unease contributed to more than 170 countries attending the 1995 Nonproliferation Treaty Review and Extension Conference at the United Nations in New York75 and agreeing to extend the treaty indefinitely and without conditions.76 This treaty addressed the use of reprocessing of high-level radioactive waste to produce plutonium by relying on safeguards monitored by the U.N. International Atomic Energy Agency (IAEA). Unfortunately, the IAEA has been found to be incapable of aggressively monitoring aspiring nuclear states that might reprocess high-level waste surreptitiously.77

Ten years after the end of the Cold War its full implications are still not fully appreciated. Among these implications are a variety of shifts in how nuclear waste and radioactive contamination is managed. The complex and intertwined, yet rarely acknowledged, relationship between nuclear waste and nuclear weapons is a critical issue that deserves consideration in any discussion of radioactive waste control and sustainable development. A few examples of this relationship in the United States are summarized here regarding the changing definition of "radioactive waste," the potential use of radioactive waste for extracting nuclear weapons material, the availability of information about radioactive waste and materials, the use of surplus weapons materials for peaceful purposes, the use of radioactive waste management funding to support weapons facilities and activities.

The end of the Cold War rocked the foundations of what we previously thought was a waste to be disposed of versus a valuable resource to be stockpiled. High-level radioactive waste from nuclear power may be only a definition away from being a nuclear weapons material. For example, the nuclear industry oracle, the Nuclear Energy Institute, regularly asserts that "high-level 'nuclear waste' is really used nuclear fuel."78 Some activists with the Nuclear Energy Institute and the American Nuclear Society used this semantic device to promote "recycling" of spent nuclear fuel from the back end of the nuclear fuel cycle, via reprocessing, to extract the plutonium and uranium for use in fresh fuel to be returned to the "front end" to generate more power.79 Debating [32 ELR 11067] the definition of "waste" is not unique to radioactive waste.80 For radioactive waste, however, this question has far-reaching national security and environmental implications, and has undergone a profound historic shift during the last 10 years. The declaration of plutonium surpluses by the United States and Russia since 1992, have added to the already excessive stockpiles of plutonium.81 Even before this dramatic expansion of plutonium surpluses, there was no economic justification for defining spent nuclear fuel as anything other than a "waste." Nonetheless, dreams of endless plutonium supplies by reprocessing high-level radioactive waste continue to swim against the current of facts and logic. Although the United States has announced plans for a permanent nuclear waste repository in Nevada, some officials argue that technologies involving reprocessing, not contemplated in the Nuclear Waste Policy Act,82 may be preferable to disposal,83 despite the fact that these technologies would not obviate the need for a geologic repository.84

Since the end of the Cold War, enormous stockpiles of "special nuclear materials," e.g., plutonium (Pu)-239 and uranium (U)-235,85 and other materials, e.g., depleted uranium and lithium,86 materials that were painstakingly built up for nuclear weapons arsenals, have been rendered surplus, but not officially declared "waste." The most well-known example is the case of disposing of 100 metric tons of surplus U.S. and Russian weapons-grade plutonium that have been declared surplus.87 Generally, the U.S. policy is to regard excess plutonium as a waste and marginal energy resource, while Russia regards excess plutonium as a valuable resource that should be used, and reused, for nuclear power fuel. Despite these different perspectives, the United States and Russia are both seeking to blend the plutonium into nuclear fuel88 and "burn" it in nuclear power plants. Although this is not the most economical method of generating nuclear power, it is being pursued, in part, because it will render the plutonium unusable for weapons by "poisoning" it with fission products.89 The goal is to meet the "spent fuel standard," which was a concept articulated in a seminal report by the National Academy of Sciences to seek to make the plutonium from warheads as unavailable as the plutonium that is embedded in spent fuel from conventional nuclear power plants.90 A parallel U.S. program to immobilize plutonium in glass was initiated in 1996, but canceled in 2002 by the Bush Administration.91

Unfortunately, all plutonium is not fully accounted for and in secure storage ready for disposal as a waste. For decades, the United States and Russia provided nuclear materials as part of a Cold War technology support effort along with economic and other measures to exert geopolitical influence. Some of these radioactive material sources, which are commonly regarded as radioactive "waste" after use, can be used for crude "dirty bombs" that cannot cause a nuclear explosion, but could disperse radioactivity. As a result of a 1984 Reagan Administration decision to end the tracking of plutonium sources, a significant number of "sealed sources" are unaccounted for after they were provided to foreign countries, including Columbia, Iran, Pakistan, the Philippines, and Vietnam.92 This problem of losing radioactive materials further demonstrates the fuzziness of defining what constitutes radioactive "waste." In addition, it reflects the lesser degree of control given to wastes compared to a fresh, new nuclear resource.93 The material may be technically [32 ELR 11068] identical, but a semantic or legalistic distinction can mean that the material becomes an environmental or a national security risk.

A less well-known "waste/resource" problem, but more pervasive, is the challenge of dealing with a variety of other nuclear materials rendered surplus by the end of the Cold War that have not been declared "waste," but require disposition, largely as wastes with few opportunities for recycling.94 One example is depleted uranium.95 DOE disclosed information on the U.S. stockpile of 585,000 metric tons of depleted uranium. The stockpile was found to be larger than needed for any demonstrated mission needs, such as tank armor or penetrator bullets,96 the safety of which has been questioned.97 Nonetheless, the U.S. government continues to decline to classify depleted uranium as a waste, despite legal challenges by the state of Ohio. As a result of a bipartisan directive from the U.S. Congress, with strong support from labor unions,98 the United States is now building facilities99 to convert the long-stored depleted uranium100 to a form suitable for storage or disposal. Part of DOE's recalcitrance in reclassifying depleted uranium as a "waste" is the hope by many within DOE that depleted uranium can be used as a source of fissile uranium for nuclear power. The technology for potentially spinning this nuclear straw into "nuclear gold"101 is the Advanced Laser Isotope Separation (AVLIS), research for which was canceled soon after DOE's enrichment enterprise was privatized after decades of government-funded research. Nonetheless, the prospects for developing AVLIS, kept alive in part by continued depleted uranium storage, is troubling for international security reasons. The same technology that was proposed for AVLIS, and the related Special Isotope Separation, could be used to extract weapons-usable fissile materials102 and could be easier to conceal from verification than the large industrial-scale reprocessing facilities used historically to separate weapons materials. Continuing to maintain the large stockpiles of depleted uranium (dU), preserves a potential justification for AVLIS and helps keep alive the hopes of many that some form of laser isotope separation technology can convert the nuclear waste to an asset.103 Unfortunately, it also helps keep alive the threat that this technology could help promote nuclear proliferation.

During the 1990s, the United States continued operation of the processing "canyons" at the Savannah River Site in South Carolina104 in order to "stabilize" spent nuclear fuel and other irradiated materials, e.g., Mark-31 plutonium production targets, resulting in the purification of additional quantities of weapons-grade plutonium. The "waste" spent fuel is converted into the national security material of purified plutonium, which requires extraordinary safeguards and security, as well as some additional radioactive waste. These operations were conducted under the pretense of "materials stabilization,"105 and illustrate another connection between nuclear waste and nuclear weapons production. In some reprocessing proponent's view, converting spent fuel into a weapons-grade Pu-239 portion and a liquid high-level waste portion is more "stable" than maintaining the spent fuel in a solid form and using a more specialized technology to stabilize it without producing weapons material.106

[32 ELR 11069]

DOE continues to operate and upgrade the Savannah River Site reprocessing canyons using funding from the Environmental Management budget,107 producing significant quantities of weapons-grade plutonium as well as a variety of nuclear materials, e.g., Pu-242, for programmatic, i.e., nuclear weapons, purposes.108 DOE has justified this operation based on the need to reduce risks from unstable material. This legitimate justification has been overused, however: material that was clearly identified as not presenting any imminent risk, i.e., Mark 16/22 targets, was reprocessed for largely political reasons.109 This "stabilization" reprocessing results not only in production of purified weapons material, but generates additional liquid high-level waste, which is added to the 90 million gallons and 2.4 billion curies of radioactivity (approximately 98% of all radioactivity in U.S. radioactive wastes) already stored in underground storage tanks, which have already exceeded their design life.110

The government's strategy for managing spent nuclear fuel supports further reprocessing operations.111 In the wake of the decision of President George H.W. Bush's Administration112 to phase out reprocessing, DOE performed a programmatic environmental impact statement (EIS)113 that resulted in a decision to manage spent nuclear fuel according to fuel type, e.g., aluminum clad versus, steel clad, etc.. Ominously, DOE decided to ship spent nuclear fuel to sites that are best suited to perform reprocessing using existing equipment.114 In 1996, DOE indicated that it would begin development of an alternative technology to replace reprocessing for stabilizing some spent nuclear fuel,115 but has regularly underfunded or outright defunded this technology development program. Despite being selected as the preferred alternative in a recent EIS the ability to use an alternative technology to reprocessing is in jeopardy and if stored spent nuclear fuel becomes unstable at the Savannah River Site, DOE may have no feasible option to converting the spent nuclear fuel to weapons material and liquid high-level waste. At DOE's Hanford site, the decisions to keep the PUREX reprocessing facility shut down stranded spent nuclear fuel at Hanford. Because the traditional method of managing spent nuclear fuel (reprocessing in PUREX) was unavailable, DOE developed and used an alternative technology.116

A classic case of nuclear waste controls overlapping with nuclear weapons nonproliferation efforts is the program to return foreign spent fuel to the United States. This program seeks to avert nuclear proliferation by accepting spent fuel in exchange for an agreement to phase out use of weapons-grade uranium in research and test reactors.117 The program was not consistently operated, and had virtually ceased by 1992.118 In 1993, the DOE and U.S. State Department resuscitated this nonproliferation program, and undertook short- and long-term operations for returning foreign spent fuel to DOE facilities in the United States. Despite efforts to characterize the shipment of spent nuclear fuel into U.S. ports as a nonproliferation program, public perception was that this is dangerous "nuclear waste" and the United States should not be the "dumping ground," or at a minimum that it should not be shipped in through their local port.119 When the United States initially shipped uranium [32 ELR 11070] and fuel overseas during the Cold War, there was little consideration given to the potential problems of returning and managing the resulting spent fuel.

B. Commercial Nuclear Waste Eclipsed by Nuclear Weapons Facilities' Waste

To the extent that the 1992 Rio Summit addressed radioactive waste, it focused on commercial nuclear waste, which included waste from nuclear power plants and medical laboratories. This focus reflected the public and political lack of awareness of the radioactive waste legacy that had been accumulating in relative secrecy in the factories and laboratories120 of the U.S. nuclear weapons complex. This fog of secrecy began to lift in the late 1980s, spurred by safety problems in the facilities, congressional investigations, and the newspaper coverage of these problems. The stage was set by private publications that began to pull the cover off of nuclear weapons activities.121 From 1988-1989, a team of reporters from the New York Times published almost daily articles about the environmental and safety problems with the nation's aging nuclear weapons facilities.122 DOE, which is responsible for managing the U.S. nuclear weapons complex, quietly launched a series of environmental surveys between 1986 and 1989 to catalogue the environmental problems, followed by a more public "Tiger Teams" investigations. In addition, the Administration of President George H.W. Bush created a new office of Environmental Restoration and Waste Management within DOE to help focus resources on the cleanup. This evolution of openness exploded in 1993 with the series of "Openness Initiative" press conferences held by Energy Secretary Hazel O'Leary, beginning on December 7, 1993.123 DOE also published a series of books and reports that provided an unprecedented and candid account of the nuclear weapons complex and its environmental and safety problems.124 By the end of the 1990s, there was a broadened awareness of the environmental problems with the U.S. nuclear weapons complex.

The widespread environmental problems were acknowledged "officially" by the government when environmental cleanup requirements affecting budgets in the 1990s and the estimated costs more than doubled.125 In 1988, DOE's first cleanup estimate was approximately $ 85 billion,126 which placed government cleanup costs on par with the roughly $ 100 billion estimate for cleanup of commercial nuclear power plants. DOE's initial cost projection would inevitably rise, however, because embedded in the 1988 estimate was the assumption that most nuclear weapons facilities would continue operating and would not require much cleanup—one of many assumptions that changed in the wake of the end of the Cold War. DOE later estimated the government's total environmental liability for radioactive waste cleanup at approximately $ 230 billion.127 Combined with a drumbeat of environmental horror stories and new DOE studies,128 these cost estimates had the effect of sweeping back a curtain of secrecy revealing a landscape of radioactive waste problems. These newly revealed problems were more than twice the size of commercial nuclear waste challenges.129 For fiscal year 2003, the annual budget for DOE's Environmental Management program is nearly $ 7 billion—larger than the U.S. Environmental Protection Agency's (EPA's) entire operating budget, and far larger than environmental expenditures by commercial nuclear operations, making it the largest single environmental program in the world.

[32 ELR 11071]

The increasing openness since 1992 has not only been the most publicly evident change in radioactive waste issues, but it has also had one of the greatest practical impacts. Providing information and fostering an open debate resulted in a variety of decisions that were different than they might have otherwise have been without it. At the Fernald Site in Ohio, for example, cleanup costs were reduced by several billion dollars as a result of local community involvement in the cleanup decisionmaking process. A citizens' task force recommended that most of the waste at Fernald be contained on-site in a newly constructed disposal cell, while shipping only the most highly radioactive waste off-site.130 The community involvement included a significant amount of information exchange, and a visit to the Nevada Test Site—the erstwhile disposal site for much of the radioactive waste from the Fernald Site. Similar involvement of state regulators with unprecedented amounts of information sharing resulted in a relatively smooth decisionmaking process for treatment of mixed low-level radioactive waste, through a process managed by the National Governors Association.131 By contrast, commercial low-level waste disposal efforts have been plagued by a lack of trust among participants and ineffective public participation that has often involved a large element of public relations.132 The fundamental difference is whether communications involves a legitimate exchange of information in which proposed decisions are truly changed by new information and perspectives provided by the public, or whether the information flow is simply one way, as in public relations.

Regrettably, some information was released too late. For example, information on the size of the U.S. plutonium stockpile was released too late to prevent the squandering of more than $ 500 million from 1981 to 1991 on a project to produce weapons-grade plutonium from spent fuel using a new laser isotope separation technology, known as Special Isotope Separation. This plant was slated for construction in Idaho and was estimated to cost more than $ 3 billion to increase stockpiles of plutonium, under the pretense that the United States needed more plutonium for nuclear weapons. Unfortunately, U.S. plutonium inventories were classified, allowing acquisitive contractors, congressmen, and bureaucratic fiefdoms to advocate more plutonium production based on need. In 1993, the U.S. plutonium inventory was declassified, revealing that the United States had possessed more than enough plutonium (approximately 100 metric tons) to support not only the current arsenal, but also any reasonably foreseeable stockpile scenario. This declassification was too late to prevent the frivolous expenditure of hundreds of millions of dollars on politically driven projects, but the information has been vital to planning plutonium disposition. Similarly, in 1999, DOE was forced by press stories to disclose its historic use of "recycled uranium" that contained plutonium and other fission products extracted from spent nuclear fuel.133 Although this disclosure was too late to allow workers to protect themselves, it was critical in congressional support for a workers compensation bill134 and is useful for planning environmental cleanup and long-term stewardship requirements.135

By contrast, commercial nuclear power has been in a relative lull for more than a decade. Now new orders for nuclear power plants have occurred in the United States since the Rio Summit. In fact, the last nuclear reactor to go into operation in the United States was the Watts Bar plant in Tennessee, which went critical in January 1996. The Tennessee Valley Authority (a government-subsidized public power agency) began construction on this plant in December 1972. The most recent construction of a nuclear power plant in the United States began in March 1977 and started commercial operations in June 1986.136

Few participants in the 1992 Rio Summit could have foreseen the emerging dimensions of the environmental problems in the U.S. nuclear weapons complex.137 Ten years later, no consideration of nuclear waste control can reasonably exclude the environmental and waste disposal problems of the U.S. nuclear weapons complex as well as the related nonproliferation issues. Ten years after the Rio Summit, the radioactive waste issues related to weapons production should, at a minimum, be introduced and discussed at the summit in South Africa in September.

IV. Measuring Progress Toward Sustainability

Despite the relatively brief treatment given to radioactive waste control by the Rio Summit, the Rio principles offer several useful criteria for measuring progress toward sustainability in radioactive waste management. This section will highlight selected principles from the Rio Declaration applicable to radioactive waste control, and it will review [32 ELR 11072] various areas of radioactive waste control to assess whether the United States has moved toward or away from sustainability as measured by the Rio principles.

A. Radioactive Waste Control in the Rio Declaration and Agenda 21

Of the two principle documents arising from the 1992 Rio Summit—the Rio Declaration and Agenda 21—the issue of radioactive waste control was addressed explicitly only briefly in a three-page chapter in Agenda 21.138 The Agenda 21 chapter, entitled "Safe And Environmentally Sound Management of Radioactive Wastes," was divided into two major sections: (1) management; and (2) international and regional cooperation and coordination activities.139 The management activities agreed upon in Agenda 21 include worthy areas such as waste minimization, developing safety standards, supporting technology transfer, and participating in planning, including emergency planning. The international cooperation and coordination activities include preventing transboundary impacts, supporting a permanent ban on ocean disposal of low-level wastes140 avoiding storage and disposal of waste near oceans, and abiding by international waste transfer bans and other agreements. Generally, Agenda 21 focused on a limited number of cross-boundary issues, e.g., protection of oceans, primarily oriented toward commercial nuclear waste issues. The United States has largely supported the broad objectives in Agenda 21.

Clearly, radioactive waste control was not a primary focus of either of the two principle documents arising from the Rio Summit. Because there are few specifics regarding radioactive waste control in Agenda 21, it is useful to identify significant radioactive waste issues that were not included. For example, Agenda 21 does not mention nuclear weapons—either the waste implications of weapons production, e.g., transuranic waste, or the potential weapons implications of waste management decisions, e.g., extraction of plutonium form spent nuclear fuel. Given the controversial nature of these issues, it is understandable that the nonproliferation implications of nuclear waste and the waste produced by nuclear weapons production operations were not raised in the 1992 Rio Summit and apparently will not be addressed officially at the 2002 summit in Johannesburg. These are sensitive issues in domestic debates; and there is typically more reluctance to discuss these issues in an international forum where it could affect sovereign national security interests. The changes in the global perspective on radioactive wastes and materials—such as the changed scope of what is considered "waste" and the emergence of the nuclear weapons-derived waste problems—might have resulted in a different focus if the same discussion were to occur today. Any reassessment of sustainability in radioactive waste control should begin with the objective. The objective of the radioactive waste chapter in Agenda 21 mentions only "protecting human health and the environment," and does not identify prevention of the proliferation of nuclear weapons materials as a related objective of sound radioactive waste management.

The principles articulated in the Rio Declaration, however, offer a number of useful criteria for measuring U.S. progress on sustainability in radioactive waste control. Of the 27 principles identified by the Rio Declaration, 5 seem particularly relevant to the issue of radioactive waste control:

1. Principle 3—Intergenerational Impacts. "The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations."141

2. Principle 10—Openness and Public Participation. "Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities."142

3. Principle 13—Worker Compensation. "States shall develop national law regarding liability and compensation for the victims of pollution and other environmental damage. States shall also cooperate in an expeditious and more determined manner to develop further international law regarding liability and compensation for adverse effects of environmental damage caused by activities within their jurisdiction or control to areas beyond their jurisdiction."143

4. Principle 15—Precautionary Principle. "In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation."144

5. Principle 16—Internalize Costs and Use "Polluter-Pays" Principle. "National authorities should endeavour to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment."145

The question of how well the United States has done in abiding by and promoting Agenda 21 and these principles is addressed in the next section.

B. U.S. Progress and Backsliding on Rio Principles and Agenda 21 Activities

Although radioactive waste control did not receive extensive consideration in the Rio Summit and Agenda 21, the consensus activities in Agenda 21 and many of the principles articulated by the Rio Declaration provide useful cross-cutting [32 ELR 11073] measures for evaluating the performance of the United States in the past decade. In addition to using these cross-cutting measures, it is also useful to consider the progress or backsliding in policies and management actions for each waste type, which is addressed in Section V below.

During the decade since the Rio Summit, the United States participated in virtually all of the activities identified in Agenda 21 regarding radioactive waste control, and many of the principles in the Rio Declaration have been applied in U.S. radioactive waste control.146 Nonetheless, there have also been increasingly serious problems with sustainability in nuclear waste management, and many of the practices that have moved the United States ahead in sustainability of radioactive waste control have been reversed or halted by the new Bush Administration.

1. Management Activities

Agenda 21 included four major management activities: waste minimization; development of safety standards; technology transfer support; and participation in planning, including emergency planning. The United States has participated actively in all four activities to at least minimally expected levels. Waste minimization and technology transfer activities are considered here.

Waste minimization, if pursued vigorously, is among the most useful and cost-effective environmental management activities. Unfortunately, the brief discussion of nuclear waste management in Agenda 21 failed to recognize explicitly a fundamental distinction in measuring waste minimization: the amount of waste per unit of activity should be reduced, not simply the total amount of waste, which can decline as a result of reduced production activity, e.g., economic recession or the end of the Cold War. Without addressing the amount of waste per unit of activity, then when there is a resurgence of the waste-generating operation, e.g., after a recession ends or an arms race restarts, the same waste problems return.

The United States has successfully reduced the amount of radioactive waste produced in significant areas, such as commercial low-level waste and high-level wastes from weapons production, but the different methods and causes of the reductions are useful to examine. For commercial low-level waste, private industry generally reduced the amount of waste per unit of activity.147 The amount of high-level waste from nuclear weapons material production, however, was reduced largely by DOE's decreased level of nuclear weapons production, not more efficient operations.

Neither of the activities resulted from a deliberate effort to pursue waste minimization as a goal because of its environmental benefits. As discussed below, low-level waste generation was cut because of economic pressures. Highlevel waste generation dropped because the end of the Cold War caused an end to nuclear weapons materials production, which cut production reactor and reprocessing operations.

The United States has generally supported technology transfer in radioactive waste control. For example, the United States has provided significant support to efforts to stabilize the failing sarcophagus at the Chornobyl reactor in the Ukraine. This effort has also provided an opportunity for U.S. technology developers to demonstrate there devices, such as the "Houdini" robot that can lower into a confined space like a tank or rector vessel, and then unfolds tractors treads and manipulator arms. However, there are troubling aspects that have not been fully resolved. Some technologies promoted for radioactive waste control may present significant nuclear proliferation concerns.

An example of such concerns can be found at the Argonne West Facility in Idaho, where DOE has spent millions of dollars to develop a new reprocessing technology at the Argonne West facility in Idaho. The technology, called pyroprocessing,148 extracts weapons-usable uranium or plutonium from spent fuel. It was initially developed as part of "fast breeder reactor"149 program to produce new supplies of plutonium and then "recycle" the waste into new fuel. Unfortunately, as with any nuclear waste reprocessing, the same technology to recover plutonium or uranium for new fuel can be used to extract material for nuclear weapons, and could present national security concerns.150 The United States has engaged in technology transfer programs with Asian countries to explore their possible use of this emerging technology. The prospect of exporting this technology with its potential nuclear proliferation implications has raised concerns among some congressmen and NGOs. Similarly, the United States has cooperated with the Japanese government to develop a "radioactive waste" processing technology known as "TRUMP-S," which was initially developed at the Santa Susanna Field Laboratory in the hills near Los Angeles in Ventura County, and later moved to the relatively more remote University of Missouri at Rolla. Similar concerns were raised about the proliferation risk associated with this attempt to develop a radioactive waste processing technology.

The United States has still not fully reconciled its desire to encourage economic development and transfer of radioactive waste control technologies, and the need to control potential proliferation risks, particularly in a world where competing countries may not have the same scruples about technology transfer issues. Future consideration of the role of technology transfer in sustainable development should address this potential conflict with national security issues.

[32 ELR 11074]

2. International Cooperation and Coordination

U.S. support for international cooperation and coordination—among activities identified in Agenda 21—has been uneven. Generally, the United States has provided significant and broad support for international and regional cooperation and coordination. However, this support has been uneven, and self-interested. A couple of examples help illustrate the point.

In North Korea, the United States provided substantial support for improving management of nuclear materials. This support occurred as a result of an agreement between the United States and North Korea, under which North Korea would cease its efforts to develop nuclear weapons. In return, the United States helped stabilize North Korean nuclear fuel, which could have been converted to nuclear weapons material, and helped replace a North Korean nuclear reactor that presented a significant proliferation risk with another rector that had a more proliferation resistant design. Serious regional problems remain with nuclear nonproliferation, but, in this instance, the United States addressed nuclear waste issues in North Korea when they threatened U.S security interests, not local Korean environmental contamination.151

In Estonia, the United States provided at least $ 2 million in technical assistance to stabilize a double reactor submarine propulsion prototype unit near Paldiski.152 Consequently, this stabilization facilitated the Russian removal of weapons-grade uranium fuel from the facility in 1995. Through the Paldiski International Expert Reference Group, the United States demonstrated U.S. environmental technologies while also helping Estonia perform environmental cleanup and improve security at the facility.

These examples illustrate U.S. support for international cooperation when it coincides with U.S. security and commercial interests. Conditioning U.S. support in this manner might be seen by some as "anti-globalist" because it fails to promote the broader common good. In the case of nuclear waste control, however, limiting broad international support can be seen as prudent. If the United States were to provide unlimited international support to developing countries for nuclear waste control, it could also be viewed as a subsidy to help enable nuclear technologies where normal institutional systems and market forces cannot normally support them.

The International Cooperation and Development element of Agenda 21 is comparable to a section of the Treaty on the Non-Proliferation of Nuclear Weapons that requires that countries "in a position to do so shall also cooperate in contributing alone or together with other States or international organizations to the further development of the applications of nuclear energy for peaceful purposes."153 Probably the most significant technology shared internationally is nuclear reactor technology. The critical concern is that standard reactors produce plutonium, which, if extracted, can be used for nuclear weapons. In fact, some have argued that using conventional nuclear reactors, such as light and pressurized water designs, pose an unavoidable nuclear proliferation risk because of the potential for recovering plutonium through reprocessing.154 One pioneering and long-time nuclear engineer, Alvin Radkowsky, said: "If we don't put a stop to conventional uranium cores now, nuclear terror will ensue, and the use of legitimate nuclear energy will be barred worldwide."155 To avoid this risk of nuclear weapons material proliferation from nuclear power, many observers have promoted the development of proliferation resistant fuels and reactors designs.156 Skeptics assert that even with new fuel and reactor designs, residual plutonium and other fissile materials, such as U-233, still present a proliferation risk.157 A useful context to view this debate may be one of relative ease of proliferation: an intact warhead presents a greater risk than purified nuclear materials, which present a greater risk than spent nuclear fuel, which can serve as a source of purified nuclear materials, which is more readily obtained from conventional reactors than one using a proliferation-resistant fuel. In this sense, U.S. efforts have appropriately placed the greatest efforts on the most urgent issues of protecting weapons usable fissile materials and the safety of operational nuclear reactors, e.g., Chernobyl in the Ukraine. The importance of nuclear waste as a potential source of fissile materials has not often been on the U.S. international agenda because of the preeminence of more urgent issues.

For virtually all of the principles articulated in the Rio Declaration, the U.S. experience since 1992 provides both hope for greater sustainability, and significant cause for concern about backsliding on previous efforts toward sustainability. This Article cannot presume to cover all of the principles articulated by the Rio Summit, but 5 of the 27 Rio principles warrant consideration because they are particularly applicable to radioactive waste management.

Principle 3—Intergenerational Impacts

The inherent long-lived nature of radioactive waste demands consideration of intergenerational issues. For many hazardous wastes, treatment can reduce their persistence. [32 ELR 11075] For even global environmental impacts, e.g., climate change, reversing trends are possible, even if they require significant technical, economic, and political effort. However, the persistence of-radioactive waste is dictated by the immutable laws of physics, which reliably predict a fixed virtually immutable half-life158 for each radionuclide. Many radioactive wastes have half-lives of thousands of years, although they range from only a dozen years for tritium to billions of years for U-238. Hence, we may be trading a few seconds of time saved using "conveniences" like electric can openers, for millions of years of commitment to safeguarding the resulting nuclear waste.159

U.S. controls on most radioactive waste generally contain explicit, if imperfect requirements that long-term intergenerational impacts be considered. For example, EPA regulations governing high-level and transuranic waste disposal both require that the disposal facility remain protective for 10,000 years, and that active institutional controls only be considered a part of the protection for 100 years.160 These periods of time are longer than the periods of time that govern most human activities.

The issue of intergenerational impacts has traditionally been a focus of debates about geologic repositories,161 and has certainly been studied as part of the repository design process, including the use of a science fiction-like markers system.162 In the wake of the large amount of information made available about the pervasive and persistent nature of radioactive waste and contamination, a broader recognition has developed that future land use restrictions will be required at hundreds of sites, not merely a couple of geologic repositories.163 However, neither a complete understanding of the implications, nor a mature ability to deal with this recognition, have yet to evolve.164

The IAEA has begun an effort to address the need for long-term records at radioactive waste burial sites.165 These initial recordkeeping efforts do address a number of critical issues that will be necessary for information about radioactive waste to be passed on effectively from generation to generation, including nontechnical issues like public access and the role of local governments.166

Principle 10—Openness and Public Participation

During the past 10 years, significant progress has been made in increasing public participation and improving the openness of the business of radioactive waste control. Much remains to be done, however, and some backsliding has already begun. One of the first promising signs within the federal government of opening up was the Executive Order signed in early 1993 that required federal facilities to comply with the "Right to Know" provisions of Superfund that they were otherwise exempted from. Although federal facilities have still not fully complied with the Executive Order, and still enjoy a statutory exemption, the data collected has been useful in promoting waste minimization practices at federal facilities.

The most dramatic changes in "openness" resulted from the initiative launched by then-Secretary of Energy O'Leary.167 The relatively open atmosphere regarding government information about radioactive waste has waned significantly since that initial effort.168 It remains unclear whether even legally required information about radioactive waste, such as draft EIS for public comment, will be made available.169 The wholesale removal of radioactive waste information from web sites began after President George W. Bush took office and accelerated after the terrorist attacks of September 11, 2001.170 The denial of access to information appears to have less to do with legitimate security needs than about an instinctive reflex to use [32 ELR 11076] security as a pretense to avoid disclosure of "embarrassing" information.171

Principle 13—Worker Compensation

Under Principle 13:

States shall develop national law regarding liability and compensation for the victims of pollution and other environmental damage. States shall also cooperate in an expeditious and more determined manner to develop further international law regarding liability and compensation for adverse effects of environmental damage caused by activities within their jurisdiction or control to areas beyond their jurisdiction.172

Despite widespread popular attention to environmental problems, workers are, in fact, most at risk of exposure and adverse health effects from radioactive wastes.173 For decades, however, when workers sought to draw attention to health safety risks, they often faced retaliation and blacklisting in both commercial nuclear plants and government nuclear weapons facilities. Worker safety and health was ignored at DOE facilities174 because of the same culture that caused DOE to ignore environmental problems—production of nuclear weapons was a top priority far above the status of environmental protection or worker health and safety.175 For government workers, accountability has been severely limited because DOE is self-regulating with regard to worker health and safety, and the agency and its contractors have operated behind a veil of secrecy throughout the Cold War. The government routinely sought to cover up harm to workers, justifying it on the grounds that telling workers about their risks would lead to embarrassment, union demands for hazardous duty pay, and increased numbers of worker compensation cases.176

For example, between 1953-1977, the Paducah Gaseous Diffusion Plant in Kentucky used uranium oxide contaminated with Pu-239 and neptunium-237. Production workers, however, were not told about or monitored for these more hazardous isotopes until the mid-1990s—almost 40 years after workers were exposed, and only after these same isotopes were found in groundwater (neptunium-237 is 2,000 times more radioactive per unit of mass than uranium). A 1960 Atomic Energy Commission (AEC) memo reported that, "there are possibly 300 people at Paducah who should be checked for neptunium, but they [the AEC contractor] are hesitant to proceed with intensive studies because of the union's use of this as an excuse for hazard pay."177

Studies about harm to workers were also kept secret. A 1949 AEC memo on gamma radiation exposure to Los Alamos workers' blood stated:

We can see the possibility of a shattering effect on the morale of employees if they become aware that there were substantial reasons to question the standards of safety under which they were working. In the hands of labor unions the results of this study would add substance to the demands for extra-hazardous pay . . . knowledge of the results of this study might increase the number of claims of occupational injury due to radiation and place a powerful weapon in the hands of a plaintiff's attorney.178

Since 1992, however, two events improved the situation for individual employees, but the overall problem of DOE self-regulation remains intractable. First, a knowledgeable DOE analyst and critic from the congressional Office of Technology Assessment,179 Dr. Tara O'Toole, was appointed as the Assistant Secretary of DOE for Environment, Safety, and Health. Dr. O'Toole led reform efforts within DOE, including strengthening DOE's use of internal oversight and penalties against nonconforming contractors regarding occupational safety and health issues.180 She led an initiative to encourage modern integrated safety management techniques to involve all workers in safety planning.181 She supported an open investigation of human radiation experiments conducted by the government and its contractors.

[32 ELR 11077]

Second, a series of scandals and coverups continued to highlight the problems of worker exposure to radioactive wastes and materials at DOE facilities. At the Mound facility in Ohio, a lawsuit by the Oil, Chemical, and Atomic Workers Union182 publicly revealed that DOE had failed to monitor radiation worker exposures when bioassay samples had been left unanalyzed for three years. Litigation at the Fernald, Ohio, facility revealed that between 1952 and 1962 (excluding one year) over one-half of the production workers who were measured were exposed to uranium levels to the lung that exceeded the prevailing standard of 15 rem.183 The AEC, which used beryllium as a critical element of nuclear weapons production, and private beryllium vendor operations allowed workers to contract the deadly chronic beryllium disease. This apparent conspiracy was exposed in March 1999 as part of a 22-month investigation by the Toledo (Ohio) Blade. The investigation "shows that the U.S. government clearly knew, decade after decade, that workers in the private beryllium industry were being overexposed to the hard, lightweight metal, which produces a toxic dust when manufactured or machined."184 When safety regulators tried to protect workers, they were deterred by an overwhelming alliance: the beryllium industry and the defense establishment. Protection of the industry has reached all the way to the White House cabinet, where in the 1970s President Jimmy Carter's U.S. Department of Defense and DOE secretaries helped kill a safety plan. According to a letter U.S. Energy Secretary James Schlesinger wrote to two cabinet members at the time, they feared the plan would cut off beryllium supplies for weapons, and that would "significantly and adversely affect our national defense."

Meanwhile workers with beryllium disease were denied state workers compensation due to legal obstacles that required workers to file workers compensation claims within 300 weeks of their last injurious exposure.185 Chronic beryllium disease has a latency of 10 years or more, and workers that could not prove exposure within 300 weeks were unable to sue their employers directly under workers compensation or any other legal doctrine because workers compensation is the "exclusive remedy" for workplace illness, unless a sick worker can show the employer intended to harm them.

An enterprising young USA Today reporter named Peter Eisler reconstructed the story of worker exposures at sites that—unlike Hanford, Oak Ridge, or Los Alamos—were owned not by the government, but by private vendors. These workers were exposed to high levels of radioactive materials, such as thorium and uranium, without warning or even minimal protections. In a remarkably candid admission, then-Secretary of Energy Bill Richardson admitted that concerns about workers at these sites had "fallen off the map."186

Media investigations followed into the plight of sick workers in Kentucky, Ohio, and New Mexico.187 Thanks to a strong push from then-Secretary Richardson and Assistant Secretary David Michaels and a bipartisan coalition led by labor unions, Congress188 passed a landmark worker compensation bill, which provides payments to current and former nuclear workers and their surviving family members.189

This new compensation law federalizes worker compensation for cancer, chronic beryllium disease, or silicosis, through a $ 150,000 lump sum payment and medical benefits for former DOE and DOE contractor employees. What makes the law significant is that it codifies the principle that the burden of proof should shift to the government in cases where workers were put in harms way without their knowledge or consent and subsequently fell ill.190 Further, the compensation proceedings are nonadversarial because the employer cannot participate in or oppose compensation decisions.191 The new compensation law also designates workers at four sites (Oak Ridge K-25, Paducah, Portsmouth (Ohio), and Amchitka Island Test Site (Alaska)) as members of a Special Exposure Cohort, who automatically receive compensation if they are afflicted with 1 of 21 "radiosensitive" cancers—on the principle that they were not monitored and it would not be feasible to credibly establish their radiation doses many years later.192 The government, upon petition, may add other workers to these [32 ELR 11078] Special Exposure Cohorts who "may have been endangered" and "it is not feasible to estimate radiation dose with sufficient accuracy."193 Claims could be filed beginning July 31, 2001,194 and in the first six months, approximately 25,300 workers or their survivors have filed claims for compensation.195

Although much remains to be done to address worker health and safety in radioactive waste control, acknowledgement by DOE that workers had been harmed, combined with the new compensation legislation, has somewhat improved the situation for workers. Unfortunately, DOE is backsliding toward its insular culture of self-regulation and contractor self-assessments, thus reversing the momentum toward greater contractor accountability and safety that was developed in the 1990s.

Principle 15—Precautionary Principle, Health Effects, and Hormesis

Given the extraordinarily long time periods relevant to radioactive waste management, and the remaining uncertainty about long-term health effects—especially reproductive and genetic effects—the precautionary principle is particularly appropriate to apply to radioactive waste control. Yet, it is exactly in this area where a significant battle broke out during the past decade regarding health effects from ionizing radiation, and could cause a weakening of the traditional application of the precautionary principle in radioactive waste control. Some critics have contended that the precautionary principle fails to address the costs of "over regulation," such as economic losses and opportunity costs.196

Standards for exposure to radioactivity have been developed based largely on research from victims of atomic bombs in Hiroshima and Nagasaki. After a series of studies over several decades,197 the National Academy of Sciences published in 1990 what was regarded as a landmark report that examined comprehensively available data on radiation exposure.198 This report, like most other analyses and radiations exposure standards on which they are based, uses a so-called linear no-threshold model, which assumes that there is a direct 1:1 relationship between radiation exposure and health effects. Some critics have asserted that no proof of the linear no-threshold model exists, and therefore a threshold could be established below which exposures are acceptable,199 even therapeutic.200

The data thus far is inadequate to support any threshold, and the proponents of adopting a threshold and discarding the traditional linear no-threshold model have often appeared to be seeking evidence to support their theory, rather than pursuing an objective analysis of available data. Certainly adopting anything other than the linear no-threshold model would be departing from the precautionary principle recommended in the Rio principles.

Principle 16—Internalize Costs and Use "Polluter-Pays" Principle

The goal of internalizing costs is perhaps the most problematic of the Rio principles for the United States or any country to address. First, the intergenerational nature of radioactive waste almost guarantees that some of the costs for managing radioactive wastes will be borne by future generations, rather than the people who benefitted from the electric power or nuclear weapons.201 Radioactive wastes from medical research, however, are typically relatively shortlived and consequently it is conceivable that its costs could be borne by the same generation, if not the same individuals, as the beneficiaries. Some proposals have been made for establishing trust funds,202 and a limited trust fund has been established for a disposal site in Oak Ridge, Tennessee.

Another concern about who bears the costs for radioactive waste controls is the special arrangement for insurance coverage of nuclear power and related activities. In the United States, the so-called Price-Anderson law establishes a cap on the liability of nuclear power plant operators.203 It was enacted in 1957 to help encourage private companies to get involved in the then nascent nuclear power business, and it was strengthened in the wake of the Three Mile Island accident when many companies feared potentially astronomical [32 ELR 11079] liabilities. Proponents argue that without this support, they could not operate because private insurance is not available or is prohibitively expensive. Moreover, they argue, the indemnification-supports cleanup contractors and local governments who might be involved in emergency response, for example, related to radioactive waste shipping accidents.204 Opponents, including both liberals and conservatives, call the law a "subsidy" and "corporate welfare."205 Proponents respond that virtually all energy industries received some form of government subsidy, such as access to western lands for the coal industry.

Finally, the long-term costs for post-cleanup stewardship of commercial nuclear sites could be borne by taxpayers, under a little known provision of the Nuclear Waste Policy Act.206 Although the law does not require, but only authorizes DOE to take responsibility for long-term stewardship of private nuclear sites, few involved with the issue expect that the funding from private bonds will be sufficient to cover long-term costs, and government support will eventually be required.

To the extent that the waste and liability producing practices are subsidized and fail to internalize the full costs of doing business, the same practices will continue to produce environmental problems.

V. U.S. Sustainability Progress and Backsliding for Various Types of Radioactive Waste

Because of the relatively brief consideration given to radioactive waste control in the Rio Summit and Agenda 21, and because of the significant differences between radioactive waste types, a more detailed treatment for each type of waste is useful.

A. High-Level Waste and Spent Nuclear Fuel

The logjam regarding disposal of high-level waste and spent nuclear fuel did not break during the 1990s, but merely shrugged as battles raged along traditional lines.207 Despite significant efforts and motion, there has been some important progress in certain areas, e.g., reducing the risk of explosions from waste tanks and initiating waste vitrification operations, but little fundamental progress in high-level waste management. Perhaps the principle cause of the continuing impasse, is that the issue of high-level waste and spent nuclear fuel from nuclear power reactors is seen, by both pro- and anti-nuclear advocates, as a stalking horse for the viability for nuclear power.208 In the decade since the Rio Summit, the bottom line for high-level waste remains the same: there is no long-term repository for high-level waste or spent nuclear fuel in any country, including the United States. Also, virtually all of the high-level waste that was generated during the Cold War remains stored in underground tanks that were not designed to contain high-level waste for long periods of time.

This section will address spent nuclear fuel and high-level waste from nuclear weapons production as well as from commercial nuclear power plants. The Nuclear Waste Policy Act (NWPA)209 set January 31, 1998, as the deadline for the federal government to begin taking spent nuclear fuel from utilities. When commercial utilities and public utility commissions sued DOE, the U.S. Court of Appeals for the D.C. Circuit held that the DOE was required unconditionally to accept spent nuclear fuel from utilities regardless of whether a geologic repository or other particular type of facility for handling spent fuel was in operation.210 DOE has spent several billion dollars on researching and "determining the suitability"211 for a nuclear waste repository at Yucca Mountain in Nevada, leading to a recommendation to Congress in early 2002.212 Although DOE has not physically taken any spent fuel from utilities,213 DOE has offered reduced nuclear waste fund fees to compensate utilities, although this arrangement is being disputed.214 During the 1990s, Congress voted several times to establish a "temporary" storage site for commercial spent nuclear [32 ELR 11080] fuel near the Yucca Mountain site in Nevada. But, after President William J. Clinton vetoed the bill, Congress was unable to muster a veto-proof majority, usually by a single vote.215 On July 9, 2002, the logjam was broken when the U.S. Senate voted overwhelmingly in support of the Bush Administration's recommendation that Yucca Mountain be considered for development as America's first nuclear waste depository. The 60 to 39 vote overrode Nevada Gov. Kenny Guinn's (D.) attempt to block the proposal. DOE now must obtain a license from the Nuclear Regulatory Commission (NRC) for the facility, a process that could take up to five years. No waste is expected to be moved before 2010, the earliest the site can be ready.

During the past decade, an effort to identify a volunteer community for "temporary" storage of high-level waste and spent nuclear fuel failed. The NWPA established an Office of Nuclear Waste Negotiator to induce communities with annual payments of $ 5 million prior to receiving spent fuel and $ 10 million per year until the facility was closed. DOE received several applications for initial planning funds, but none of the communities ever received any waste. Of the three counties that were funded, two applications were blocked by their respective governors (who had initially assented to the process), and the responsible officials in another county were removed from office in a recall election.216 The only locations still being considered for temporary nuclear waste storage are Indian reservations, resulting in charges of environmental racism.217 Authority for the Nuclear Waste Negotiator's Office expired in January 1995.

The lack of a repository pressures nuclear power plants nationwide to improve operational efficiency, coaxing as much power as possible from their fuel before it becomes spent fuel and ends up in on-site storage pools. But, spent fuel storage pools have a definite capacity, and filling them to capacity can create not only physical but also financial and political pressure on a utility. When a storage pool is filled, a utility may need to seek NRC permission to "rerack" the fuel or build additional storage space with another pool, or using dry cask storage. So, retarding the rate at which spent fuel is generated becomes a critical cost-reduction measure for utilities in an increasingly competitive and often deregulated market environment that resulted in significantly higher capacity or load218 factors219 and shorter down times for maintenance and refueling. Similar concerns about lack of disposal options and the need for cost-reduction also led to waste minimization efforts in low-level waste activities, discussed below.

Questions raised by a high-level waste repository are among the most complex and intractable issues confronting any nation in the world. The United States has no magic wand, but it differs from other countries tasked with this problem in one respect: it has constructed and begun shipping certain nuclear weapons-related wastes to a deep geologic repository—the WIPP220 site in southeast New Mexico.221 Although storing spent nuclear fuel in pools at nuclear power plants has not yet resulted in significant environmental contamination,222 it is clearly not a sustainable solution. Dry cask storage offers the potential to abate much of the "crisis" concern about filling spent nuclear fuel storage pools for a significant period of time.

Recently increased concerns about terrorist strikes at nuclear power plants have heightened the urgency to improve the safety of on-site storage, and establish longer term storage or permanent disposal site(s). The issue of establishing an alternative storage or disposal site is not simple. A single site could be more vulnerable to terrorist attack because of the high concentration of a larger amount of waste, although dry cask storage would be significantly less vulnerable than a single or large pools containing spent nuclear fuel. Also, significant long-term uncertainties remain about the safety of a permanent repository. Consequently, some analysts have recommended long-term interim storage to improve safety and reduce pressure on establishing a repository in a forced technical and political environment.223 This solution would be a more sustainable, though not a permanent solution to high-level waste and spent nuclear fuel management. While Secretary of Energy Spencer Abraham recently cited security concerns in the wake of the September 11 attacks as justification for relocating high-level waste from surface storage to Nevada.224 others note that spent nuclear fuel and high-level waste will remain at the same "temporary" storage locations for as long as the facilities operate.225

Traditionally, spent nuclear fuel slated for nuclear weapons production in the United States was reprocessed using a [32 ELR 11081] technology that recovered weapons-usable plutonium or uranium, while also generating large amounts of liquid high-level waste (high-level waste) and other types of radioactive waste.226 This high-level waste from reprocessing of spent nuclear fuel continues to be stored in underground tanks at the following four U.S. locations:

. Hanford Site, Washington;

. Idaho National Engineering and Environmental Laboratory, Idaho;

. Savannah River Site, South Carolina; and

. West Valley Site, New York.227

Although the high-level waste problems are confined to a handful of sites, they merit careful consideration because of the more than $ 50 billion228 needed to stabilize and dispose of the waste. Civilian high-level waste, i.e., spent nuclear fuel, does not contain as many hazardous elements (larger volumes of chemical mixtures in a liquid form), so the strategies for managing it are not as complex or expensive.

At only two locations, West Valley, New York, and Savannah River Site, South Carolina, the United States built and began operating vitrification plants in the 1990s to convert the liquid high-level waste into stable borosilicate229 glass that was poured into stainless steel canisters for disposal in a repository. The Savannah River Site's vitrification process removed most, but not all, of the high-level waste from two tanks, which were then grouted, i.e., filled with concrete, with a relatively small amount of high-level waste remaining in the tanks. DOE has sought to characterize this residual waste as "waste incidental to reprocessing" despite no statutory or regulatory basis for such a new classification of waste.230 The Natural Resources Defense Council231 dubbed this ruse "semantic detoxification" and has challenged DOE's strategy in court.232

At the Hanford site, the largest volume of high-level waste—52 million gallons of it—is stored in 177 underground storage tanks.233 The most urgent risk addressed at these tanks has been the threat of explosion from flammable gases, e.g., hydrogen.234 Mixing of waste with pumps and transfer of waste tonewer tanks has substantially reduced this risk. DOE has also revealed that many of these tanks have been leaking into the ground for decades, and these leaks have contributed to the contamination of several hundred square miles of groundwater. During the past decade, DOE has acknowledged that the vadose zone235 under the tanks is also contaminated from the leaking tanks. Despite numerous regulatory deadlines agreed to between DOE and state regulators, DOE has failed to begin construction of a vitrification plant to remove and stabilize these tank wastes. Reducing the risk of a tank explosion has been hailed as a success story, but environmental concerns about the tanks at Hanford leaking into the groundwater have grown for years. First, some tanks are now more than 50 years old, but have a design life of only 20 years. Second, the tank leakage is greater than previously believed. Third, plutonium in the waste is migrating through soil at a rate faster than originally predicted.236

Perhaps more than in any other area of radioactive waste control, the problems of high-level waste and spent nuclear fuel challenge the sustainability of nuclear technologies for both environmental and national security reasons.

B. Transuranic (Plutonium) Waste

Transuranic waste chiefly includes waste contaminated with plutonium.237 Because it is almost exclusively a byproduct of nuclear weapons production,238 a logjam in storage or disposal could hinder nuclear weapons production. For this reason, DOE and Congress worked to expedite a clear "path forward" for this waste and give it a high priority [32 ELR 11082] for construction and operation of a disposal site. Consequently, DOE completed construction and began shipping and loading transuranic waste to the WIPP,239 on March 26, 1999—at least a decade ahead of the high-level waste repository, now slated for Yucca Mountain in Nevada. The WIPP site is the world's first deep geologic waste repository. Its "opening" is heralded by some as the beginning of permanent nuclear waste repositories, with the Yucca Mountain repository in Nevada next in line. Others note that disposal of stored transuranic waste in WIPP is not expected to address the large amounts of buried transuranic waste240 that presents more immediate threats to groundwater.241 Because of such unresolved issues, and because relatively little transuranic waste has thus far been shipped to WIPP, its "opening" does not warrant inclusion on this Article's discussion of the past 10 years in radioactive waste control. The operation of WIPP may warrant such historic status in another 10 years as part of a 20th anniversary review of the Rio Summit.242

The legal path to opening WIPP was the WIPP Land Withdrawal Act243 enacted in 1992, which established a process for external regulation of the site by EPA,244 and it cleared the way for the land to be transferred for DOE use under the Federal Land Policy and Management Act.245 The WIPP experience with external regulation246 provides an example of a structured regulatory environment providing a more reliable method for conducting nuclear operations. Seeking to elude regulatory requirements has often lead to delays and stronger public opposition than when regulatory approvals were sought.

WIPP is probably the only nuclear waste facility that was deliberately, if imperfectly, sited and designed with very long-term disposal in mind. Most nuclear weapons production sites became de facto nuclear waste disposal but were historically selected for reasons other than good waste containment. For example, the Hanford Site and the Savannah River Site were selected in large part because of the ready access to large volumes of water for cooling the production reactors. The Rocky Flats site was selected in part because its scenic location against the dramatic "flatirons" of the front range of the Colorado Rocky Mountains, combined with the remoteness, were expected to be desirable for producing plutonium components and employing scientists who had worked at the scenic Los Alamos site in New Mexico.247 DOE has indicated that these three sites, which were never selected for waste disposal, will contain nuclear waste and radioactive contamination in perpetuity.248 If sustainability in nuclear waste control is to be improved, it will require that the full life cycle of costs and environmental implications will be considered, rather than focusing on locations where the local community, eager for jobs, is willing to accept it, such as the Carlsbad, New Mexico, community. Some of these lessons are offered by examining the process for opening WIPP could be useful for any consideration of strengthening international nuclear controls.

Despite remaining uncertainties about the long-term success of the WIPP disposal site, it is indisputable that the opening of WIPP represents a significant change in transuranic waste management to the 1992 Rio Summit. Also, a necessary step toward addressing the serious remaining environmental threats posed by the existing buried radioactive waste chronicled by DOE's comprehensive inventory of transuranic waste buried in the 1990s is acknowledging that a problem exists. Nonetheless, these steps toward effective management are limited and uncertain. Significant and clear progress on sustainable long-term transuranic waste control still eludes us.

C. Low-Level Waste

Reducing the amount of commercial low-level radioactive waste and increasing the amount of information availability, has generally pushed the United States toward greater sustainability in low-level waste control. Changes in low-level radioactive waste controls during the last decade, however, should be considered in the context of the fundamental disconnect regarding the legal categorization and the potential radioactivity: perhaps low-level waste control cannot ultimately be sustainable as currently defined. It is important to remember that low-level waste includes any [32 ELR 11083] waste not classified as high-level transuranic or another type of radioactive waste. It generally contains relatively low levels of radioactivity, but it can also include relatively high levels of radioactivity and typically includes radionuclides249 that are as long-lived as those found in high-level waste.250

The NRC regulates commercial low-level waste,251 whereas low-level waste generated by DOE is not independently regulated. Regulation of DOE low-level waste consists of DOE oversight of its contractors under a set of "Orders,"252 which can result in fines and penalties using DOE's Price-Anderson authorities. DOE remains "self-regulating" for any low-level waste generated by DOE facilities. Concerns about the potential safety and environmental impacts of low-level waste in part drove an effort during the past decade to eliminate the self-regulation by DOE of its low-level waste management. Congress (prior to 1995) and Clinton Administration officials made serious efforts to increase DOE accountability and shift regulation of low-level waste to the NRC,253 but shifting political sands foiled these attempts.

The management of low-level radioactive waste clearly illustrates the changing dynamic in nuclear waste control despite apparent deadlock. Moreover, the changes in low-level waste dynamics since 1992 offer a parable for other waste management issues, that has sometimes been referred to as the "marshmallow" theory of waste management: put pressure in one area and it causes the system to bulge out in another area.

To assess the changes occurring in the world of low-level waste, we need to examine the two separate sources of low-level waste: commercial low-level waste and government-generated low-level waste, primarily from DOE nuclear weapons facilities. By contrast, high-level liquid waste and transuranic, i.e., plutonium-contaminated, waste are uniquely generated by government sources, from nuclear weapons production. Generally, the amount of commercial low-level waste generated has responded to market forces, such as high costs, and declined dramatically over the past decade. During the same period, however, the amount of low-level waste generated by DOE has increased explosively, chiefly as a result of growth in DOE's Environmental Management program.254 In contrast to the commercial low-level waste sector, DOE is largely from market forces that would promote waste minimization.255 By 1996,256 the volume and radioactivity of low-level radioactive waste at DOE sites was more than twice the amount at commercial disposal facilities,257 and the gap continues to widen.258

In the decade since the 1992 Rio Summit, the realities of commercial low-level waste have profoundly changed in the United States. The principal change was that, as the costs for disposal increased, the volume of commercially generated low-level waste decreased. As low-level waste volumes dropped, the unit costs for disposal increased to cover fixed costs, which justified more investment in low-level waste reduction efforts, further reducing volume and increasing unit costs. For example, low-level waste generated in the Midwest region and shipped for disposal declined by about 83%—from a high of 114,700 cubic feet in 1989 to 20,000 in 1996. On the state level, the volume of low-level radioactive wastes disposed of from Pennsylvania decreased from more than 225,000 cubic feet in 1991 to less than 30,000 cubic feet in 1997, or about an 87% reduction.259

On a national level, the volume of commercial low-level waste disposed of in 1980 declined by more than one-half from 3.7 million cubic feet, to 1.4 million cubic feet in 1988.260 The decline in low-level waste generation accelerated during the 1990s. By 1997, only 320,000 cubic feet of commercial low-level waste were generated261 and by 1999, [32 ELR 11084] the volume declined to 272,000 cubic feet.262 Thus, from 1980 to 1999, we saw a 90% reduction in commercial low-level waste generation, despite a 50% increase in the number of nuclear power plants during that time.263

Another fundamental change in commercial low-level waste management was that disposal capacity did not grow as expected. Legal and political challenges to siting new low-level waste disposal facilities, combined with plummeting demand due to waste minimization; the result: no additional waste disposal sites were developed since the passage of the Low-Level Radioactive Waste Policy Act (LLRWPA)264 in 1980 despite spending approximately $ 600 million by various low-level waste siting authorities.265

When Congress passed the LLRWPA of 1980, it envisioned a nationwide state-level system for managing low-level waste. It gave states responsibility for providing disposal capacity for commercial low-level radioactive waste.266 The Low-Level Radioactive Waste Policy Amendments Act of 1985267 sought to strengthen this system with a series of incentives for states to develop new low-level waste disposal sites or join compacts with other states. The changes in the low-level waste situation were not anticipated when Congress put together the LLRWPA, which assumed a steadily growing demand for low-level waste disposal capacity. The low-level waste management framework, anticipating a bumper crop of new commercial low-level waste disposal sites, set in place incentives for developing new sites premised on inflexible demand. Among other requirements, the 1985 Amendments directed states to establish "compacts" for the sharing of low-level waste disposal sites, and set a deadline of 1993 for states to join compacts or risk being shut out of disposal facilities out of state.268 By 1996, the LLRWPA required states to take title to low-level waste generated within their states if the states failed to join a compact or provide for disposal of low-level waste.

In 1992, the U.S. Supreme Court struck down the core of the Act as an unconstitutional mandate, ruling that Congress can encourage but not require the states to open such dumps, and states are free to choose not to if they wish.269 This ruling ultimately helped create significant pressures on low-level waste generators to reduce the waste they produce because they could not count on states being required to establish new low-level waste disposal facilities. At the time of the 1992 Earth Summit, there was a rumor of impending crisis regarding whether the LLRWPA would work and whether states would form compacts and deal with the low-level waste. In fact, by reducing low-level waste generation and finding disposal sites, however distant or expensive, no low-level waste crisis emerged.

Although the U.S. management of low-level waste matured in the last 10 years by embarking on significant waste minimization efforts, the long-term sustainability of U.S. low-level waste disposal is far from mature. First, the United States continues to rely almost entirely on disposal of low-level radioactive waste in shallow trenches. By contrast, European countries typically dispose of low-level radioactive wastes in above-ground concrete vaults, which are designed to last for more than 200 years, or roughly 10 times the half-life of many of the radioactive wastes.270 These vaults not only provide better containment, but also enable future generations to more readily monitor and retrieve wastes, if necessary. In the United States, relatively few waste vaults have been built, and where they have been built, they have not been widely used for economic reasons. Lacking a regulatory mandate, commercial disposal facilities would be at an economic disadvantage if they built vaults while their competitors simply continued to dispose of waste in trenches. Similarly, officials at DOE's Savannah River Site have seldom used the disposal vaults at the site to reduce costs compared to using traditional landfills.

Second, the United States has not developed a system for long-term stewardship of low-level waste sites after they are closed. In theory, each private waste site should have sufficient financial bond authority to support long-term cleanup and stewardship. Also, DOE has legal authority to take responsibility for long-term stewardship of residually contaminated private sites.271 After years of discussion, DOE signed an Agreement in Principle272 with the NRC in 2001 to begin a process to deal with these sites. Since then, however, no progress has been made on developing a long-term stewardship program, despite several sites that are moving forward with decontamination and decommissioning demanding resolution of this issue.273

[32 ELR 11085]

Until the United States grapples with the safety of disposal and the long-term stewardship, the sustainability of the ongoing disposal of low-level radioactive waste will be fundamentally questionable.

D. Mixed (Hazardous and Chemical) Waste

During the decade since the Rio Summit, an almost entirely new area of nuclear waste control has emerged, called "mixed waste" (radioactive waste mixed with hazardous chemicals regulated by RCRA).274 Although high-level waste and transuranic waste are often "mixed," the term generally refers to low-level mixed waste, which presents certain technical275 and regulatory problems.276

At the time of the Rio Summit, the regulation of mixed waste was being debated in Congress in the Federal Facilities Compliance Act (FFCAct).277 States sought clear authority to impose unilateral administrative orders, fines, and penalties under RCRA. DOE successfully argued that, barring an explicit waiver by Congress, it enjoyed "sovereign immunity."278 During the debate to amend RCRA and provide an explicit waiver of sovereign immunity, DOE argued: (1) that RCRA was not designed to deal with the special problems associated with mixed waste; (2) that demanding compliance with RCRA for mixed waste could harm workers; (3) because it was technically impossible to comply with RCRA; and (4) that states were seeking authority to levy fines and penalties merely to reach into the "deep pockets" of the federal government, and consequently waiving sovereign immunity would amount to allow states to make a "run on the bank" against the federal government. Through years of hearings and research, DOE's arguments were found to be ungrounded in fact, and Congress passed the FFCAct,279 which amended RCRA and partially addressed the issues considered in U.S. Department of Energy (DOE) v. Ohio280 regarding sovereign immunity by the federal government for environmental laws.281

In the wake of the uncertainties about complying with the FFCAct, DOE developed a process to work with states through the National Governors Association (NGA) Center for Best Practices. Using the NGA forum to establish a constructive dialogue, state regulators and DOE staff worked successfully to deal with mixed waste compliance issues through regular meetings and extensive information sharing. This process could be a model for working through new nuclear waste control issues where broad dialogue and the use of open and timely access to information can serve as an antidote to miscommunication.

DOE and states, with none of the parade of horribles materializing that DOE had predicted, have successfully implemented the FFCAct. But, seven years after the enactment of the FFCAct, Congress passed the National Nuclear Security Administration Act (NNSA Act)282 to give the nuclear weapons enterprise more autonomy from DOE. It may have also provided the nuclear weapons enterprise even greater sovereign immunity protections than those addressed in DOE v. Ohio. In this way, the NNSA Act takes a step backward to ward a structure that many contend produced the environmental problems found at DOE facilities today.283

The U.S. mixed waste management program has grown from only faint recognition of the issue, to developing technologies and facilities to manage the waste. Perhaps more importantly, the federal government has developed, through the NGA, a mode for resolving issues with states before they become problems using mixed waste as the first successful test case. The United States remains far from able to demonstrate a sustainable system of managing mixed waste, but significant progress has been made. If the new NNSA seeks to elude compliance with state enforcement of mixed waste requirements it will reflect an area of serious backsliding to the bad old days of federal sovereign immunity for environmental compliance.

E. Environmental Restoration of Contaminated Facilities

For over 40 years DOE and its predecessors—the AEC and the Energy Research and Development Administration (ERDA)—operated the U.S. nuclear weapons complex in secrecy and essentially devoid of environmental oversight and regulation.284 Largely as a result, DOE is now faced with an enormous environmental cleanup problem—1.7 trillion gallons of contaminated groundwater (four times the [32 ELR 11086] daily U.S. water consumption) and 40 million m3 of soil and debris (enough to fill approximately 17 professional sports stadiums); 18 metric tons of weapons-usable plutonium (enough for 2,250 nuclear weapons)285; more than 2,000 tons of intensely radioactive spent nuclear fuel; and about 4,000 facilities to decontaminate and decommission.286

One of the revelations in the decade since the Rio Summit has been the acknowledgement of the massive scale of contamination of nuclear facilities, particularly nuclear weapons facilities for waste disposal and contamination caused before current controls were in place. The new awareness it has brought grew as a result of steady uphill efforts by some DOE staff, state governments, and NGOs to improve management and accountability of the cleanup process.

During the mid to late 1980s, DOE's desire to restart the nuclear weapons production facilities, caused it to enter into several compliance agreements with states. A senior DOE official later acknowledged that production demands drove the increasing number of compliance agreements:

We got into the compliance agreements, in my view, because we had to stay in production to produce the requirements for the military. And we had to give them their due in the jurisdictions where we left messes, and we should do that; we should do more, better, sooner, quicker. I mean we really mucked up Tennessee. I mean that is a dirty, dirty place. It is not as dirty as Hanford.287

Since then DOE has undertaken a massive cleanup effort, funded at more than $ 6 billion annually. Much of this funding is directed at facility support and infrastructure maintenance,288 but almost a generation of DOE employees has sought to reduce this overhead burden despite resistance from political, economic, and bureaucratic interests, as well as some legitimate technical issue requiring resolution through institutional changes of investment in science and technology.289

Since 1992, the Environmental Management program has matured to a broad realization that "cleanup"—in the normal sense of the term—is physically and economically impossible with available technology. As a result of this realization, DOE began to address to need for an effective long-term stewardship program, including significant investments in science and technology to improve the cleanup tools and its understanding of the problems.290 This maturity includes recognition that cleanup decisions must involve consideration of long-term consequences, and that these consequences must begin with facility design and construction, not wait until cleanup.291 Regrettably, DOE appears to have reversed course and is actively seeking to shirk its responsibility for long-term stewardship.292 Consequently, it appears that the Environmental Management program will not only be continuing for another generation, but a new cleanup program will need to be created for another generation to address the forgotten problems of the Cold War that, for political expedience, were only partially addressed during the first decades of the cleanup program.

VI. Recommendations

The Rio principles provide a useful foundation on which to support a more effective and sustainable nuclear waste control regime. The fact that nuclear waste controls have been neither completely effective nor sustainable results less from the failure by the U.S. to implement these principles as the need to abide by more fundamental and broad-based principles. The section summarizes several recommendation that address both the need to better implement existing principles and control mechanisms, and the need to address some more fundamental and broad-based issues. Developing and using these additional principles and measures are difficult for governments, especially international bodies such as the United Nations and its IAEA. In addition, the fundamental nature of nuclear waste—long-lived and inextricably linked to vital national security concerns—may make it impossible for nuclear waste controls to be entirely sustainable, regardless of government measures taken.

A. Use Existing Institutions, Laws, and Science More Effectively

Before developing any new control measures or institutions, we should take a careful look at whether existing institutions, laws, and technical measures are being used to the fullest extent. Perhaps the best example is the use of NEPA293 —the premier statute of the modern era of environmental laws. The requirements of NEPA, if carried out fully in good faith, would include consideration of the long-term sustainability, including life-cycle costs of any proposal that would involve generating or managing radioactive wastes. Certainly NEPA could be usefully applied to many environmental issues, but one element of NEPA seems uniquely suited to application to radioactive waste control, and has been particularly ignored: consideration of "irreversible and irretrievable commitments of resources."294 Because of the long-lived—essentially permanent—nature of some radioactive wastes, more careful consideration of this section of [32 ELR 11087] NEPA could require that many projects and operations are scrutinized more carefully than they have been traditionally.

Financial costs can sometimes be a useful indicator of environmental impacts. Too often, however, the full costs of undertaking a nuclear project, including waste management costs and essentially permanent preemption of the use of the land, are not fully considered. In 1994, Congress included in the Defense Authorization Act a requirement that DOE report regularly on the estimated life-cycle costs of the environmental cleanup needs of the nuclear weapons complex.295 Unfortunately, DOE has essentially ignored this statutory requirement.

B. Reform or Develop New Institutional Mechanisms

The two primary nuclear waste control organizations in the United States—the NRC and DOE—have been regularly criticized for being ineffective at carrying out their missions.

The NRC is most often accused of underregulating nuclear waste. The scope of the NRC regulatory purview is often limited by funding and personnel resources. The NRC's funding is severely limited by the legal requirement that they fund their operations largely by fees on industry.296 In making decisions on whether to regulate certain wastes, the NRC necessarily must consider its ability to fund new activities from revenues on the regulated entity. Consequently, the NRC has declined to take on new regulatory duties such as uranium byproduct waste (known as 11e2 wastes) that were generated prior to 1978, when the Uranium Mill Tailings Reclamation and Control Act was enacted.297 As a result, one set of rules is applied to uranium mill tailings waste generated after 1978, and no NRC controls are imposed on identical wastes generated prior to 1978. These illogical results could be addressed by NRC funding reforms that allow exceptions to the self-funding requirement for certain activities that are unlikely to produce any fee revenues because of a moribund industry sector.

The failure of DOE to address the environmental issues associated with nuclear waste and nuclear weapons operations results in part from the inherent conflict between its mandate to promote nuclear technology, and its mandate to self-regulate its nuclear safety and some waste management activities.298 Numerous proposals to eliminate DOE have been made, but stumbled on a lack of understanding of DOE's significant role in nuclear weapons production and a lack of a viable organizational alternative.299 Within DOE, however, realignment could help address the emerging significant issues, such as nuclear material stabilization and post-cleanup stewardship. In 1994, DOE established a new Office of Nuclear Materials Disposition. This office has thus far been producing paper studies examining the feasibility, alternatives, impacts, and costs of various alternatives toward making decisions. It is not clear how effectively this new office will make the transition from these largely "staff" tasks to "line" implementation tasks like construction and operations. A separate implementation organization may be required to carry out this critical effort of stabilizing surplus plutonium.

EPA and DOE have completed cleanup of dozens of nuclear waste sites. These cleanups have generally involved on-site stabilization or containment rather than removal. Consequently, long-term stewardship of the residual contamination and waste is required. Long-term stewardship of radioactive waste involved longer periods of time, often perpetual care, than is generally required for chemical contamination.300 There is a serious question about the ability of and organization with competing missions, such as EPA or DOE to carry out this mission for the long periods of time required.301 DOE announced its intention to seek to "develop a strategy for transferring lands that are not owned by DOE or associated with DOE missions but for which it is slated to perform long-term stewardship to other governmental agencies with land management missions,"302 e.g., Bureau of Land Management and the U.S. Army Corps of Engineers.303 It is not clear that these existing agencies, who also have competing missions and little funding, are capable of taking on this complicated new and long-term commitment for public health and environmental protection of residual radioactive contamination and wastes. A new entity—government or private—that is insulated from competing missions demands, and funded with a long-term trust fund mechanism may be required to address the long-term stewardship challenges for radioactive waste control.

C. Establish a Trust Fund for Long-Term Stewardship

As discussed above304 radioactive waste control requirements inherently involve transferring liabilities to future generations. Among other things, this creates serious uncertainties about whether resources will be available in the future to support the necessary controls on wastes generated decades earlier. In response, long-term private-sector funding [32 ELR 11088] mechanisms have been established for nuclear waste.305 The states of South Carolina and Washington, where private low-level waste sites operate, have established perpetual care accounts to ensure long-term maintenance of waste sites after closure.306 The federal government currently exempts itself from RCRA financial assurance requirements applicable to private parties.307 In one case, however, DOE currently funds a limited trust fund established for a disposal site in Oak Ridge, Tennessee.308

There are significant uncertainties about the long-term viability of these individual trust fund mechanisms, such as whether the amount is sufficient to fund all of the work, and whether the funding will remain devoted to the task or be siphoned off for more politically powerful, if often ephemeral, interests.309 The need to develop a reliable long-term funding source has been widely recognized,310 but the federal government continues to insist that the annual appropriations process is adequately reliable. The federal government should begin immediately to establish a reliable long-term funding mechanism to support the long-term stewardship of closed cleanup sites where residual waste and contamination remain. These funds should be sufficient to support not only the routine monitoring and maintenance of the sites, but also, information management and community liaison to ensure that individuals and organizations who need to know exactly where the contamination is located, such as developers, construction crews and utility workers, can get ready access to accurate information.311

D. Improve Scientific, Technical, and Institutional Basis for Radioactive Waste Management

More than a half century after the splitting of the atom, significant uncertainty remains about the health effects of ionizing radiation and effective management of radioactive waste. Moreover, because of the decades of secrecy and false information supplied by the federal government and private companies, a much larger lack of public consensus exists about the risks and acceptable management practices for radioactive waste control. Unlike many other areas of environmental management, e.g., air and water pollution, no authoritative texts and body of research exists for radioactive wastecontrol. To a greater extent than in other environmental fields, debates about radioactive waste controls quickly become mired in a battle of experts, each with there own perspectives, data sets, or analyses of the same data. Funding to address the health impacts of ionizing radiation is too often clouded with suspicions that the research is being directed toward a predetermined outcome.312 Also, the risk assessment of radioactive waste is too often closely associated with its risk management,313 so that enormous pressures exist to violate the precautionary principle.314

The U.S. government should demonstrate more leadership in investing in peer-review scientific research and analysis toward a goal of establishing widely accepted norms for radioactive waste management. DOE, for example, has conducted much of its research outside of the standard scientific process of peer review. The public acceptance of even the most rigorous and objective science, however, will continue to be linked closely to the overall veracity of the agency producing the research and the "nuclear establishment," in general. The funding and performance of this research may need to be decoupled from organizations and institutions, such as DOE and nuclear utilities, who could benefit from skewed outcomes to the research. Funding from more objective organizations that are not mandated to develop nuclear weapons or promote nuclear technologies, e.g., National Science Foundation and EPA, could help build a much-needed body of trusted research. The goal of a broad initiative in improving the scientific basis of radioactive waste control should be a more civilized debate using widely recognized and trusted sources of information, and widely supported outcomes using a more open and efficient decisionmaking process.

E. Explicitly Connect Nuclear Waste Management With Nonproliferation Issues as Well as Environmental and Safety Issues

It was not by accident or oversight that the 1992 Rio Summit provided limited attention to radioactive waste control and [32 ELR 11089] failed to address nuclear nonproliferation or linkages between radioactive waste and nuclear weapons. As a U.N.-sponsored event, the Rio Summit relied heavily on the U.N.'s IAEA for support regarding radioactive waste control, which is often regarded as a specialized technical field too technically complex for outsiders. The IAEA has achieved remarkable success in coalescing agreements among widely divergent international participants, in spite of fundamental conflicts in its mission. In addition, the IAEA is appropriately devoting its limited resources to the urgent priorities of nuclear weapons materials controls and safeguards.

Nonetheless, there are some inherent limitations with continued reliance on the IAEA, as currently configured, for international implementation of waste control and nonproliferation objectives. The IAEA is expected to simultaneously promote nuclear technology and to control it. These conflicts have resulted in significant limitation on the ability of the IAEA to impose meaningful controls on the spread of nuclear technologies that could threaten world peace and public health and the environment. In the United States, these conflicting dual missions were found to be unworkable and resulted in the separation of the AEC in 1972, resulting in the establishment of the NRC and the ERDA (later DOE). One long-time nuclear analyst has suggested that "the IAEA membership should vote to amend the agency's statute to relieve the Board of Governors of its safeguards authority and limit the board to pursuing the agency's nuclear promotional activities."315 Such a dramatic change is unlikely, however, as long as limited resources are required for the nonproliferation missions that overshadow other radioactive waste control missions, and nuclear technologies are perceived to be valuable for promoting international economic development.

The summit in Johannesburg could usefully address the benefits of reorganizing the missions of the IAEA to provide adequate independence of its regulatory functions from its role in promoting nuclear technologies. The U.S. system of "checks and balances" may not be perfect, but it provides an improved institutional framework to allow for meaningful controls on these critical materials and technologies. Moreover, future discussions about global radioactive waste control issues, should recognize seamless connection between certain nuclear weapons proliferation and nuclear waste issues, e.g., spent nuclear fuel reprocessing and high-level waste management. The artificial barrier between national security and environmental issues should be broken down. In light of the extraordinary importance of effectively controlling the proliferation of nuclear weapons, especially in the wake of September 11, no potential barrier to improved controls should remain unquestioned.

F. Openness and Democracy

Nuclear technologies and radioactive waste controls have a serious problem with openness and democracy. Although nuclear power provides one-fifth of U.S. electrical power and U.S. government officials of both political parties assert that nuclear power is expected to remain a vital element of our power supply, no operational commercial nuclear power plants have been ordered in a generation. And although successive administrations from both political parties have asserted that U.S. national security relies on a reliable arsenal of nuclear weapons, no major nuclear weapons production facility has been built and operated for nearly 25 years. The irony is that the proponents of nuclear power seem most opposed to greater openness of information and decision-making, while opponents of nuclear technologies argue for greater openness.

Whatever one's view about whether the United States should build more nuclear weapons production facilities and power plants, there is clearly a troubling disconnect between government policy statements and the reality of nuclear technology. The source of this disconnect can likely be traced back to the enormous gulf that exists between government policy and public acceptance for new facilities, including waste disposal sites, borne of mistrust in things nuclear. If this disconnect between policies and the public support continues, it can have a corrosive effect on our democratic institutions and confidence in government. Mending this tear in the fabric of democracy will require a long-term and systematic effort at greater openness between government decisionmaking and the public including a free flow of information.

Unfortunately, because of the inherent technical characteristics of nuclear weapons and nuclear waste, security concerns about waste could greatly limit the amount of information made available and the access to decisionmaking that is practical. Consequently, if we accept that sustainability in nuclear waste control requires openness and democratic decisionmaking, then the imperative of effective security controls could make it impossible to have completely sustainable nuclear waste controls.

VII. Conclusion

Both the Rio Declaration and Agenda 21 were conspicuously silent on the need for nuclear waste control to complement, not frustrate, global anti-terrorism security and nuclear nonproliferation efforts. Any thorough assessment of sustainable development issues must address these issues in dealing with radioactive waste controls.

When the Cold War ended and Congress began shifting funding from nuclear weapons to the environmental cleanup and radioactive waste management,316 the bureaucracy absorbed the money, but the changes were more glacial than historic. The funding of accounts changed, but the specific facility operations and individual personnel did not. Consequently, DOE's environmental budget has essentially been used to support nuclear weapons facility infrastructure and operations in many cases. Successive DOE managers have tried with limited success to reduce the overhead costs [32 ELR 11090] and eliminate excess facilities.317 But, these efforts have often been stymied by pressure from congressional delegations, contractors, local government, and economic development officials.318

The official assumption during the Cold War was that nuclear weapons facilities would need to operate in a classified mode indefinitely to protect national security. Consequently, the operations were partially immune from regulatory oversight319 and no plans or budget estimates were made for stabilizing, decommissioning, decontaminating, or dismantling the facilities.

The existence of significant amounts of nuclear waste, large-scale use of nuclear power and large numbers of nuclear weapons and surplus fissile material, and their attendant health and security risks, dictates a containment and management strategy for the foreseeable future, regardless of whether the enterprise is sustainable in the long run. The relatively unique features of nuclear power—producing extraordinarily long-lived320 man-made elements, e.g., plutonium, with potentially catastrophic security consequences and intensely radioactive isotopes (cesium-137, strontium-90, and cobalt-60)—render it ultimately unsustainable with current technologies.

The maturing of radioactive waste control and reconciling nuclear technologies with sustainability requires that we deal with the inextricable relationships to national security. Moreover, national security must be refined to include non-proliferation, environmental security and economic security as well as vigorous democratic institutions. Reconciling the use of nuclear technologies with an open democracy will be perhaps the biggest challenge to sustainable radioactive waste control. National security is truly threatened when the people must override their common sense in order to believe their government.


2. "Waste" is used here to include spent nuclear fuel and radioactive byproduct (11e2) byproduct material as well as low-level, high-level, and transuranic (TRU) nuclear wastes.

3. Prior to this, the only known nuclear fission reaction on earth occurred deep in a mountain of naturally enriched uranium near Oklo in the West African Gabon Republic. A Natural Fission Reactor, SCI. AM., July 1976, at 36; Alvin Weinberg Assessing the Oklo Phenomenon, 266 NATURE 206 (1977). Of course, nuclear reactions occur in stars throughout the universe, which fill the night sky, but are no closer than 93 million miles away from earth.

4. Ancient chemists, known as "alchemists," sought to convert lead and other common elements into gold. Only later did nuclear theory recognize the "indivisibility" of elements composed of atoms, which by definition is an "irreducible constituent of a specified system." THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (1978). Paradoxically, this recognition of the conventional indivisibility of atoms led to the capability of sustained chain reaction splitting of atom in reactors.

5. Former Enrico Fermi collaborator and Director of the Ridge National Laboratory, Alvin Weinberg, wrote in an oft-quoted passage:

We nuclear people have made a Faustian bargain with society. On one hand we offer in the breeder reactor an almost inexhaustible source of energy. But the price we demand of society for this magical energy source is both a vigilance and a longevity of our social institutions to which we are quite unaccustomed.

Alvin Weinberg, The Nuclear Imperatives, 14 NUCLEAR NEWS 33-37 (1971); Alvin Weinberg, Social Institutions and Nuclear Energy, 177 SCIENCE 27-34 (1972).

6. WORLD COMMISSION ON ENVIRONMENT AND DEVELOPMENT (WCED), OUR COMMON FUTURE 43 (1987). Named for its chair, Norwegian Prime Minister Gro Harlem Brundtland, the WCED published the commission's report, Our Common Future.

7. John P. Holdren et al., The Meaning of Sustainability: Biogeophysical Aspects, in DEFINING AND MEASURING SUSTAINABILITY 3-17 (Mohan Munasinghe & Walter Shearer eds., 1995). Holdren et al. concluded that, "the remedy, of course, is to ascertain what level of harm is tolerable in exchange for the benefits of the activity that causes the harm, the cost-benefit approach that is applied to most pollutants." Id. See also ROBERT L. GALLUCCI, THE CONTINUING RELEVANCE OF NUCLEAR POWER TO THE THREAT OF NUCLEAR WEAPONS PROLIFERATION, REMARKS PREPARED FOR THE NUCLEAR CONTROL INSTITUTE'S 20TH ANNIVERSARY CONFERENCE (2001), available at http://www.nci.org/conf/gallucci.htm.

8. Richard Rhodes & Denis Beller, The Need for Nuclear Power, FOREIGN AFF., Jan./Feb. 2000, at 30-44; Richard Rhodes, Prepared Testimony Before the Subcommittee on Energy and Environment, Committee on Science, U.S. House of Representatives, July 25, 2000; SEN. PETE V. DOMENICI, A NEW NUCLEAR PARADIGM, INAUGURAL SYMPOSIUM, BELFER CENTER FOR SCIENCE AND INTERNATIONAL AFFAIRS (1997); SEN. PETE V. DOMENICI, A NEW NUCLEAR PARADIGM: ONE YEAR OF PROGRESS (1998) (David J. Rose Lecture, Massachusetts Institute of Technology, Cambridge, Massachusetts, Nov. 13, 1998); and Douglas S. McGregor, Rethinking Nuclear Power, 17 THE NEW AM. 9 (2001), available at http://www.thenewamerican.com/tna/2001/04-23-2001/vol7no09_nuclear.htm (last visited May 21, 2002). See also Nuclear Energy Institute, Upfront, at http://www.nei.org (last visited Apr. 23, 2002).

9. Matther Bunn, Enabling a Significant Future for Nuclear Power: Avoiding Catastrophes, Developing New Technologies, Democratizing Decisions—And Staying Away From Separated Plutonium, in PROCEEDINGS OF GLOBAL 1999: NUCLEAR TECHNOLOGY — BRIDGING THE MILLENIA (1999) (presented at a conference held in Jackson Hole, Wyoming, August 30, 1999, to September 2, 1999, by the American Nuclear Society).

10. JONATHAN HARRIS, BASIC PRINCIPLES OF SUSTAINABLE DEVELOPMENT (Tufts University Global Development and Environment Institute, Working Paper No. 00-04, 2000); see also Global Development and Environment Institute, Welcome to G-Dae, at http://ase.tufts.edu/gdae (last visited Apr. 23, 2002).

11. Rio Declaration on Environment and Development, U.N. Conference on Environment and Development, U.N. Doc. A/CONF.151/5/Rev. 1, 31 I.L.M. 874 (1992) [hereinafter Rio Declaration].

12. The technical term typically used is "particulates," particularly "PM[10]," i.e., particulate matter with a median diameter less than or equal to 10 microns, which results in greater potential health effects due to increased respirability and ability to be inhaled and lodged in the deep lung, including the aveoli. The term "soot" is more economical and readily understood.

13. John P. Holdren & Kirk R. Smith, Energy, the Environment, and Health, in WORLD ENERGY ASSESSMENT: ENERGY AND THE CHALLENGE OF SUSTAINABILITY (2000). Holdren's earlier paper on the meaning of sustainability concluded that "the remedy, of course, is to ascertain what level of harm is tolerable in exchange for the benefits of the activity that causes the harm, the cost-benefit approach that is applied to most pollutants." Holdren et al., supra note 7.

14. Some radioactive materials are, in fact, less harmful than many poisons because when ingested orally (eaten or in drinking water), they can quickly pass through the human body with little effect in some cases (the author does not advise this at home or anywhere else). However, when inhaled, nuclear material has a grave potential for causing cancer or other health problems, especially when lodged in alveoli in the deep lungs. Other radionuclides such as cesium-137 and iodine-128 can be selectively bound up into bone or thyroid tissue, respectively, causing chronic problems, such as bone cancer or thyroid disease.

15. This term has been used by some reprocessing proponents to convey an environmentally friendly image to a technology that was developed and used for producing plutonium and other essential nuclear materials for weapons.

16. "Fissile" refers to the ability of a material, e.g., plutonium (Pu)-239 and uranium (U)-235, to undergo a nuclear chain reaction releasing enormous amounts of energy at many orders of magnitude greater than a comparable amount of chemical explosive.

17. The purity of the Pu-239 extracted from nuclear power reactor fuel is not ideal, but nonetheless useable, for a nuclear warhead with a significant yield. The United States demonstrated such a device in the early 1960s.

18. The U.N. Charter, which created the United Nations at the end of World War II, is specifically intended to achieve international peace and security. See John C. Dernbach, Sustainable Development: Now More Than Ever, 32 ELR 10003 (Jan. 2002).

19. Each of the other three elements—economic development, social development, and national governance that secures peace and development also have significant, albeit less unique nexus to nuclear technology.

20. John C. Dernbach, Sustainable Development as a Framework for National Governance, 49 CASE W. RES. L. REV. 1, 85-90 (1998).

21. See Section IV.B., infra, entitled U.S. Progress and Backsliding on Rio Principles and Agenda 21 Activities.

22. 42 U.S.C. §§ 4321-4370d, ELR STAT. NEPA §§ 2-209.

23. U.N. Conference on Environment and Development (UNCED), Agenda 21, U.N. Doc. A/CONF. 151.26 (1992), available at http://www.un.org/esa/sustdev/agenda21chapter28.htm [hereinafter Agenda 21].


25. In contrast to the U.S. system, radioactive waste is categorized in most countries, particularly European nations, according to the level and type of radioactivity contained in it.

26. This inventory of waste types is based largely on undecayed radioactivity levels, using available data. A more precise comparison of radioactivity would require calculating the relative decay of the various radioisotopes in each waste type. Generally, however, long-lived isotopes, e.g., uranium and plutonium, emit less radioactivity (per unit of time), and are disproportionately found in high-level byproduct and TRU wastes. Consequently, although the average radioactivity for these waste types might have changed less than other waste types, e.g., low-level waste, they nonetheless contain large amounts of mixed fission products, many of which decay relatively rapidly.

27. The volume of spent nuclear fuel is largely a theoretical data point because it must be stored with ample separation between fuel rods to avoid a criticality (spontaneous chain reaction). Nonetheless the volume of spent nuclear fuel (commercial and DOE-owned spent nuclear fuel are approximately 10,000 and 1,000 m3, respectively) is roughly 1% of the amount of low-level waste (commercial and DOE-disposed/stored is more than 1 million m3). See U.S. DOE, INTEGRATED DATABASE—1996: U.S. SPENT FUEL AND RADIOACTIVE WASTE INVENTORIES, PROJECTIONS, AND CHARACTERISTICS 0-11 (1997) (DOE/RW-0006. Rev. 13).


29. Also known as "11e2" waste, which is the relevant section of the Atomic Energy Act. See 42 U.S.C. § 2014(e)(2).


31. Id. at 4-1.

32. Agenda 21, supra note 23, P22.1 (paragraph within Chapter 22 on Safe and Environmentally Sound Management of Radioactive Wastes).

33. 42 U.S.C. § 2021; 10 C.F.R. pts. 61-62.

34. E.g., plutonium in concentrations less than 100 nCi/gram.

35. This contrasts with the use of the term in most other countries where radioactive waste categories are defined according to the level or longevity of radioactivity, rather than its source. See generally B.G. MEAGER & L.T. COLE, NATIONAL LOW-LEVEL RADIOACTIVE WASTE MANAGEMENT PROGRAM, COMPARISON OF LOW-LEVEL WASTE DISPOSAL PROGRAMS OF DOE AND SELECTED INTERNATIONAL COUNTRIES 236 (1996); Scott Saleska, Low-Level Radioactive Waste: Gamma Rays in the Garbage, BULL. OF ATOMIC SCIENTISTS, Apr. 1990, at 19-25; ARJUN MAKHIJANI & SCOTT SALESKA, INSTITUTE FOR ENERGY AND ENVIRONMENTAL RESEARCH HIGH-LEVEL DOLLARS, LOW-LEVEL SENSE (1992). The term "intermediate waste" is typically used in many other countries to refer to what is generally referred to as TRU waste in the United States, but also includes some low-level waste, i.e., Class B and C low-level waste.

36. 42 U.S.C. § 10101 (16); 10 C.F.R. § 61.2. See generally MAKHIJANI & SALESKA, supra note 35.

37. This inaction reflects a stalemate among opposing sides that would like to see the existing U.S. waste definitions and classification system change so that it is more similar to European classification systems. For example, environmentalists might prefer low-level waste to be defined in a way that reflects the hazard and level of radioactivity. Nuclear industry officials might like the definition of high-level waste to be changed to allow for certain wastes to be excluded from a repository to make disposal easier, quicker, and cheaper. Both sides, however, fear the unpredictable outcome of opening up the legislation to amendment.

38. U.S. DOE, TOP-TO-BOTTOM REVIEW TEAM, A REVIEW OF THE ENVIRONMENTAL MANAGEMENT PROGRAM (2002). The intent of this recommendation, however, appears to emphasize the potential for reducing financial costs more than increasing public health protections. Also, DOE has failed to develop or seek any political consensus or coalition that would be necessary for enactment of statutory changes in waste category definitions.

39. 40 C.F.R § 261; see also 42 U.S.C. §§ 6901-6992k, ELR STAT. RCRA §§ 1001-11011.

40. In fact, despite the fact that most TRU waste contains hazardous chemical constituents that would otherwise be subject to RCRA regulations, Congress further exempted DOE from RCRA land disposal restrictions for the WIPP site in 1996. Waste Isolation Pilot Plant Land Withdrawal Act of 1992, Pub. L. No. 102-579, 106 Stat. 4777, as amended by the National Defense Authorization Act for Fiscal Year 1997, Pub. L. No. 104-201, §§ 3187-88 (1996).


42. 42 U.S.C. §§ 2011-2286i, 2296a-2296h-13 (including Price-Anderson Act).

43. See 10 C.F.R. § 962.

44. 42 U.S.C. § 6903(27), ELR STAT. RCRA § 1004(27). The regulation of mixed waste has a tortured history that largely preceded the Rio Summit. See generally David P. O'Very, Regulation of Radioactive Pollution, in CONTROLLING THE ATOM IN THE 21ST CENTURY (David P. O'Very et al. eds., 1994); Barbara A. Finamore, Regulating Hazardous and Mixed Waste at Department of Energy Nuclear Weapons Facilities: Reversing Decades of Environmental Neglect, 9 HARV. ENVTL. L. REV. 83 (1985); and Terrence R. Fehner & F.G. Gosling, Coming in From the Cold: Regulating U.S. Department of Energy Nuclear Facilities, 1942-1996, 1 ENVTL. HIST. 5 (1996).

45. Generally, liquid high-level waste includes the first and second cycle raffinate, i.e., nitric or other acid combined with the tributyl phosphate or other solvents, used for initial extraction of the plutonium of other nuclear materials, which includes most of the mixed fissions products, e.g., strontium-90, cesium-137, technetium-99, initially part of the spent fuel and target being reprocessed. It also includes the solids, such as crusts, salt cake, and other nonliquid materials that subsequently form in storage tanks.

46. More precisely, high-level wasteis defined statutorily by the Nuclear Waste Policy Act as "the highly radioactive material resulting from the reprocessing of spent nuclear fuel, including liquid waste produced directly in reprocessing and any solid material derived from such liquid waste that contains fission products in sufficient concentrations," and "other highly radioactive material that the [Nuclear Regulatory] Commission, consistent with existing law, determines by rule requires permanent isolation." 42 U.S.C. § 10101(12)(A). The Nuclear Regulatory Commission (NRC) has defined high-level waste by regulation to also include "irradiated (spent) reactor fuel (not intended for reprocessing)" and solidified high-level waste. 10 C.F.R. pt. 60. The term "reprocessing" generally refers to aqueous plutonium uranium extraction (PUREX) technologies, but could also include electrometallurgical or "pyro" processing.

47. If spent fuel is not intended for reprocessing, it is defined as high-level waste. DOE continues to distinguish spent fuel from other high level waste forms, e.g., raffinnate resulting from reprocessing spent fuel, despite DOE's 1992 decision to phase out reprocessing, and the subsequent decommissioning of all U.S. reprocessing facilities except at one site (the Savannah River Site in South Carolina), thereby making reprocessing of nearly 90% of DOE-owned spent nuclear fuel virtually impossible, without potentially dangerous interstate transportation of spent fuel. The reasons for DOE's irrational distinction include: (1) bureaucratic inertia; (2) a desire to elude independent external regulation, which might apply if it were declared a "waste"; and, fundamentally, (3) a hope by some in DOE (contrary to all objective evidence) that the spent fuel might someday be reprocessed because it represents a valuable nuclear material asset for weapons or energy, and should not be discarded as a "waste." Ironically, this view is shared by DOE's former nemesis in Russia's "Minatom" nuclear agency.

48. The volume of spent nuclear fuel is largely a theoretical data point because it must be stored with ample separation between fuel rods to avoid a criticality (spontaneous chain reaction). Nonetheless the volume of spent nuclear fuel (commercial and DOE-owned spent nuclear fuel are approximately 10,000 and 1,000 m3, respectively) is roughly 1% of the amount of low-level waste (commercial and DOE-disposed/stored is more than 1 million m3. See U.S. DOE, INTEGRATED DATABASE—1996, supra note 27.


50. All things being equal, risk is proportional to radioactivity. All things however are not equal, and one must be careful about making this generalization using the basic definition of risk as product of probability and consequence. Probability of exposure to low-level waste may be greater because workers are more likely to being exposed to low-level than high-level waste because of the more common occurrence of, and reduced safety standards applicable, to low-level waste. In addition, the practice of shallow land burial of low-level waste could result in more frequent inadvertent exhumation.


52. In particular, neptunium-237 and americium-241 can be extracted from liquid high-level waste to produce weapons-usable material. New Generation of Nuclear Weapons From Nuclear Waste, JANE'S DEFENCE WKLY., Mar. 31, 1999 (quoting David Albright). David Albright & Lauren Barbour, Troubles Tomorrow? Separated Neptunium 237 and Americium, in THE CHALLENGES OF FISSILE MATERIAL CONTROL (David Albright & Kevin O'Neill eds., 1999); Linda Rothstein, Explosive Secrets, BULL. OF ATOMIC SCIENTISTS, Mar./Apr. 1999, available at http://www.thebulletin.org/issues/1999/ma99/ma99bulletins.html#anchor1217541 (last visited June 3, 2002).

53. See DOE Order 435.1; 64 Fed. Reg. 29393 (July 14, 1999).

54. See Memorandum from Jessie Hill Roberson, Assistant Secretary for Environmental Management, U.S. DOE, to Director, Office of Management, Budget and Evaluation, Chief Financial Office (Nov. 2001).

55. Natural Resources Defense Council v. Abraham, No. CV-01-413-S-BLW, (D. Idaho), on remand Natural Resources Defense Council v. Abraham, 244 F.3d 742, 31 ELR 20547 (9th Cir. 2001). This straight-forward lawsuit seeking to compel DOE to abide by the Nuclear Waste Policy Act could have far-reaching implications. First, it could halt DOE's current regime of capping high-level waste in place after using only readily available late 20th century tank waste removal technology, and could require investments in a substantial long-term science and technology program focused on high-level waste in tanks. This would require reversing DOE's recent actions, which have essentially eviscerated the DOE environmental science and technology program. In 2002, DOE cut in half its environmental science and technology program and appointed a new director of the program with no experience in science and technology or research and development. Second, it could force DOE to internalize the costs of its reprocessing operations, which generate additional high-level wastes.

56. The desirable and somewhat unique characteristic of high enriched uranium (HEU) fuel is that it provides high flux neutrons, which are useful in the production of certain research and medical pharmaceuticals, and for materials testing, e.g., composite plastics used in skis and bicycles. The United States has sponsored a program—the Reduced Enrichment Research and Test Reactor Program—at the Argonne National Laboratory to replace the HEU fuels with low enriched uranium (LEU), i.e., not weapons-usable, high-density (HD) nuclear fuel, which provides comparable reactor performance, and convince foreign countries to use these HD-LEU fuels. The budget for this program, however, has been chronically underfunded.

57. The location of these reactors is not given here for security reasons. It is sufficient to indicate that they include many leading universities, including some communities where local residents objected to final shipments of foreign spent fuel for the phase out program, but who acceded to—or were silent about—continued and indefinite shipments of identical materials to and from local domestic reactors.

58. See 42 U.S.C. § 4214ee. More precisely, TRU waste includes alpha emitting wastes containing more than 100 nCi/gram of TRU isotopes, i.e., isotopes with an atomic number larger than uranium, or more than 92 on the periodic table of elements. An alpha is a subatomic particle composed of two protons and two neutrons, indistinguishable from a helium atom nucleus.

59. The plutonium formed in a commercial nuclear power plant fuel is imbedded in the spent fuel with other fission products and the original uranium, and is regarded as "high-level waste." Some TRU waste is generated in non-weapons research projects, but they are typically small quantities and often involve rare, nonplutonium isotopes.


61. 734 F. Supp. 946, 20 ELR 21044 (D. Colo. 1990). Many of the plutonium-contaminated waste drums had been stored for more than 10 years, and were not available for immediate reuse, as required by RCRA's recycling amendment. DOE was storing wastes subject to the RCRA Land Disposal Restrictions (LDR). These LDR wastes cannot generally be stored for more than one year. 40 C.F.R. § 268.50. RCRA also prohibits "speculative accumulation" of wastes under the guise of future recycling. Id. § 261.2(c)(4).

62. Market pressure to reduce costs, forced the use of new technologies and operating procedures to significantly reduce low-level waste generation volume.

63. The popular view is that a nuclear explosion in a major city is less likely after the end of the Cold War. Many analysts, however, believe that the proliferation of fissile materials among parties less predictable than the former Soviet Union makes such a threat more likely. See Graham Allison, Fighting Terrorism: Could Worse Be Yet to Come?, THE ECONOMIST, Nov. 3, 2001, at 19.

64. The fall of the Berlin Wall on November 9, 1989, is one marker for the end of the Cold War. Another marker is the dissolution of the Soviet Union on December 25, 1991. The end of the Cold War was identified as September 27, 1991, for purposes of determining worker and facility eligibility under the National Defense Authorization Act for Fiscal Year 1993. See Pub. L. No. 102-484, subtit. E, § 3161, 106 Stat. 2315 (1992) (Department of Energy Defense Nuclear Facilities; Work Force Restructuring Plan). The September 27, 1991, date is derived from President George H.W. Bush's announcement to cease 24/7 nuclear armed bomber flights and to eliminate nuclear weapons from surface ships, which was followed on October 5, 1991, by Soviet Premier Mikhail Gorbachev reducing the number of Soviet nuclear missiles on alert. Hence, the Cold War ended less than a year before the Rio Summit. See Robert S. Norris, Nuclear Notebook, BULL. OF ATOMIC SCIENTISTS, Jan. 1992, available at http://www.thebulletin.org/issues/1992/jf92/jf92.notebook.html (last visited June 3, 2002). See also George H.W. Bush, Address to the Nation on Reducing United States and Soviet Nuclear Weapons, Sept. 27, 1991, at http://bushlibrary.tamu.edu/papers/1991/91092704.html (last visited June 3, 2002).

65. One notable exception was then-Sen. Al Gore (D-Tenn.) who had already recognized some of opportunities from the end of the Cold War and joined with Senate Armed Services Committee chair, Sam Nunn (D-Ga.), in early 1992 to launch the Strategic Environmental Research Defense Initiative (SERDP), which sought to make available enormous defense assets, e.g., oceanographic data from submarines and P-2 Orion surveillance aircraft, that could be used in environmental research.

66. Although arms control agreements have reduced the active stockpiles and thousands of nuclear warheads have been dismantled, a large inactive nuclear stockpile that is not covered in the agreements remains, with the total U.S. stockpile at approximately 10,000 warheads. See Robert S. Norris, Nuclear Notebook: U.S. Nuclear Forces, BULL. OF ATOMIC SCIENTISTS, Mar./Apr. 2001, at 77.

67. The hair trigger readiness of thousands of remaining operational nuclear missiles, however, remains a significant risk, particularly from technical malfunction or miscalculation by U.S. or Russian personnel.

68. In addition to the five declared nuclear powers, Israel, India, and South Africa were widely regarded as de facto nuclear powers. Israel has long been widely suspected of possessing nuclear weapons, but has never publicly confirmed it, despite a detailed book on the subject by Seymour Hersh, see SEYMOUR HERSH, THE SAMPSON OPTION (1991), and other details disclosed by former Israeli technician Mordechai Vanunu in 1986. Also, India had detonated a nuclear explosion in 1974, but referred to it officially as a "peaceful nuclear explosion." After the Rio Summit, in 1993, South Africa revealed that it had produced, and later dismantled nuclear weapons.

69. John F. Burns, Indian Scientists Confirm They Detonated a Hydrogen Bomb, N.Y. TIMES, May 18, 1998, at Al; John F. Burns, Pakistan, Answering India, Carries Out Nuclear Tests; Clinton's Appeal Rejected, N.Y. TIMES, May 29, 1998, at Al; M.V. Ramana & A.H. Nayyar, India, Pakistan and the Bomb, SCI. AM., Dec. 2001, at 60, available at http://www.sciam.com/2001/1201issue/1201ramana.html (last visited Apr. 25, 2002).

70. Avner Cohen, Most Favored Nation, BULL. OF ATOMIC SCIENTISTS, Jan. 1995, at 44.

71. David Albright, South Africa and the Affordable Bomb, BULL. OF ATOMIC SCIENTISTS, July/Aug. 1994, at 37-47.

72. Judith Miller & James Risen, Tracking Baghdad's Arsenal: Inside the Arsenal: A Special Report: Defector Describes Iraq's Atom Bomb Push, N.Y. TIMES, Aug. 15, 1998, at A4; see also Letter from Hans Blix, Director-General of the IAEA, to Secretary General of the United Nations (Oct. 6, 1997) (addressing Fourth Consolidated Report of the Director-General of the IAEA to the Secretary General, Under Paragraph 16 of U.N. Resolution 1051), available at http://www.iaea.org/worldatom/Programmes/ActionTeam/reports/s_1997_779.pdf (last visited Apr. 25, 2002).

73. Victor Gilinsky, Nuclear Blackmail: The 1994 U.S.-Democratic People's Republic of Korea Agreed Framework on North Korea's Nuclear Program, in HOOVER INSTITUTION ESSAYS IN PUBLIC POLICY (1999); Remarks of Ambassador Robert Gallucci, at Carnegie International Non-Proliferation Conference, on Proliferation Prospects (Mar. 16, 2000); and Joseph Cirincione, Non-Proliferation Project at the Carnegie Endowment for International Peace, The Asian Nuclear Chain Reaction, FOREIGN POL'Y, Spring 2000; Carnegie Endowment for International Peace (CEIP), Proliferation Brief, Vol. 3, No. 3 (Mar. 2, 2000).

74. Tim Weiner, A Nation Challenged: Al Qaeda; Bin Laden Has Nuclear Arms, N.Y. TIMES, Nov. 10, 2001, at B4.

75. Treaty on the Non-Proliferation of Nuclear Weapons, Mar. 5, 1970, art. IV, cl. 2, 21 U.S.T. at 489, T.I.A.S. No. 6839 at 6, 729 U.N.T.S. The treaty was approved on May 11, 1995, to remain in force indefinitely and without condition.

76. See U.S. State Department, Treaty on the Non-Proliferation of Nuclear Weapons, at http://www.state.gov/www/global/arms/treaties/nptl.html (last visited Apr. 25, 2002); and United Nations, Treaty on the Non-Proliferation of Nuclear Weapons, at http://www.un.org/Depts/dda/WMD/treaty/index.html (last visited Apr. 25, 2002).

77. Jared Dreicer, How Much Plutonium Could Have Been Produced in the DPRK IRT Reactor?, 8 SCI. & GLOBAL SECURITY 273 (2000); Paul Leventhal, Plugging the Leaks in Nuclear Export Controls: Why Bother?, ORBIS, Spring 1992, at 177; and David Albright & K. O'Neill, The Iraqi Maze: Searching for a Way Out, 8 NONPROLIFERATION REV. 1 (2001).

78. See Nuclear Energy Institute, High-Level "Nuclear Waste" Is Really Used Nuclear Fuel, at http://www.nei.org/doc.asp?catnum=2&catid=62 (last visited Apr. 25, 2002).

79. This method of obtaining fresh fuel has never been found to be economical, compared to the cost of newly mined and processed uranium. In addition to the cost of recovering the plutonium and uranium, the process produces a large amount of liquid high-level waste, creates substantially more hazardous working conditions for operations technicians, and contributes to global nuclear proliferation problems by fostering a market in reprocessed plutonium and uranium. The recent process of blending down high enriched (weapons-grade) uranium to low enriched (reactor-grade) uranium has only exacerbated the economic problems of using reprocessing as a source of nuclear reactor fuel. See William C. Sailor, The Case Against Reprocessing, in F. FOR APPLIED RES. & PUB. POL'Y (1999); Frank N. von Hippel, Plutonium and Reprocessing of Spent Nuclear Fuel, 293 SCIENCE 2397-2398 (2001).

80. See, e.g., the long-running debates about the regulatory definition of "solid waste" under RCRA. 42 U.S.C. § 6903, ELR STAT. RCRA § 1004, and 40 C.F.R. § 261. See Aaron Goldberg, The Federal Hazardous Waste Program; A House of Cards, Env't Rep. (BNA), June 16, 1995.

81. In 1988, the Secretary of Energy said: "We're awash in plutonium. We have more plutonium than we need." John Herrington, Secretary of Energy, Testimony Before the House Appropriations Subcomm. on Interior and Related Agencies (Feb. 23, 1988).

82. 42 U.S.C. §§ 10101-10270.

83. Sen. Pete V. Domenici, A New Nuclear Paradigm, Inaugural Symposium, Belfer Center for Science and International Affairs, Harvard University (Oct. 31, 1997); Lira Behrens, Domenci May Rethink Spent Fuel Disposal, INSIDE ENERGY, Nov. 10, 1997, at 1.


85. See 42 U.S.C. § 2014(aa).


87. A full examination of the complex and evolving issue is beyond this Article. For background, see ARJUN MAKHIJANI & ANNIE MAKHIJANI, FISSILE MATERIALS IN A GLASS, DARKLY (1995), available at http://www.ieer.org/pubs/fissmats.html (last visited Apr. 25, 2002); HOWARD HU ET AL., PLUTONIUM (1992); Matthew Bunn & John P. Holdren, Managing Military Uranium and Plutonium in the United States and the Former Soviet Union, 22 ANN. REV. OF ENERGY & THE ENV'T 403-486 (1997).

88. Known as mixed oxide (MO[x]) fuel this blend of plutonium and uranium can be used in conventional nuclear power reactors up to approximately one-third of the fuel charge.

89. "Fission products" are created by splitting uranium and plutonium atoms in a nuclear reactors. Examples of fission products include cesium, strontium, technecium, and americium.

90. NATIONAL ACADEMY OF SCIENCES, COMMITTEE ON INTERNATIONAL SECURITY AND ARMS CONTROL, MANAGEMENT AND DISPOSITION OF EXCESS WEAPONS PLUTONIUM (1994): "We recommend . . . plutonium disposition options that result in a form from which the plutonium would be as difficult to recover for weapons as the lager and growing quantity of plutonium in commercial spent fuel. . . ." Id.

91. Matthew L. Wald, U.S. Settles on Plan to Recycle Plutonium, N.Y. TIMES, Jan. 23, 2002, at A15.

92. Much of this unaccounted for plutonium is non-fissile Pu-238 rather than the Pu-239 isotope used for nuclear warheads. See U.S. DOE, OFFICE OF INSPECTOR GENERAL, ACCOUNTING FOR SEALED SOURCES OF NUCLEAR MATERIALS PROVIDED TO FOREIGN COUNTRIES (2002) (DOE/IG-0456); Walter Pincus, Report Cites Unaccounted Plutonium: Amounts Sufficient to Create "Dirty Bomb." Official Says, WASH. POST, Mar. 27, 2002, at A9. Also, DOE disclosed in 1997 that 80 grams of weapons-grade plutonium was inadvertently left behind during the chaotic withdrawal of forces from Vietnam in 1975. See U.S. DOE, STATEMENT OF SECRETARY HAZEL O'LEARY, OPENNESS: THE WAY TO DO BUSINESS, PRESS CONFERENCE FACT SHEETS (1997).

93. See U.S. DOE, PLUTONIUM, THE FIRST FIFTY YEARS; UNITED STATES PLUTONIUM PRODUCTION, ACQUISITION, AND UTILIZATION FROM 1944 THROUGH 1994 (1996) (DOE/DP-0137). Appendix B on plutonium waste details how plutonium that was disposed of as waste was not accounted for with the same rigor accorded to plutonium still considered part of the production system using the Nuclear Materials Management and Safeguards System. Id. at app. B.

94. See U.S. DOE, TAKING STOCK, supra note 86.

95. Depleted uranium is defined as uranium with less than 0.71% U-235. Natural uranium is primarily composed of non-fissile U-238, with 0.71% U-235, which is extracted through the enrichment process to increased the relative proportion of U-238 to 3 to 4% for nuclear power plants fuel and more than 20%, and often more than 90% (exact enrichment levels are classified), for weapons grade and naval nuclear propulsion systems, i.e., submarine and aircraft carriers.

96. Because of its extreme high density (and therefore projectile force), depleted uranium is used in tank penetrator bullets to pierce armor plating, and defensively for plating on U.S. tanks such as the MIA-1. Limited amounts of depleted uranium were used for bullet and armor production at the Special Manufacturer Capability (SMC) facility at the Idaho National Engineering Laboratory. This enterprise was classified as "Black"—meaning that the government did not acknowledge the existence, much less provide any information about, the SMC program—until the 1990s.

97. The safety of depleted uranium (dU) bullets have been the topic of debate by critics who allege health threats, see Akira Tashiro, Discounted Casualties: The Human Cost of Depleted Uranium, THE CHUGOKU SHIMBUN, Apr. 24, 2001; Bill Mesler, The Pentagon's Radioactive Bullet: An Investigative Report, THE NATION, Oct. 21, 1996; and Bill Mesler, Pentagon Poison: The Great Radioactive Ammo Cover-Up, THE NATION, May 26, 1997, or others who assert depleted uranium poses no significant risks, see Steve Fetter & Frank von Hippel, After the Dust Settles, BULL. OF ATOMIC SCIENTISTS, Nov./Dec. 1999, at 42. Unresolved is the management issue of whether discharging the depleted uranium from an aircraft during a training exercise, e.g., in the Ozark Lakes of Missouri or the Nellis range in Nevada, is radioactive waste disposal.

98. The Oil, Chemical and Atomic Workers Union, later consolidated with the Paper and Allied Chemical Employees, faced the prospect of massive job losses after the privatized DOE enrichment operation—the U.S. Enrichment Corporation (USEC)—announced its plan to shut down the Portsmouth plant in Ohio, and leave only the Paducah plant in Kentucky operating.

99. The fiscal year (FY) 2003 budget request included funding for only one facility, although strong congressional support may direct that the originally planned two facilities (Ohio and Kentucky) be built.

100. The depleted uranium had long been stored as uranium hexafluoride outdoors with no cover in Kentucky, Ohio, and Tennessee outside in tens of thousands of 10-and 14-ton steel cylinders, more than 17,000 were found by DOE to be corroded. U.S. DOE, TAKING STOCK, supra note 86, at 150.

101. Despite decades of government investment in the technology, the high costs of constructing and operating an AVLIS facility, combined with the unproven experimental nature of the project, led to the cancellation of the program soon after the private entity, USEC, took control of the enterprise.

102. The essential technology for both AVLIS and SIS is the vaporization of metallic plutonium or uranium mixtures, and then selectively ionizing (giving it a positive or negative charge depending on the isotope) various plutonium or uranium isotopes, e.g., Pu-239 or U-235, from the hot vapor with a tuned laser, thereby allowing the desired isotope to be collected magnetically.

103. The potential high purification levels achievable with laser isotope separation could be used to produce relatively pure, weapons-usable U-235 or Pu-239, even from stocks of otherwise unusable impure uranium and plutonium, that might be regarded as "waste."

104. Reprocessing facilities were also operated in Idaho at the Idaho Chemical Processing Plant and the Idaho Nuclear Technology Center at the Idaho National Engineering Laboratory; in Washington at the Hanford Reservation PUREX and T-Plants; and in New York at West Valley, south of Buffalo. Commercial reprocessing plants built in Morris, Illinois, and Barnwell, South Carolina, never operated.

105. The need to stabilize the spent fuel and surplus plutonium was clearly legitimate. See U.S. DOE, PLUTONIUM WORKING GROUP REPORT ON THE ENVIRONMENTAL SAFETY AND HEALTH VULNERABILITIES ASSOCIATED WITH THE DEPARTMENT'S PLUTONIUM STORAGE (1994) (DOE/EH-0415). In some cases, however the need and urgency for stabilization of some materials was overblown, and resulted in extended reprocessing canyon operations.

106. Editorial, Push for Reprocessing, AUGUSTA CHRON., May 16, 1996, at 4A; Editorial, Reprocessing Is the Answer to Waste and Fuel Handling at SRS, AIKEN STANDARD, Mar. 21, 1996; and Greg Renkes, U.S. High-Level Waste Management Policy and the Reprocessing Option (Speech to the American Nuclear Society in Washington, D.C.) (Nov. 1996).


108. Bette Hileman, Energy Department has Made Progress Cleaning Up Nuclear Weapons Plants, CHEM. & ENGINEERING NEWS, July 22, 1986, at 14.

109. See Letter from John Conway, Chair of the Defense Nuclear Facilities Safety Board, to Energy Secretary Hazel O'Leary (Nov. 15, 1995); and Letter from Sen. Strom Thurmond, Chair of the Senate Armed Services Committee, to Energy Secretary Hazel O'Leary (Nov. 16, 1995) (on file with author). These letters were coordinated by the two offices, and provided no new technical information, but strongly support retaining jobs for southern South Carolina government nuclear contractor workers. A detailed technical review by DOE found these wastes posed no risk warranting reprocessing. There was a list of materials "at risk" and some "not at risk." The M-16/22's were reprocessed even though they were identified as not at risk, essentially due to pressure from Sen. Strom Thurmond. (R-S.C.) to provide additional federal jobs in South Carolina.


111. Prior to May 2001, the U.S. policy was to consider reprocessing only for government -owned spent fuel, and all commercial high-level waste was to be disposed of it in a geologic repository directly. A Bush Administration report, see NATIONAL ENERGY POLICY DEVELOPMENT GROUP, NATIONAL ENERGY POLICY: REPORT OF THE NATIONAL ENERGY POLICY DEVELOPMENT GROUP 5-16 (2001), proposed to reopen the possibility of reprocessing spent nuclear fuel and investing in reprocessing technologies, although the FY 2003 budget did not reflect this rhetoric.

112. Memorandum from James Watkins, Secretary, U.S. DOE, to Staff (Apr. 1992).

113. The scope of this environmental impact statement (EIS) was expanded to cover spent nuclear fuel only after the legal intervention by Gov. Cecil Andrus (D-Idaho), resulting in an injunction on August 9, 1993, preventing additional spent nuclear fuel shipments to Idaho.

114. U.S. DOE, PROGRAMMATIC SPENT NUCLEAR FUEL MANAGEMENT AND IDAHO NATIONAL ENGINEERING LABORATORY ENVIRONMENTAL RESTORATION AND WASTE MANAGEMENT PROGRAMS FINAL ENVIRONMENTAL IMPACT STATEMENT (1995) (DOE/EIS-0203-F) (known as Programmatic Spent Nuclear Fuel and INEL EIS). See also the records of decision for that EIS, 60 Fed. Reg. 28680 (June 1, 1995) and Programmatic Spent Nuclear Fuel Management and Idaho National Engineering Laboratory Environmental Restoration and Waste Management Programs, 61 Fed. Reg. 9441 (Mar. 8, 1996).

115. On February 23, 1996, EPA published a Notice of Availability of the final EIS. U.S. Final Environmental Impact Statement on a Proposed Nuclear Weapons Nonproliferation Policy Concerning Foreign Research Reactor Spent Nuclear Fuel, 61 Fed. Reg. 6983 (Feb. 23, 1996) (DOE/EIS-0218F).

116. DOE constructed a vacuum drying facility at Hanford to prepare spent fuel stored in water pools at the K Basins in the 100 Area for storage in a retrofitted facility in the 200 Area.

117. During the Cold War, the United States had shipped uranium to more than 40 countries to assist their nuclear development and to encourage them to refrain from developing a "home-grown" weapons-grade uranium production capability. In this "Atoms for Peace" program, the United States agreed to accept the spent fuel. Not only did this relieve the participating countries of the burden of storing spent fuel, but it also helped control the spread of nuclear weapons materials. Unlike nuclear power plant fuel, this fuel contained high enriched, or weapons-grade uranium, which could be extracted through reprocessing.

118. The program stalled in part because of legal challenges by U.S. NGOs, which objected to what was viewed as a duplicitous policy of returning nuclear material to the United States in an ostensible nonproliferation effort but then reprocessing the spent nuclear fuel to extract weapons-grade uranium for use in the U.S. nuclear weapons program. This problem ended in 1992 with the U.S. decision to phase out reprocessing.

119. Hundreds of people attended hearings in Portland, Oregon, and Concord, California, to object to the shipments through their local ports. The California hearings were also attended many University of California employees seeking contract work with DOE, and consequently declined to voice support for the shipments, despite their support and acceptance because their first priority was their marketing interests rather than community education and nonproliferation. There were also many older residents who were surprised to learn that virtually all of the uranium proposed for return through the port had secretly been originally shipped overseas through California ports during the Cold War, but objected when offered the opportunity to comment.

120. In Russia, nuclear waste also accumulated secretly in naval ship-yards, e.g., Murmansk, from ships and submarines. U.S. Navy ship-yards were largely kept free of nuclear waste by promptly shipping it to a DOE facility in Idaho. See, e.g., DON J. BRADLEY, PACIFIC NORTHWEST LABORATORIES, BEHIND THE NUCLEAR WASTE CURTAIN: RADIOACTIVE WASTE MANAGEMENT IN THE FORMER SOVIET UNION (1997).

121. THOMAS B. COCHRAN ET AL., NUCLEAR WEAPONS DATABOOK (1987); ROBERT DEL TREDICI, AT WORK IN THE FIELDS OF THE BOMB (1987); Howard Moreland, The H-Bomb Secret: The Know-How Is to Ask Why, THE PROGRESSIVE, Nov. 1979, at 3, available at http://www.progressive.org/pdf/1179.pdf (last visited June 3, 2002).

122. William Lanouette, Tritium and the Times: How the Nuclear Weapons-Production Scandal Became a National Story (JFK School of Government, Harvard University, Research Paper R-1 1990).

123. The information that was most widely reported was the use of unwitting human subjects for a series of radiation experiments that began in the 1940s, including the use of retarded children and minority and indigent subjects in exchange for money. Although some of this information had been reported years earlier by Rep. Edward Markey (D-Mass.), it was made more explicit by a series of reports in the Albuquerque Journal, which earned the reporter a Pulitzer Prize and was later published in a detailed book on the issue. See EILEEN WELSOME, PLUTONIUM FILES: AMERICA'S SECRET MEDICAL EXPERIMENTS IN THE COLD WAR (1999). The larger impact of this revelation was that President William J. Clinton established an interagency review and a Federal Advisory Committee on Human Radiation Experiments, which undertook a wide-ranging investigation of this issue.


125. Some observers have suggested that DOE shifted spending to its environmental cleanup budget to help fund facility maintenance when environmental spending became more politically popular than nuclear weapons production. Later analyses, see note 127 infra, confirmed that much of the "cleanup" budget was spent on maintenance rather than cleanup.


127. U.S. DOE, ESTIMATING THE COLD WAR MORTGAGE, supra note 124. This estimate was initially questioned, but was subsequently replicated, see U.S. DOE, THE 1996 BASELINE ENVIRONMENTAL MANAGEMENT REPORT, supra note 124, and independently validated, see U.S. DOE, ACCOUNTABILITY REPORT, FISCAL YEAR 1999 (2000) (DOE/CR-0069); Letter from Greg Friedman, Inspector General, DOE, Accompanying DOE/IG-FS-01-01 on DOE's Consolidated Financial Statements Report (Feb. 16, 2001) (reprinted in DOE/CR-0071.)

128. See studies cited in note 124, supra.

129. The estimated cost for decommissioning and decontamination of commercial nuclear facilities has been estimated at approximately $ 100 billion. Gene R. Heinze, The Cost of Decommissioning U.S. Reactors: Estimates and Experience, 12 ENERGY J. 87 (1991) (Special Nuclear Decommissioning Issue).

130. FERNALD CITIZENS' TASK FORCE, RECOMMENDATIONS ON REMEDIATION LEVELS, WASTE DISPOSITION, PRIORITIES AND FUTURE USE (1995). This task force was spearheaded by a long-time activist, Lisa Crawford, who had formed the Fernald Residents for Environmental Safety and Health. See Rachel Melcher, Fernald Activist Hangs Tough, CINCINNATI ENQUIRER, Nov. 18, 1999, at B1, available at http://enquirer.com/editions/1999/11/18/loc_fernald_activist.html (last visited June 3, 2002).

131. This collaboration between states and DOE facilitated by the National Governor's Association (NGA) was significant because it avoided the confrontation some feared would result from the enactment of the Federal Facilities Compliance Act in 1992. See Federal Facilities Compliance Act of 1992, 102-386, 106 Stat. 1505 (amending scattered sections in 42 U.S.C. §§ 6901-6961, ELR STAT. RCRA §§ 1001-6001 (1994)).


133. James R. Carroll & James Malone, Cold War Poison: The Paducah Legacy, THE COURIER-JOURNAL, June 25, 2000, at Al; and Joby Warrick, Uranium Plant Risks Were Concealed, WASH. POST, Sept. 21, 1999, at Al.

134. Energy Employees Occupational Illness and Compensation Program Act of 2000, Pub. L. No. 106-398, 114 Stat. 1654.

135. DOE subsequently undertook an extensive review of the use of recycled uranium, see U.S. DOE, A PRELIMINARY REVIEW OF THE FLOW AND CHARACTERISTICS OF RECYCLED URANIUM THROUGH THE DOE COMPLEX: 1952-1999 (2001) (DOE-F001-F001).

136. U.S. Energy Information Administration, Unique Reactors, at http://eia.doe.gov/cneaf/nuclear/page/nuc_reactors/superla.html (last visited Apr. 25, 2002).

137. One prominent Earth Summit participant, then-Sen. Al Gore (D-Tenn.), had long been involved in addressing the environmental problems of the U.S. nuclear weapons complex as early as the 1980s, especially at the Oak Ridge Reservation in his home state of Tennessee. As a Representative and Chairman of the House Oversight and Investigations Subcommittee, Energy and Commerce Committee, Representative Gore organized the first set of hearings devoted to these issues as early as 1983 dealing with dumping of mercury into Tennessee waterways. See The Impact of the Mercury Losses in Oak Ridge, Hearings Before the U.S. House of Representatives Science and Technology Committee, Subcommittees on Oversight and Investigations and Subcommittee on Energy Research and Development (July 11, 1983).

138. Agenda 21, supra note 23, P22.

139. Id.

140. From the temporary ban in the London Dumping Convention.

141. Rio Declaration, supra note 11, princ. 3.

142. Id. princ. 10.

143. Id. princ. 13.

144. Id. princ. 15.

145. Id. princ. 16.

146. The application of these principles has not generally occurred as a result of an explicit and conscious effort to abide by the results of the Rio Summit. More likely the Rio principles already reflected ongoing U.S. policies, and the Agenda 21 activities set a low bar for expectations, especially for an economically and technologically developed country like the United States.

147. See low-level waste discussion infra.

148. Other names used to refer to the same technology have included "electrometallurgical refining," "electrometallurgical treatment," or simply the "back end" of the integral fast reactor. DOE and the Argonne National Laboratory West staff have sought to use these semantic changes to mask the same technology against shifting public and congressional concerns.

149. A "Fast Breeder Reactor" is sometimes promoted as part of a strategy for managing spent nuclear fuel and reducing the reliance on newly mined uranium. It uses "fast" neutrons to "breed" new plutonium, so that there is more fissile plutonium "fuel" produced after operation than the amount of fuel consumed. Reprocessing is then use to extract this newly created plutonium. See THOMAS B. COCHRAN, RESOURCES FOR THE FUTURE, THE LIQUID METAL FAST BREEDER REACTOR: AN ENVIRONMENTAL AND ECONOMIC CRITIQUE (1974).

150. International safeguards could theoretically deter the use of reprocessing for obtaining materials for use in nuclear weapons. In fact, these safeguards have failed in the past. Moreover, the U.S. pyroprocessing technology was not designed to facilitate safeguards inspections.

151. Remarks of Ambassador Robert Gallucci, Proliferation Prospects, Carnegie International Non-Proliferation Conference (Mar. 16, 2000); Cirincione, supra note 73; and CEIP, Proliferation Brief, supra note 73.

152. Memorandum of Understanding, signed by Thomas P. Grumbly, U.S. DOE and Arvo Niitenberg of the Estonian Ministry of Economy (Mar 13, 1995).

153. Treaty on the Non-Proliferation of Nuclear Weapons, Mar. 5, 1970, art. IV, cl. 2, 21 U.S.T. at 489, T.I.A.S. No. 6839 at 6, 729 U.N.T.S. at 173.

154. Seth Grae, The Nuclear Non-Proliferation Treaty's Obligation to Transfer Peaceful Nuclear Energy Technology: One Proposal of a Technology, 1 FORDHAM INT'L L.J. 5 (1996).

155. Adam Bernstein, Alvin Radkowsky, 86, Dies; Pioneer of Nuclear Energy, WASH. POST, Feb. 22, 2002, at B7.

156. See Alex Galperin et al., Thorium Fuel for Light Water Reactors-Reducing Proliferation Potential of Nuclear Power Fuel Cycle, 6 SCI. & GLOBAL SECURITY 267-292 (1996); Robert H. Williams & Harold A. Feiveson, How to Expand Nuclear Power Without Proliferation, BULL. OF ATOMIC SCIENTISTS, Apr. 1990, available at http://www.thebulletin.org/issues/1990/a90/a90williams.html; John S. Friedman, More Power to Thorium?, BULL. OF ATOMIC SCIENTISTS, Sept./Oct. 1997, available at http://www.thebulletin.org/issues/1997/so97/so97friedman.html; JOHN P. HOLDREN ET AL., PRESIDENT'S COMMITTEE OF ADVISORS ON SCIENCE AND TECHNOLOGY, PANEL OF ENERGY RESEARCH AND DEVELOPMENT, FEDERAL ENERGY RESEARCH AND DEVELOPMENT FOR THE CHALLENGES OF THE 21ST CENTURY (1997) (report for Office of Science and Technology Policy, Executive Office of the President of the United States).

157. Arjun Makhijani, Nuclear Power: No Solution to Global Climate Change, 6 SCI. FOR DEMOCRATIC ACTION 1 (1998) and Edwin S. Lyman, Can the Proliferation Risks of Nuclear Power Be Made Acceptable? (Nuclear Control Institute, 20th Anniversary Conference, Apr. 9, 2001).

158. The time in which one-half the atoms of a particular radionuclide disintegrate into another nuclear form. For example, Pu-238 has a half-life of 88 years; therefore after 88 years one-half the initial quantity of Pu-238 will have decayed into "daughter products," i.e., Pu-238 decays to U-234, which has a half-life of 234; U-234 decays to thorium (Th)-230, which has a half-life of 75,400 years; Th-230 decays to radium (Ra)-226, which has a half-life of 1,600 years; Ra-226 decays to lead which is stable.

159. For this reason, perhaps another principle from the Rio Declaration—Principle 8, regarding "unsustainable patterns of production and consumption and promote appropriate demographic policies"—could be applied. See Rio Declaration, supra note 11, princ. 8.

160. 40 C.F.R. §§ 191 and 194.

161. Kai Erikson, Out of Sight, Out of Our Minds: 12,001 A.D.: Are You Listening?, N.Y. TIMES (Magazine), Mar. 6 1994, KAI ERICKSON, A NEW SPECIES OF TROUBLE (1994); NATIONAL ACADEMY OF PUBLIC ADMINISTRATION, DECIDING FOR THE FUTURE: BALANCING RISKS, COSTS, AND BENEFITS FAIRLY ACROSS GENERATIONS (1997); U.S. DOE, SANDIA NATIONAL LABORATORIES, EXPERT JUDGEMENT ON MARKERS TO DETER INADVERTENT HUMAN INTRUSION INTO THE WASTE ISOLATION PILOT PLANT (1994) (Sandia National Laboratories Report No. SAND92-1382/UC-721, 1994); K.M. TRAUTH ET AL., DOE PERMIT APPLICATION FOR WIPP APP EPIC (1996) (APP EPIC entitled Effectiveness of Passive Institutional Controls in Reducing Inadvertent Human Intrusion into the Waste Isolation Pilot Plant for Use in Performance Assessments).



164. John Applegate & Stephen Dycus, Institutional Controls or Emperor's Clothes? Long-Term Stewardship of the Nuclear Weapons Complex, 28 ELR 10631-52 (Nov. 1998); KATHERINE PROBST, RESOURCES FOR THE FUTURE, LINKING LAND USE AND SUPERFUND CLEANUPS: UNCHARTED TERRITORY (1999).


166. ICF KAISER, MANAGING DATA FOR LONG-TERM STEWARDSHIP (1998). See http://lts.apps.em.doe.gov/center/reports/docl.html

167. See Section III.B., supra, entitled Commercial Nuclear Waste Eclipsed by Nuclear Weapons Facilities' Waste.

168. Jennifer Weeks, Will O'Leary Legacy Last?, 54 BULL. OF ATOMIC SCIENTISTS, Mar. 1998, at 11-14, available at http://ksgnotesl.harvard.edu/BCSIA/Library.nsf/pubs/Ollegacy (last visited Apr. 25, 2002); Brian Costner, Access Denied, BULL. OF ATOMIC SCIENTISTS, Mar./Apr., 2002, at 58-62.


169. A 1998 settlement agreement between the NRDC and DOE required that a database of radioactive waste information be made available. See Natural Resources Defense Council v. Richardson et al., Civ. No. 97-936 (SS) (D.D.C. 1998). DOE has failed to provide the required data to make the database operational and since 2001, DOE has failed to update the data as required by the settlement agreement.

170. Costner, supra note 168.

171. Memorandum from Andrew H. Card Jr., Assistant to the President and Chief of Staff, to the Heads of Executive Departments and Agencies (Mar. 19, 2002).

172. Rio Declaration, supra note 11, princ. 13

173. Worker vulnerability is a function of proximity, which is one of the three fundamental principles of health physics protection from ionizing radiation: (1) distance from a source, (2) shielding, and (3) duration.

174. The blatant disregard for worker health and safety was probably more severe and lasted longer at DOE facilities than private nuclear facilities perhaps because of the continued inadequacy of independent external regulation at DOE facilities. Also, DOE facilities have often hid behind the cloak of "national security" secrecy as a pretense for obscuring issues and withholding information. See generally James D. Werner, Secrecy and Its Effect on Environmental Problems in the Military: An Engineer's Perspective, 2 N.Y.U. ENVTL. L.J.351 (1993).

175. According to William A. Vaughn, DOE Assistant Secretary for Environmental Protection, Safety, and Emergency Preparedness from 1981-1984: "There was a military culture throughout the agency, a bunker mentality. People saw their role as meeting the requirements for defense. Other things, of necessity, came second, including environmental, safety and health programs. Every penny that went to safety programs was a penny taken from manufacturing nuclear warheads." N.Y. TIMES, Nov. 1988.

176. A 1947 letter from the AEC Director of Oak Ridge Operations to the AEC General Manager states:

Papers referring to levels of soil and water contamination surrounding AEC installations, idle speculation on future genetic effects of radiation and papers dealing with potential process hazards to employees are definitely prejudicial to the best interests of the government. Every such release is reflected in an increase in insurance claims, increased difficulty in labor relations and adverse public sentiment.

J.C. Franklin, Director, Oak Ridge Operations, to Carroll L. Wilson, AEC General Manager 2-3 (Sept. 26, 1947) ("Medical Policy") (ACHRE No. DOE-113094-B-3); quoted in FINAL REPORT, ADVISORY COMMITTEE ON HUMAN RADIATION EXPERIMENTS 627 (1995), available at http://www.eh.doe.gov/ohre/roadmap/achre/chap13_3.html (last visited June 3, 2002).

177. Hearings Before the Subcomm. on Immigration and Claims of the House Judiciary Comm. (Sept. 21, 2000) (testimony of Richard D. Miller, citing an AEC memorandum, AEC, NEPTUNIUM-237 CONTAMINATION PROBLEM, PADUCAH, KENTUCKY (Feb. 4, 1960)).


179. Congress eliminated the Office of Technology Assessment (OTA) in 1995, ostensibly for budget reasons, but it was widely regarded as retribution for criticism by OTA of President Ronald Reagan's and President George H.W. Bush's policies, including Star Wars and the radioactive waste problems in the nations nuclear weapons facilities. Archive OTA publications remain available at, OTA Publications, at http://www.wws.princeton.edu/-ota/ns20/year_f.html (last visited Apr. 26, 2002), and remain a unique and useful source of technical policy information.

180. See U.S. DOE, Price-Anderson Enforcement Program, at http://www.eh.doe.gov/enforce/ (last visited June 3, 2002).

181. See U.S. DOE, ISM Resources, at http://www.eh.doe.gov/ism/ (last visited June 3, 2002).

182. Now part of the Paper, Allied Industrial, Chemical, and Energy (PACE) Workers International Union.

183. Arjun Makhijani, Fernald Workers Radiation Exposure, 5 SCI. FOR DEMOCRATIC ACTION 3 (2002), available at http://www.ieer.org/sdafiles/vol_5/5-3/fernwork.html (last visited Apr. 26, 2002).

184. Sam Roe, Deadly Alliance: How Government and Industry Chose Weapons Over Workers, TOLEDO BLADE (Special Report), available at http://www.toledoblade.com/apps/pbcs.dll/artikkel?Kategori=SRDEADLY01&Dato=19990328&Lopenr=9999099&Ref=AR Also (last visited June 3, 2002). See also earlier reports on extent of overexposure to beryllium in AEC reports produced by the Health and Safety Laboratory (HASL) in the 1950s and 1960s: Occupational Exposure to Airborne Contaminants, Brush Beryllium Company, Elmore, Ohio, Sept. 26, 1962, AEC-HASL Technical Memorandum 62-24, Occupational Exposure to Airborne Beryllium, Beryllium Corporation, Reading, Pa., Sept. 7, 1961, HASL 61-8B, Occupational Exposure to Airborne Beryllium, Beryllium Corporation, Hazelton, Pa., Mar. 20, 1962, HASL 62-8.

185. State of Pennsylvania Worker Compensation Code; see also Exec. Order No. 13179, 65 Fed. Reg. 77487 (Dec. 1, 2000) (providing Compensation to America's Nuclear Weapons Workers).

186. Peter Eisler, Poisoned Worker, Poisoned Places, USA TODAY, Sept. 6, 2000, at 15, available at http://www.usatoday.com/news/poison/012.htm (last visited Apr. 26, 2002).

187. Michael Flynn, A Debt Long Overdue, BULL. OF ATOMIC SCIENTISTS, July/Aug. 2001, at 38-48, available at http://www.thebulletin.org/issues/2001/ja01/ja01flynn.html (last visited Apr. 16, 2002); Arjun Makhijani, The Burden of Proof, BULL. OF ATOMIC SCIENTISTS, July/Aug.2001, at 45-54, available at http://www.thebulletin.org/issues/2001/ja01/ja01makhijani.html (last visited Apr. 26, 2002); Robert Alvarez, Making It Work: Will the Legislation Do the Job, BULL. OF ATOMIC SCIENTISTS, July/Aug. 2001, at 55-57, available at http://www.thebulletin.org/issues/2001/ja01/ja01alvarez.html (last visited Apr. 26, 2002); The Sites, BULL. OF ATOMIC SCIENTISTS, July/Aug. 2001, at 58-60, available at http://www.thebulletin.org/issues/2001/ja01/ja01sites.html (last visited Apr. 26, 2002).

188. Regrettably, broad support from environmental NGOs was tepid because they sought compensation for surrounding communities as well as workers, despite the fact that there was no political support for such a far-reaching bill.

189. Energy Employees Occupational Illness and Compensation Program Act of 2000, Pub. L. No. 106-398, 114 Stat. 1654; 20 C.F.R. pts. 1 and 30; Performance of Functions Under This Chapter; Claims for Compensation Under the Energy Employees Occupational Illness Compensation Act; Final Rule, 66 Fed. Reg. 28948 (May 25, 2001).

190. Pub. L. No. 106-398, 114 Stat. 1654, tit. XXXVI, § 3626; 20 C.F.R. pts. 1 and 30; Performance of Functions Under This Chapter; Claims for Compensation Under the Energy Employees Occupational Illness Compensation Act; Final Rule, 66 Fed. Reg. 28948 (May 25, 2001).

191. See 20 C.F.R. pt. 30, sbpt. D (U.S. Department of Labor, Office of Worker Compensation Programs, Hearings and Final Decision on Claims).

192. Energy Employees Occupational Illness and Compensation Program Act of 2000, Pub. L. No. 106-398, 114 Stat. 1654, tit. XXXVI, § 3626(14).

193. Id. § 3626(b)(1).

194. Id. § 3626.

195. U.S. Department of Labor, Energy Employees Compensation Program, at http://www.dol.gov/esa/regs/compliance/owcp/eeoicp/WeeklyStats.htm (last visited June 3, 2002).

196. See, e.g., Henry I. Miller & Gregory Conko, The Perils of Precaution, POLICY REV., at http://www.policyreview.org/jun01/miller.html (last visited June 3, 2002); Indur M. Goklany, Applying the Precautionary Principle to Global Warming, Center for the Study of American Business, Washington University, St. Louis (Policy Study No. 158, Competitive Enterprise Institute, Nov. 2000).



199. J. Puskin & N. Nelson, Risks From Low Doses of Radiation,272 SCIENCE 631-32 (1996); and Sen. Pete V. Domenici, Future Perspectives on Nuclear Issues, ISSUES IN SCI. & TECH., Winter 1997-1998, at 53-59.

200. The notion of "hormesis" asserts that, below a certain dose level, radiation (or other "poisons") can be good for you. See generally B.L. Cohen, Test of the Linear No-Threshold Theory of Radiation Carcinogenesis for Inhaled Radon Decay Products, 68 HEALTH PHYSICS 157-74 (1995). R.M. Macklis & B. Beresford, Radiation Hormesis, 32 J. OF NUCLEAR MED. 350 (1991).

201. Others argue that the economic benefit from generating electric power is cumulative, and that the national security benefits are inherited by future generations. These issues are not pursued here because of the obvious questions about the economic value of continuing U.S. energy inefficiency that could obviate the need for significant amounts of nuclear power generation, e.g., air conditioning empty buildings, lighting the Las Vegas strip, or operating antiquated refrigerators. Also, the exact role of nuclear weapons production in "winning the Cold War," particularly the specific scale of nuclear weapons production and the waste management methods used, is not clear. Stephen I. Schwartz, Four Trillion Dollars and Counting, BULL. OF ATOMIC SCIENTISTS, Nov./Dec. 1995 and ATOMIC AUDIT: THE COSTS AND CONSEQUENCES OF U.S. NUCLEAR WEAPONS SINCE 1940 (Stephen I. Schwartz ed., 1998).


203. 42 U.S.C. § 2210.

204. See Nuclear Energy Institute, Fact Sheet: Nuclear Insurance, at http://www.nei.org/doc.asp?Print=true&DocID=&CatNum=3&CatID=611 (last visited Apr. 26, 2002).

205. JILL LANCELOT, TAXPAYERS FOR COMMON SENSE, PRICE-ANDERSON ACT: SPECIAL SUBSIDIES AND PROTECTIONS FOR THE NUCLEAR INDUSTRY (2001), available at http://www.progress.org/nuclear04.htm (last visited Apr. 16, 2002); Barry Brownstein, The Price-Anderson Act: Is It Consistent With a Sound Energy Policy?, POL'Y ANALYSIS, Apr. 17, 1984; and Ben Zycher, Accounting for Costs and Cost Biases (Nuclear Power), 15 REGULATION, Spring 1992.

206. NWPA § 151(b), 42 U.S.C. § 10171(b). Another section—NWPA § 151c, 42 U.S.C. § 10171(c)—imposes nondiscretionary duty on DOE to take responsibility for long-term stewardship of sites involved with hafnium or other rare earth elements, which have thus far included only the AMAX site in West Virginia.

207. For representative arguments for and against interim storage at Yucca Mountain, see Matthew L. Wald, Senate Approves Temporary Site in Nevada for Nuclear Waste, N.Y. TIMES, Apr. 16, 1997, at 16 and Brad Knickerbocker, U.S. Lawmakers Collide Over Where to Dump Nuclear Waste, CHRISTIAN SCI. MONITOR, July 17, 1996, at 1.

208. Pro-nuclear advocates sometimes argue that nuclear waste is a readily solvable technical problem and that only "politics" stands in the way. Their argument is colored by the context that unless the nuclear waste problem is "solved" then public, political, and investor uneasiness with nuclear power would continue and grow. Anti-nuclear activists have been accused of using the continuing impasse over nuclear waste as a pretense for fanning flames of public fear over nuclear power, and "solving it" would eliminate one of their most useful organizing tools. From a sustainability perspective, the fact that nuclear waste lasts virtually forever and has been generated for decades without a demonstrated disposal method violates a basic tenet of sustainability.

209. 42 U.S.C. §§ 10101-10270; 10 C.F.R. pts. 60, 72.

210. Indiana Michigan Power Co. v. Department of Energy, 88 F.3d 1272, 26 ELR 21406 (D.C. Cir. 1996).


212. Based on a recommendation by DOE, President George W. Bush on February 15, 2002, recommended to Congress that the Yucca Mountain site in Nevada be designated and developed as the permanent repository for "spent nuclear fuel and high-level nuclear waste." See 42 U.S.C. § 10134 (distinction in original) (legal authority for the president to designate the site). A seminal book on the subject argued that eliminating the political power of a host community to object a siting decision was the only way that high-level waste repository could successfully be sited. See LUTHER J. CARTER, NUCLEAR IMPERATIVES AND PUBLIC TRUST: DEALING WITH RADIOACTIVE WASTE (1987).

213. DOE has previously accepted for storage and reprocessing significant amounts of spent nuclear fuel from commercial nuclear power plants. For example, DOE took possession of the spent fuel and debris in the 1980s from the 1979 Three Mile Island plant accident, and shipped it to a DOE facility in Idaho. Other spent fuel was shipped from utilities in Michigan and New York to the West Valley site in upstate New York for reprocessing.

214. Alabama Power Co. v. Department of Energy, No. 00-16138-J (11th Cir. 2000).

215. For summaries, see MARK HOLT, CIVILIAN NUCLEAR SPENT FUEL TEMPORARY STORAGE OPTIONS (Congressional Research Service Report No. 96-212 ENR, 1998) and CONGRESSIONAL RESEARCH SERVICE, CIVILIAN NUCLEAR WASTE DISPOSAL (Congressional Issue Brief No. 92059, 2000).

216. M.V. Rajeev Gowda & Doug Easterling, Nuclear Waste and Native America: The MRS Siting Exercise, 229 RISK: HEALTH, SAFETY & ENV'T 233 (1998).

217. Nancy B. Collins & Andrea Hall, Nuclear Waste in Indian Country: A Paradoxical Trade, 12 L. & INEQUALITY J. 267, 303 (1994); Gowda & Easterling, supra note 216, at 246-48.

218. The term capacity factor is more technically accurate, because it refers to the net capacity of a plant to produce power. The ore commonly misused load factor refers to utilization of the power.

219. The load factor is the percentage of time a plant is operating and producing power.

220. The WIPP is the Waste Isolation Pilot Plant, see the discussion of TRU waste in Section II.D. infra.

221. Although the waste emplacement operation at WIPP is touted by some as evidence that the "nuclear waste problem is being solved," the evidence that WIPP is performing adequately may be thousands of years away. Also, there is some concern that this first repository in New Mexico could become the nation's only repository, and that it will be used later for disposal of high-level waste and spent nuclear fuel as well as TRU wastes. High-level waste and spent nuclear fuel disposal in WIPP is currently prohibited by § 12 of the WIPP Land Withdrawal Act. Waste Isolation Pilot Plant Land Withdrawal Act of 1992, Pub. L. No. 102-579, § 12.

222. The lack of significant contamination from the storage of spent fuel at private nuclear power plants contrasts sharply with the contamination and waste storage safety problems resulting from the government's reprocessing of spent fuel by the government for producing nuclear weapons materials, in one of the few instances where the terms "massive," "extraordinary," and "vast" are appropriate. See LINKING LEGACIES, supra note 24.

223. See MATTHEW BUNN ET AL., INTERIM STORAGE OF SPENT NUCLEAR FUEL: A SAFE, FLEXIBLE, AND COST-EFFECTIVE NEAR-TERM APPROACH TO SPENT NUCLEAR FUEL MANAGEMENT (2001) (Harvard University Project on Managing the Atom and University of Tokyo Project on Nuclear Energy).

224. Letter from Spencer Abraham, Secretary of Energy, to the President George W. Bush, on site recommendation (Feb. 14, 2002); NWPA § 114(a)(1) 42 U.S.C. § 10134 (authority to designate site); U.S. DOE, RECOMMENDATION OF THE SECRETARY OF ENERGY REGARDING THE SUITABILITY OF THE YUCCA MOUNTAIN SITE FOR A REPOSITORY UNDER THE NUCLEAR WASTE POLICY ACT OF 1982 (2002).

225. Arjun Makhijani, A Bad Approach to Nuclear Waste, WASH. POST, Feb. 13, 2002, at A27.

226. With the exception of a brief operation at the West Valley Plant I in New York, which was heavily subsidized by the government, and unsuccessful attempts in Illinois and South Carolina, the United States has not used reprocessing for civilian nuclear power plant fuel. In contrast, England, France, and Japan have traditionally reprocessed their civilian spent nuclear fuel, although all of these countries appear to be phasing out reprocessing operations as uneconomical. Russia continues to reprocess spent fuel despite being a money-losing venture. Other countries, such as South Korea, have considered and rejected spent fuel reprocessing, in part because of the costs, and U.S. pressure. See Jungmin Kang & H.A. Feiveson, South Korea's Shifting and Controversial Interest in Spent Fuel Reprocessing, NONPROLIFERATION REV. (2001), available at http://www.cns.miis.edu/pubs/npr/vo108/81toc.htm (last visited June 3, 2002).

227. Nuclear waste, some of which could be defined as high-level waste because it was derived form early reprocessing operation at the Oak Ridge National Laboratory in Tennessee was stored in "Gunite Tanks." This waste was largely removed from these tanks during the 1990s, and solidified for disposal as TRU waste at the WIPP site in New Mexico.

228. U.S. DOE, THE 1996 BASELINE ENVIRONMENTAL MANAGEMENT REPORT, supra note 124, at 4-17.

229. Boron is commonly used to absorb neutrons for radiation shielding. Silica is a very common mineral used in virtually all glass.

230. DOE Order 435.1; DOE Order and Manual on Radioactive Waste Management and Implementation Guide, 64 Fed. Reg. 37948 (July 14, 1999).

231. NRDC was joined in the litigation by the Snake River Alliance of Idaho and the Yakima Indian Nation, which is located near the Hanford site.

232. Natural Resources Defense Council v. Abraham, 244 F.3d 742, 31 ELR 20547 (2001).


234. Similar wastes from the Soviet "Mayak" weapons program near Chelyabinsk and Khystym, exploded from underground storage tanks in 1957, rendering thousands of square miles uninhabitable, and causing road and rail maps to be redrawn. See ZHORES MENVEDEV, NUCLEAR ACCIDENT IN THE URALS (1980). See, e.g., BRADLEY, supra note 120. Noting that Soviet waste was typically discharged directly into nearby Lake Kharachai and the Techa River, one Russian (and former Soviet) official remarked to the author at a meeting in Chelyabinsk, that the Russians did not have the same problems as the United States with high-level waste tanks: "The good news is we don't have as much waste in tanks because we dumped it in the river; the bad news is we don't have as much waste in tanks because we dumped it in the river."

235. Vadose zone is the unsaturated zone below ground but above the groundwater table.

236. A.B. Kersting et al., Migration of Plutonium in Ground Water at the Nevada Test Site, 397 NATURE 56 (1999).

237. More precisely, TRU waste includes alpha-(a subatomic particle composed two protons and two neutrons, indistinguishable form a helium atom nucleus) emitting wastes containing more than 100 nanocuries/gram of TRU isotopes, i.e., isotopes with an atomic number larger than uranium, or more than 92 on the periodic table of elements.

238. A relatively small amount of plutonium and some exotic TRU isotopes have been produced for non-defense research projects. Because Congress designated DOE's TRU waste disposal facility for "defense-related" TRU waste, there is a concern that these small quantities of non-defense TRU waste could be stranded at laboratories where they were generated.

239. The facility is neither a pilot project (it is a complex of full-scale disposal caverns carved out of a salt bed, nearly one-half-mile below the southern New Mexican desert) nor a plant (it involved relatively simple and small surface facilities for unloading and support). James Brooke, Deep Desert Grave Awaits First Load of Nuclear Waste, N.Y. TIMES, Mar. 26, 1999, at A1.



242. The potential factors and events that could elevate WIPP to historic importance include: (1) the operational experience in successfully operating a deep geologic repository (albeit for a fraction of its 10,000+ year lifetime) substantially reducing risks by reducing the backlog of stored TRU wastes that present legitimate risks, or alternatively if an operational accident occurs, raising questions about the safety of deep geologic disposal of radioactive waste; (2) if the NWPA is amended to allow the disposal of high-level (not just TRU) waste in WIPP, as some have proposed, notwithstanding the statutory ban on disposal of high-level waste and spent nuclear fuel (Waste Isolation Pilot Plant Land Withdrawal Act of 1992, Pub. L. No. 102-579, § 12, as amended by the National Defense Authorization Act for Fiscal Year 1997, Pub. L. No. 104-201 (1996)); and (3) if WIPP is used for disposal of significant amounts of surplus weapons-grade plutonium.

243. Pub. L. No. 102-579, 106 Stat. 4777, as amended by the National Defense Authorization Act for Fiscal Year 1997, Pub. L. No. 104-201 (1996)

244. 40 C.F.R. pt. 164.

245. Waste Isolation Pilot Plant Land Withdrawal Act of 1992, Pub. L. No. 102-579, 106 Stat. 4777. Congress further exempted DOE from other regulatory requirements in 1996, e.g., compliance RCRA LDR restrictions. National Defense Authorization Act for Fiscal Year 1997, Pub. L. No. 104-201 (1996).

246. DOE generally followed the regulatory requirements laid out in the WIPP Land Withdrawal Act, including submitting documents to comply with EPA radiation standards at 40 C.F.R. pt. 194, and the RCRA Part B permitting process (Waste Isolation Pilot Plant Land Withdrawal Act Amendments of 1996, Pub. L. No. 102-579, § 8). Near the end of the process, however, DOE abandoned its commitment to seek a Part B permit before opening WIPP (even though permit approval was virtually certain and only a few months away), and prevailed in litigation, allowing DOE to operate WIPP under "interim status."



249. E.g., plutonium in concentrations less than 100 nCi/gram.

250. See Section II., supra, entitled A Radioactive Waste Primer.

251. 42 U.S.C. § 2021; 10 C.F.R. pts. 61-62.

252. See, e.g., DOE Order 435.1, DOE Order and Manual on Radioactive Waste Management and Implementation Guide, 64 Fed. Reg. 37948 (July 14, 1999), and DOE Order 5820.2A.

253. See generally U.S. DOE, ADVISORY COMMITTEE ON EXTERNAL REGULATION OF DOE NUCLEAR SAFETY, IMPROVING REGULATION OF SAFETY AT DOE NUCLEAR FACILITIES (1995); U.S. DOE, REPORT OF THE DEPARTMENT OF ENERGY WORKING GROUP ON EXTERNAL REGULATION (1996) (DOE/US-0001); and Memorandum of Understanding Between the U.S. Department of Energy and the Nuclear Regulatory Commission, "Pilot Program on External Regulation of DOE Facilities by NRC, Signed by Energy Secretary Federico Pena and NRC Chair, Shirley Jackson (Sept. 17, 1997).

254. The DOE's Environmental Management program annual budget grew from approximately $ 1 billion in 1990 to more than $ 6 billion in 2000. A large part of this budget growth reflects increased responsibilities for facility management, but there was also a significant increase in cleanup-derived waste generated. DOE waste generation rate is largely immune to market forces, and often operates in perverse ways because of contractor incentives to inflate work scope and costs to increase their own revenues (the more waste requiring on-site disposal, the more costs can be billed to the government. Consequently efforts to reduce waste generation by "internalizing" waste management costs with the generator (imposing responsibility to manage waste with the generating program, such as defense program) had little effect because the same contractor managed the wastes and sought to inflate their own billable costs. Also, yeoman efforts at pollution prevention by a small group of DOE employees pushed vainly against the tide of contractor incentives and other program incentives.

255. Some pressure is imposed by the use of commercial facilities like Envirocare of Utah, which is independently regulated by the NRC. Most DOE waste, however, is disposed of within the borders of DOE facilities where it is exempted form any independent regulation.

256. The last year for which comparable data were analyzed and published by DOE.

257. U.S. DOE, INTEGRATED DATABASE—1996: U.S. SPENT FUEL AND RADIOACTIVE WASTE INVENTORIES, PROJECTIONS, AND CHARACTERISTICS 4-9 (1997) (DOE/RW-0006. Rev. 13). The amount of nonenvironmental restoration, e.g., decontamination and decommissioning-related wastes, waste generated by DOE has remained steady as of 1999 at approximately 35,000 m3, while commercially generated waste volumes have continued to decline. See U.S. DOE, SUMMARY DATA ON THE RADIOACTIVE WASTE, SPENT NUCLEAR FUEL, AND CONTAMINATED MEDIA, supra note 28, at 7-1.

258. The size of this gap is not clear because the amount of low-level waste generated by commercial sites is not available publicly after 1999. Prior to 1999, when Congress eliminated the funding, DOE operated a program to support the commercial low-level waste industry program by, among other things, tracking waste generation, shipments, and disposal.


260. EG&G IDAHO, DRAFT INTEGRATED DATA BASE FOR 1989, SPENT FUEL AND RADIOACTIVE WASTE INVENTORIES, PROJECTIONS, AND CHARACTERISTICS (1989) (DOE/RW-006, Rev. 5) (DOE contractor for the Idaho National Engineering and Environmental Laboratory).




264. 42 U.S.C. §§ 2021b-2021j.

265. U.S. GAO, LOW-LEVEL RADIOACTIVE WASTES, supra note 259. In addition, DOE also spent millions of dollars annually from general U.S. Treasury revenues promoting the low-level waste industry with professional lobbying support on Capitol Hill and providing technical assistance from the Idaho National Engineering and Environmental Laboratory that would have otherwise been paid by the private sector.

266. Pub. L. 99-240, 99 Stat. 1842 (1986).

267. 42 U.S.C. §§ 2021b-2021d (1988 & Supp. II 1990).

268. Dan Berkovitz, Waste Wars: Did Congress "Nuke" State Sovereignty in the Low-Level Radioactive Waste Policy Amendments Act of 1985?, 11 HARV. ENVTL. L. REV. 437, 439-440 (1987)

269. New York v. United States, 505 U.S. 144, 22 ELR 21082 (1992).

270. As discussed in Section V.C., supra, entitled, Low-Level Waste, the United States does not define wastes according to the level or persistence of radioactivity, so there is no clear relationship between waste type and longevity of waste hazard using the U.S. system. European waste classification systems, however, are typically related to the radioactivity in the wastes, and therefore a disposal design can more reliably be related to the type of waste it contains.

271. 41 U.S.C. § 10171b, and 10 C.F.R. § 20.1403. Interestingly a more narrow provision in § 151c of the NWPA requires, not merely authorizes, the government to take title to sites "when the waste is the result of licensed activity to recover zirconium, hafnium and other rare earth elements for source material." Id. § 10171c. So far, the only site where this provision has been found to apply is the AMAX site near the Ohio River in Parkersburg, West Virginia, not coincidentally, the home state of powerful Sen. Robert Byrd (D-W. Va.).

272. U.S. NRC, U.S. DOE, Agreement in Principle for Transfer of NRC Restricted Release Sites to DOE as Authorized Under Section 151(b) of the Nuclear Waste Policy Act, Signed by DOE Assistant Secretary Huntoon and NRC Division Director John Greeves (Mar. 15, 2001). The Agreement in Principle committed DOE and NRC to work toward a Memorandum of Agreement on the NWPA § 151b issue.

273. The NRC has begun an EIS for the decontamination and decommissioning of the Sequoia Fuels Corporation in Oklahoma, which is expected to require long-term stewardship after cleanup is completed. Similarly, the Hematite facility south of St. Louis, Missouri, is undergoing a cleanup process that will likely result in residual contamination requiring long-term stewardship.

274. 40 C.F.R. pt. 261.

275. One technical issue with mixed waste is the problems that could arise upon incineration: temperatures high enough to destroy certain hazardous chemicals, like organic solvents, e.g., 2000 degrees Fahrenheit for two seconds, are also hot enough to vaporize radionuclides (as well as nonradioactive hazardous heavy metals) and other metallic elements, thereby making entrainment on high efficiency particulate air filters difficult.

276. See generally Finamore, supra note 44, at 83; Fehner & Gosling, supra note 44, at 5; Panel Discussion: Regulation of Nuclear Materials; Should National Defense and Other National Policies Override State Standards?, 22 ELR 10014 (Jan. 1992); Michael W. Grainey & Dirk A. Dunning, Federal Sovereign Immunity: How Self-Regulation Became No Regulation at Hanford and Other Nuclear Weapons Facilities, 31 GONZ. L. REV. 83 (1996).

277. Pub. L. No. 102-386, 106 Stat. 1505 (1992).

278. Department of Energy v. Ohio, 503 U.S. 607, 628, 22 ELR 20804, 20810 (1992).

279. Federal Facilities Compliance Act of 1992, 102-386, 106 Stat. 1505 (amending scattered sections in 42 U.S.C. §§ 6901-6961 (1994)).

280. 503 U.S. 607, 22 ELR 20804 (1992).

281. Congress did not similarly amend the Clean Water Act (CWA), 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA §§ 101-607, and, therefore, federal facilities are not subject to punitive penalties for past violations of the CWA.

282. National Defense Authorization Act for Fiscal Year 2000, Pub. L. No. 106-65, 113 Stat. 512, tit. XXXII, (1999) (codified as National Nuclear Security Administration Act, 50 U.S.C. ch. 24).

283. K.C. Schefski et al., Sovereign Immunity and the National Nuclear Security Administration: A King That Can Do No Wrong?, 31 ELR 10111 (Jan. 2001).

284. In 1946, the Atomic Energy Act (AEA) was passed, and in 1954 amended, to create the Atomic Energy Commission (AEC) and bring the production of nuclear weapons under governmental control. AEA of 1946, ch. 724, 60 Stat. 755, as amended by the AEA of 1954, ch. 1073, 68 Stat. 919 (codified at 42 U.S.C. §§ 2011-2297g-3 (1994)). While the AEA recognized the need to protect [public health] and safety, it did not require the development of specific regulatory standards for nuclear weapons facilities and failed to mention protection of the environment as a goal. Id. § 2012(d). The AEC was dissolved under the Energy Reorganization Act (ERA) of 1974. The ERA transferred the AEC's oversight of nuclear weapons facilities transferred to the Energy Research and Development Commission (ERDA) and created the NRC to license and regulate commercial nuclear facilities. 42 U.S.C. §§ 5801-5891, 5814 (1994). The ERA granted ERDA internal regulatory authority over the management of radioactive waste. Id. § 5812(d). ERDA was superceded by DOE in 1977 under the Department of Energy Organization Act of 1977, which continued the internal regulatory structure. 84 U.S.C. §§ 7101-7382f (1994). DOE currently derives its core nuclear program regulatory functions from all three acts. See generally Finamore, supra note 44, at 83; O'Very, supra note 44, at 281.

285. This assumes each nuclear warhead requires 8 kilograms (18 pounds), based on assertions by Senator Domenici. SEN. PETE V. DOMENICI, A NEW NUCLEAR PARADIGM; ONE YEAR OF PROGRESS, supra note 8.


287. Conversation with Dr. Benjamin Franklin Cooling and Dr. F.G. Gosling of the History Division, Office of the Executive Secretariat, U.S. DOE (Jan. 17, 1993).


289. See most recently, Memorandum from Jessie Hill Roberson, supra note 54.


291. U.S. DOE, OFFICE OF LONG-TERM STEWARDSHIP (EM-51). DRAFT LONG-TERM STEWARDSHIP STUDY (2000); Notice of Availability of Draft Long-Term Stewardship Study, 65 Fed. Reg. 64934 (Oct. 31, 2000).

292. Bill Lambrecht, Uphill Battle, ST. LOUIS POST-DISPATCH, Nov. 18, 2001, at A1; Letter from Steve Mahfood, Director of Missouri Department of Natural Resources, to Assistant Energy Secretary, Jessie Roberson (Sept. 27, 2001); Shawn Terry, States Complain to DOE About Planning for Long-Term Stewardship, INSIDE ENERGY, Oct. 22, 2001, at 7.

293. 42 U.S.C. §§ 4321-4370d, ELR STAT. NEPA §§ 2-209.

294. "Any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented." 42 U.S.C. § 4331, ELR STAT. NEPA § 102(2)(C).

295. See requirement for the Baseline Environmental Management Report at Pub. L. No. 103-337, 103d Cong. (1994), codified at 42 U.S. Code 7272k.

296. The Omnibus Budget Reconciliation Act, as amended, requires that the NRC recover through fees approximately 98% of its budget authority, less monies appropriated from the Nuclear Waste Fund, in FY 2001, 96% in FY 2002, 94% in FY 2003, 92% in FY 2004, and 90% in FY 2005. See 10 C.F.R. pts. 170 and 171.

297. 42 U.S.C. §§ 7901-7942.

298. 10 C.F.R. pt. 962. For example DOE remains self-regulating with regard to nuclear waste (except the high-level waste repository, and construction of the vitrification facility at Hanford) as well as occupational health and safety.

299. In 1981, President Reagan famously appointed retired dentist and former Gov. James Edwards (R-S.C.) as Secretary of Energy with a mandate to dismantle the agency, until the president was informed in March 1981 that DOE has responsibility for nuclear weapons production, at which point he reversed himself and proposed large budget increases for DOE. In 1995, when Republicans took control of both houses of Congress, they also proposed to eliminate DOE for cost-cutting purposes. Similarly, the proposals were based largely on the incorrect notion that DOE's primary mission was energy regulation and promotions, rather than nuclear weapons production and cleanup. Also, members learned that most large DOE facilities are located in traditionally Republican-controlled congressional districts.

300. The exception is the long-term stewardship requirements for elemental metals contamination such as mercury and lead.



303. Stephen Langel, DOE Plan to Shift Stewardship to Other Agencies Splits Agency, INSIDE EPA SUPERFUND REP., Mar. 4, 2002, at 1.

304. See Section IV.B.2., supra, discussing Principle 16.

305. For example the NRC requires that licensees provide approximately $ 600,000 for long-term care of uranium mill tailings sites that contain wastes with half-lives of billions of years. See 40 C.F.R. § 40.2a. Similarly, private low-level waste disposal sites must establish financial bonding mechanisms for ensuring long-term funding for site maintenance. See, e.g., financial surety and assurance bond and closure requirement for the Envirocare of Utah disposal facility pursuant to Utah Administrative Code 313-R25-31.

306. WASH. REV. CODE § 43.200.080 (1998); "site closure account—perpetual surveillance and maintenance account" and South Carolina Hazardous Waste Management Act § 44-56-160 (1981) directs the state Department of Health and Environmental Control to establish a "Hazardous Waste Contingency Fund." For the Barnwell Site a special Decommissioning Trust Agreement was negotiated between Chem-Nuclear facilities (Grantor) and the state of South Carolina (Trustee).

307. 40 C.F.R. § 262.141(c)

308. Consent Order, Tennessee Dep't of Env't & Conservation v. Department of Energy, No. 99-0438 (Nov. 2, 1999). This fund was established pursuant to Tennessee state law. See TENN. CODE ANN. §§ 68-212-108(h), 9-4-603. DOE has asserted that this is not a trust fund but is an "investment fund" (without indicating that there is any difference in this distinction), and has insisted that the fund in Tennessee is a one of a kind situation that sets no precedent for any of the more than a hundred sites where DOE plans to place residual waste and contamination in place after cleanup is completed.

309. BAUER & PROBST, supra note 202; U.S. DOE, LONG-TERM STEWARDSHIP STUDY (2001). In the public comments regarding the draft DOE study, concern about long-term funding was the second most common topic of comments submitted.


311. Unfortunately, a "Chamber of Commerce" mentality too often pervades the community response after a cleanup is completed, whereby no contamination information is made available because it is perceived to impose a "stigma" on the community. In fact, delays in having the information available can cause significant liability problems, increased costs for insurance and constructions contingency, and higher development costs while capital equipment that has been mobilized sites idle while the extent of contamination in investigated.

312. For example, the recent initiative by Senator Domenici to study the health impacts of radiation is widely recognized as an effort to loosen standards, and seek to prove a hormesis effect of radiation, where by at certain levels, radiation has a therapeutic effect.

313. "Risk assessment" is distinguished from "risk management" by a seminal 1983 National Academy of Sciences report on the subject, known as the "Red Book." The NAS report recognized risk assessment as the objective analysis of the sources, hazards exposures and effects; whereas risk management was identified as the subsequent management decisions using the best available information.

314. See IV.B.2, supra, discussing Principle 15.

315. Paul Leventhal, The Nuclear Watchdogs Have Failed, INT'L HERALD TRIB., Sept. 24, 1991, at 11; Paul Leventhal, The Spread of Nuclear Weapons in the 1990s, 8 MED. & WAR 261 (1992).

316. Because both the "Defense Programs" or "DP and the "Environmental Management" or "EM" are both funded from Atomic Energy Defense Activities account within the defense budget, then there is a direct, zero sum, trade off between funding nuclear weapons activities versus funding environmental cleanup and waste management. See U.S. DOE, Office of Environmental Management, Budget Documents, at http://www.em.doe.gov/budget_docs.html (last visited Apr. 26, 2001); and Office of Management, Budget, and Evaluation, FY 2002 Budget Request, at http://www.mbe.doe.gov/budget/03budget/index.htm (last visited Apr. 26, 2002).


318. The same individuals often people serve as DOE contractors, local government officials, and work to promote local economic development.

319. By law: the U.S. Supreme Court, in Train v. Colorado Public Interest Research Group, 426 U.S. 1, 6 ELR 20549 (1976), held that the CWA does not apply to radioactive materials regulated under the AEA, and similarly the Supreme Court, in Department of Energy v. Ohio, 503 U.S. 607, 22 ELR 20804 (1992), held that RCRA hazardous waste enforcement powers of states did not extend to federal facilities, which were protected by sovereign immunity unless explicitly waived by Congress. By practical limitations: DOE could limit access to facilities for environmental inspectors by denying or delaying security clearances for years until the inspector assigned had moved to another job. Also, DOE security staff sometimes harassed those environmental inspectors who succeeded in gaining access to facilities (see "Three Blind Mice" incident at Rocky Flats).

320. Although Pu-239 has a half-life (time required for one-half of a given amount of a radioactive element to decay to other elements) of 24,360 years, its persistence is virtually perpetual from a practical environmental management perspective. See R.B. Leonard, Properties of Plutonium Isotopes, in PLUTONIUM HANDBOOK (O.J. Wick ed., 1980). The long-lived nature of radioactive waste is not unique. Certain natural toxins, e.g., lead, are truly perpetual. Also, a class of persistent organic pollutants, e.g., dioxins and furans, can be as long-lived and hazardous as certain radioactive pollutants. L. RITTER ET AL., AN ASSESSMENT REPORT ON: DDT-ALDRIN-DIELDRIN-ENDRIN-CHLORDANE, HEPTACHLOR-HEXACHLOROBENZENE, MIREX-TOXAPHENE, POLYCHLORINATED BIPHENYLS, DIOXINS AND FURANS (1995).

32 ELR 11059 | Environmental Law Reporter | copyright © 2002 | All rights reserved