Radioactive Mixed Waste

AuthorSusan M. McMichael
Page 327
Chapter 10
Radioactive Mixed Waste
10.0 Introduction
An underlying problem with control of radioactive waste and pollution is that current law is a
hodgepodge of gap-lled and overlapping statutes . . . . Some of these statutes lack the environmental
focus of environmental statutes.1
is chapter addresses the unique issues a ssociated with facilities that mana ge radioactive mi xed waste. ese
facilities are regulated under RCRA Subtitle C and the Atomic Energy Act (AEA) of 1954, as amended. Radio-
active mixed waste, also k nown simply as mixed waste, is dened as “waste that contains both haz ardous waste
and source, special nuclear, or byproduct material subject to the [AEA] of 1954.”2 EPA and authorized states
regulate the haza rdous component of the waste through RCRA, while the radioactive component of the waste
is regulated under the AEA by the Nuclear Regulatory Commission ( NRC) or through U.S. Department of
Energy (DOE) orders. RCRA and AEA reg ulation of radioactive mixed waste has been described as creating a
“recipe for confusion,” with the potential for burdensome regulatory complexities, and duplicative or conict-
ing requirements.3 Others pointedly describe it as a sy stem for control and permanent disposal that is “neither
functional nor rational.”4 EPA addressed some of these concerns for commercial generators in the Mixed Waste
Rule, discussed below. e vast majority of mixed waste, however, remains DOE’s responsibility as the result of
widespread contamination from legacy waste and histori-
cal practices (see Chapter 1.1.3, “Federal Facility Compli-
ance Act”).
RCRA permitting of mixed waste presents unique
challenges and issues, including worker safety, inspec-
tion, treatment, disposal, closure, and post-closure care.
ese issues, summarized in this chapter, can be more
fully understood through an overview of the RCRA and
AEA regulatory frameworks for how these materials are
regulated (see Box 10.1). e rst part of the chapter (Sec-
tion 10.1) is an overview of mixed waste regulation; it also
1. W L. C  J O P J, N A  A G, E S, R M,
W  P, A G  S   P  L, at 39-40 (Sept. 1994) (note, this publication expressed the views
of the authors, and not NAAG).
2. RCRA §004(41), 42 U.S.C. §6903(41) (2000). e term “mixed waste” was added to RCRA under the Federal Facility Compliance Act of 1992,
Pub. L. No. 102-386, 106 Stat. 1505 (Oct. 6, 1992).
3. See U.S. EPA, Storage, Treatment, Transportation, and Disposal of Mixed Waste, 66 Fed. Reg. 27218, 27221 (May 16, 2001) [hereinafter Mixed
Waste Rule] (“EPA and NRC recognize that joint oversight of mixed waste has been cumbersome . . . and has complicated safe management and
disposal of mixed waste”); John S. Applegate & Stephen Dycus, Institutional Controls or Emperor’s Clothes? Long-Term Stewardship of the Nuclear
Weapons Complex, 28 ELR 10631, 10635 (Nov. 1998) (RCRA and AEA potential overlap creates a recipe for confusion); D P. O’V  .,
C  A   21 C, at 292 (Westview Press, 1994) (the distinction between chemical and radioactive components
of the same wastes results in burdensome regulatory complexity); and NAAG, R M, W  P, A G 
S   P  L, E S (Sept. 1994).
4. Anthony J. ompson & Michael L. Goo, Mixed Waste: A Way to Solve the Quandary, 23 ELR 10705 (Dec. 1993).
Box 10.1
Rad ioac tive M ixed Wast e
• Over view of RC RA an d AEA Regu lation
• Types of Mixed Waste
• Histo ry o f Mix ed Waste Regul ation
• Mixed Waste Rule
• Low-Leve l Mi xed Waste Dispo sal
Page 328 RCRA Permitting Deskbook
discusses the AEA, and the roles of the NRC and DOE. Section 10.2 discusses the types of mixed waste subject
to RCRA jurisdiction, including low-level a nd transuranic m ixed waste. Section 10.3 explores the turbulent
history of RCRA’s regulation of mixed waste and EPA’s Mixed Waste Rule. Section 10.4 discusses mixed waste
disposal, including the Waste Isolation Pilot Plant (WIPP), and the lack of disposal avai lability for low-level
radioactive a nd mixed waste. Section 10.5 discusse s RCRA permitting issues that may arise at facilities that
manage mixed wa ste.
10.1 Overview of Environmental Regulation of Radioactive Mixed Waste
10.1.1 Background
Radioactive mixed waste is a term of art c oined in the
late 1970s. Mixed waste contains both radiological a nd
hazardous components that, as a practical matter, are
often inextricably linked.5 DOE generates and man-
ages the vast majority of mixed waste. EPA estimates
that commercial mixed waste volumes are very small
(approximately 2%) compared to the total volume of
mixed waste generated or stored by DOE.6 A large vol-
ume of DOE waste is considered mixed waste because it
contains radiological substances that are contained, dis-
solved, or suspended in a nonradioactive medium from
which physical separation is impractical.7 Mixed waste
diers f rom other types of solid and haz ardous wastes
in at least the following three important respects.
The Composition of Mixed Waste Is Dierent
Mixed waste contains radiological isotopes that can
remain harmf ul to human health and the environment for thousands, or in the case of uranium-238, billions
of years.8 Due to its radiological components, it requires special considerations for handling, storage, and char-
acterization. Treatment technology has been slow and limited. According to some, certain t ypes of radioactive
materials are “nearly indestructible” and “cannot be treated to reduce toxicity.”9 Mixed wastes exist in the form
of solids (homogenous, debris, soils, gravels, and sludges) and liquids (aqueous and organic). ey have a broad
range of chemica l and radiological constituents, including radionuclides, polychlorinated biphenyls (PCBs),
heavy metals, orga nic solvents, and reactive compounds.
Legacy Mixed Waste Pre-Dates RCRA
A considerable amount of mi xed waste is referred to as legacy waste, which EPA denes as waste generated by
historical activities and which has been in storage beyond RCRA accumulation time periods because appropri-
ate treatment technologies have not been developed, or treatment and disposal capacity has not been available.10
Mixed waste is a consequence of the Cold War and ongoing research a nd weapons production associated with
the U.S. nuclear weapons complex. Dating back to 1942 and the Manhattan Project, the United States has pro-
duced vast amounts of defense and civilian radioactive nuclear wa ste.11 A study by the congressional Oce of
Technological Assessment stated that historica l practices resulted in millions of cubic yards of radioactive and
5. Brown v. Kerr-McGee Chemical Corp., 767 F.2d 1234, 1240-43, 15 ELR 20686 (7th Cir. 1985), cert. denied, 475 U.S. 1066 (1986) (discussing
inseparable nature of mixed waste). See also ompson & Goo, supra note 4, at 10705.
6. U.S. EPA, Radiation Protection Program, About Mixed Waste (2009), available at
7. U.S. EPA, Radioactive Waste; Byproduct Material, 52 Fed. Reg. 15937, 15940 (May 1, 1987).
8. Uranium-238, an alpha emitting radionuclide, has a half-life of 4.5 billion years. Applegate & Dycus, supra note 3, at 10636.
9. Id.
10. Mixed Waste Rule, supra note 3, at 27220.
11. In 1942, the Manhattan Project (the Manhattan Engineer District of the U.S. Army Corps of Engineers) produced the atomic bombs dropped
in Japan at the end of World War II.
Image court esy o f Dawn Mange s.
Radioactive Mixed Waste Page 329
hazardous wa stes buried at DOE sites with few records of burial site loc ations and contents.12 Unfortunately,
these waste management practices resulted in massive radioactive and chemical contamination at the nation’s
federal facilities. Mixed wastes were managed and disposed with little consideration of their chemical char-
acteristics, resulting in little characterization of the wastes a nd therefore signica nt problems complying with
RCRA’s waste characterization requirements necessary for cleanup. RCRA was, “[s]imply put, . . . not designed
with [mixed] waste streams in mind.”13
 
Prior to the mid-1980s, environmental regulation of mixed waste was virtually nonexistent. Today, however, it
is regulated under two dierent statutory schemes—RCRA and the AEA. Under RCRA, EPA and authorized
states regulate t he hazardous component of mixed waste. e AEA, on the other hand, enables the NRC a nd
NRC Agreement States to regulate the radionuclide component of mixed waste at commercial and non-DOE
facilities (see Sidebar 10.1). DOE is responsible for addressing t he radionuclide component of its own waste,
through self-implementing orders. ese orders, as discussed below, are not considered “external” rules, unlike
NRC, EPA, and state rules. With a few exceptions, EPA and states have no independent authority to regulate
DOE’s radioactive materials (see Section As a result, states play a critical role in environmental
regulation of radioactive waste. Most states have availed themselves of this authority, and are authorized under
the AEA and RCRA to regulate, respectively, radioactive and mixed waste. Very little mixed waste is generated
or managed in states that have no authorized mixed waste program. States with DOE faci lities, in particular,
were among the rst to receive EPA’s mixed waste authorization.
12. H.R. R. 102-111, 102d Cong. 1st Sess. 3-4 (June 13, 1991).
13. Id. at 26.
14. ese exceptions include, by example: (1) the Waste Isolation Pilot Plant, where Congress authorized EPA under the WIPP Land Withdrawal
Act to regulate radionuclides in transuranic waste; (2) the potential repository at Yucca Mountain, where Congress authorized EPA to develop
site-specic standards to protect public health and the environment from exposure to radioactive waste; and (3) the Nevada Test Site, where by
agreement, the state of Nevada has independent oversight responsibilities for nonhazardous low-level radioactive waste (LLRW). e fate of Yucca
Mountain, however, is uncertain (see note 28, infra).
Sideba r 10. 1
A Glance at State Authorizati on for Rad ioactive Mixed Wastes
States Author ized f or Ra dioactive Mixed Waste*
• 48 states and one U.S. trust territor y (Gu am).
• The Distric t of Colum bia r egulates mixed waste under its respec tive l aw, but not RCRA’s haz-
ardous waste progra m.
• EPA regulates mixed waste in Alaska, Iowa, and severa l U.S. terr itories and commonwea lths,
includ ing No rthern Marian as, R epublic of Palau, American Samoa , Fede rated State of M icrone-
sia, and the Republic of the Marshal l Isl ands.
NRC Agreement State s*
• 37 states are NRC Agreement States , wit h oth ers u nder review.
* A s of Septem ber 2 010. For an upda ted li st of EPA-auth orized states, see Appendix 2. An updated list of NRC Agreement
States can be found at w fo-finder/ region-stat e/#NRCRegi on.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT