All mixed up about mixed waste.

• Author: Leonard, Rebecca
• Position: Nuclear waste treatment

1. INTRODUCTION

   Since the Manhattan Project, (1) knowledge and use of nuclear technology has increased dramatically. (2) Today, this technology is used not only to make weapons, but for civilian projects such as producing energy and advancing research in medicine. (3) Unfortunately, the enthusiasm for developing uses for nuclear technology has not inspired a like enthusiasm for developing treatment methods for the resulting nuclear waste. (4) The lag in nuclear waste treatment technology has led to a crisis in this country. In the words of the Department of Energy:

   The nation faces daunting institutional and technical challenges in dealing with the environmental legacy of the Cold War. We have large amounts of radioactive materials that will be hazardous for thousands of years; we lack effective technologies and solutions for resolving many of these environmental and safety problems; we do not fully understand the potential health effects of prolonged exposure to materials that are both radioactive and chemically toxic.... (5) Waste production continues, but very few facilities can effectively treat or permanently store it. (6)

   Since the Manhattan Project, the federal government has been one of the most significant generators of radioactive waste. (7) As a result, it has been accumulating various types of radioactive waste in its weapons complex. (8) The Idaho National Engineering and Environmental Laboratory (INEEL) is one example of a Department of Energy (DOE) facility that currently produces and stores many types of radioactive waste, including mixed waste, which is particularly problematic because it is radioactive and hazardous. (9) For over forty years, DOE believed its facilities were exempt from federal or state regulation under the Resource Conservation and Recovery Act (RCRA) (10) because of issues of national security and sovereign immunity. (11) INEEL, therefore, managed its mixed waste without regard to the waste's hazardous characteristics, treating it like all other radioactive waste. Today, the adverse environmental effects of this deficient management scheme are manifesting in the soil, sediment, and groundwater in and around the facility--groundwater 600 feet below the site is contaminated, and INEEL is now on the National Priority List for cleanup (12) under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980. (13) INEEL is but one example of the potential harm caused by management of mixed waste without regard to the waste's hazardous characteristics. The Environmental Protection Agency (EPA), however, has ignored this lesson and, in 2001, finalized a rule (MW Rule) exempting certain mixed waste from RCRA regulation. (14)

   The MW Rule reverses EPA's previous position, which the D.C. Circuit affirmed, that mixed waste is regulated under RCRA and that indefinite storage of mixed waste is prohibited. (15) The MW Rule completely exempts generators of low-level mixed waste from RCRA's manifest, transportation, and disposal requirements. (16) Under the MW Rule, generators may store low-level mixed waste (17) indefinitely, subject only to standards developed by the Nuclear Regulatory Commission (NRC) designed for low-level radioactive waste. (18)

   The MW Rule creates a regulatory scheme for mixed waste that is insufficient to fulfill the purpose and goals of the Hazardous and Solid Waste Amendments (HSWA) of 1984 (19) to RCRA, and it is explicitly prohibited by sections 3004(j) and (m) of RCRA. (20) Mixed waste is hazardous waste and therefore should be subject to all of RCRA's restrictions and requirements. (21) Section 3004(j) specifically prohibits indefinite storage of hazardous waste, and section 3004(m) prohibits disposal of untreated hazardous waste in land disposal facilities. (22) Congress took such strong proscriptive measures because 1) it wanted to protect the public and the environment by preventing disposal of untreated waste, and 2) it wanted to force development of new treatment technology for hazardous waste. (23) The MW Rule, however, fails to achieve either goal. First, indefinite storage at generator facilities is the functional equivalent of land disposal and poses corresponding risks to human health and the environment. (24) Second, this exemption neutralizes any incentive to develop innovative technology by allowing generators to store their own waste with no enforceable schedule for future treatment and disposal. (25) As a result, EPA's MW Rule is inconsistent with the policies and goals of RCRA.

   Part II of this Comment provides background on low-level mixed waste and its tumultuous regulatory history. Part III explains EPA's MW Rule and the rule's impact on the regulated community. Part IV identifies specific reasons the NRC regulation of low-level mixed waste is insufficient to achieve RCRA's twin policy objectives--to protect human health and the environment and to force new technology for treatment and disposal of low-level mixed waste. Part IV also evaluates EPA's purported precedent for creating this exemption and compares this exemption to other allowable exemptions. Part IV argues that the MW Rule creates an exemption for generators of low-level mixed waste that is inconsistent with both legislative history and court interpretation, which dictate that low-level mixed waste must be subject to RCRA. (26) Part V concludes by suggesting that this exemption from regulation under RCRA for low-level mixed waste generators is contrary to the spirit and the letter of the law and makes serious environmental problems even worse.

2. BACKGROUND INFORMATION

   1. What Is Low-Level Mixed Waste?

      The MW Rule applies to low-level mixed waste, which is a subset of mixed waste. Mixed waste is waste that is considered radioactive under the Atomic Energy Act (AEA) (27) and hazardous under RCRA. (28) This definition covers a wide range of waste, from waste exhibiting low radioactivity and low concentrations of hazardous constituents to waste that is highly radioactive and contains high concentrations of hazardous material. Low-level mixed waste is comprised of all low-level radioactive material exhibiting any hazardous characteristic. (29)

      Low-level mixed waste includes a wide spectrum of materials ranging from organic material (toluene, xylene, CFCs, and PCBs) (30) to heavy metals (lead and cadmium). (31) The hazardous aspect of low-level mixed waste can be significant, and these materials can result in serious adverse human health and environmental effects if mismanaged. (32) It is as important to protect humans and the environment from these types of hazardous materials as it is to protect against low-level radioactive waste. Moreover, the additional synergistic effects of exposure to mixed waste could be even more damaging than exposure to a single material. (33)

      Low-level radioactive waste is a catchall term for all radioactive waste not considered high-level waste. (34) The half-life (35) of low-level radioactive waste ranges from six hours to 4.47 billion years, (36) and the appropriate isolation time for most low-level waste is a few centuries. (37) The effects of radiation exposure depend on the type and dose of the radiation and nature of the individual exposed. (38) Radiation can cause damage to body tissue, such as cancer or leukemia, and genetic effects that result in damage to future generations. (39) Although this waste is called low-level, it still produces radiation, which can cause serious health effects. (40)

      Currently, there is no comprehensive and reliable estimate of how much low-level mixed waste is produced or stored in this country. This is partly due to lack of knowledge on the part of generators and partly due to fear of reporting accurate waste estimates, which would subject generators to further regulation. (41) A joint NRC-EPA survey of probable generators of low-level mixed waste gives the most recent estimate of how much low-level mixed waste is being produced. However, the agencies precede their conclusions with a disclaimer describing "uncertainties in estimates." (42) This voluntary survey revealed 1,143,000 cubic feet of low-level waste, nine percent of which was mixed waste. (43) Generators of this waste include nuclear power plants, industrial reactors, research facilities, and universities. (44) These generators produce waste in many forms including cleaning solvents, solid trash, and contaminated soil. (45) Generators currently store this waste in violation of RCRA at their facilities with no plans for treatment and disposal. (46)

   2. Regulatory History of Mixed Waste

      Congress established a unique regulatory scheme for mixed waste, which is jointly regulated by NRC and EPA. EPA has jurisdiction over hazardous waste through RCRA, (47) and NRC has jurisdiction over radioactive waste through the AEA. (48) The current format is a result of many adjustments to the original regulatory scheme.

      Until 1984, DOE (then the primary producer of mixed waste) operated under the assumption that it was exempt from regulation by EPA under RCRA. A federal district court partially rejected DOE's assumption in Legal Environmental Assistance Foundation v. Hodel, (49) concluding that RCRA regulates DOE hazardous waste, but the court left open the question whether RCRA applies to mixed waste. (50) Meanwhile, Congress toughened RCRA's hazardous waste standards with the enactment of the Hazardous and Solid Waste Amendments (HSWA). This new statutory language added a ban on land storage of untreated hazardous waste and set time limits on temporary storage. (51)

      EPA responded to this stricter language by stating it had RCRA jurisdiction over all hazardous materials, leaving only radionuclides (52) exempt. (53) This interpretation effectively gave EPA joint jurisdiction over mixed waste, as it was inseparable from those radionuclides. By 1990, EPA recognized in its Hazard Ranking System (54) that sites containing "mixed radioactive...