Radioactive Tank Waste from the Past Production of Nuclear Weapons: Background and Issues for Congress
Radioactive Tank Waste from the
Past Production of Nuclear Weapons:
Background and Issues for Congress
David M. Bearden and Anthony Andrews
Resources, Science, and Industry Division
Summary
How to safely dispose of wastes from producing nuclear weapons has been an
ongoing issue. The most radioactive portion of these wastes is stored in underground
tanks at Department of Energy (DOE) sites in Idaho, South Carolina, and Washington
State. There have been concerns about soil and groundwater contamination from some
of the tanks that have leaked. DOE proposed to remove the “pumpable” liquid waste,
classify the sludge-like remainder as “waste incidental to reprocessing,” and seal it in
the tanks with a cement grout. DOE has argued that closing the tanks in this manner
would be a cost-effective and timely way to address environmental risks. Questions
were raised as to how much waste would be left in the tanks and whether the grout
would contain the waste and prevent leaks. After considerable debate, the 108th
Congress included provisions in the Ronald W. Reagan National Defense Authorization
Act for FY2005 (P.L. 108-375) authorizing DOE to grout some of the waste in the tanks
in Idaho and South Carolina. Congress did not provide such authority in Washington
State. This report provides background information on the disposal of radioactive tank
waste, analyzes the waste disposal authority in P.L. 108-375, discusses the
implementation of this authority, and examines relevant issues.
Background
DOE is responsible for managing defense nuclear waste and cleaning up
contamination at sites involved in the past production of nuclear weapons. Among these
challenges are the management and disposal of radioactive waste stored in underground
tanks at sites in three states: Hanford in Washington, Savannah River in South Carolina,
and the Idaho National Laboratory (INL). The production of radioactive materials for
nuclear weapons generated 53 million gallons of radioactive waste stored in 177 tanks at
Hanford, 37 million gallons in 49 tanks at Savannah River, and nearly 1 million gallons
in 11 tanks at the INL. Some of these tanks are deteriorating and are known or suspected
to have leaked, contaminating soil and groundwater. Of greatest concern are the tanks at
Hanford, 67 of which are known or suspected to have leaked radioactive waste that has
migrated through groundwater into the Columbia River. However, recent monitoring data
indicate that the level of radionuclides in the Columbia River meets federal and state
water quality standards. There are similar concerns about the possible contamination of
the Snake River in Idaho and the Savannah River in South Carolina.
How to decommission (i.e., close) the tanks in a cost-effective and timely manner
that mitigates environmental risk and potential exposure of workers has been the subject
of controversy. DOE has argued that removing all of the waste in the tanks would take
too long to respond to environmental risks from leaking tanks. DOE favors removal of
the “pumpable” liquid waste and immobilizing (i.e., binding up) the sludge-like residual
waste by filling the tanks with a cement grout to prevent leaks. The waste removed from
the tanks classified as “high-level” would be stored for future disposal in a deep geologic
repository (see below). Potentially affected states and environmental organizations raised
questions regarding how much waste would be left in the tanks and whether the grout
would thoroughly mix with the residual waste to solidify and contain it safely. Although
the sludge-like consistency of the residual waste likely would not be as prone to leakage
because of its semisolid form, whether pockets or layers of liquid waste may exist within
the sludge-like residues and present greater risk of leakage is uncertain.
Although removing all of the waste in the tanks would eliminate the risk of
contamination, this alternative poses other risks and challenges. DOE has argued that
methods to extract the residual waste after the pumpable liquid waste is removed would
generate a new hazardous waste stream that would need to be managed and disposed of
safely to protect the environment. DOE also asserts that there would be significant risks
of exposure to workers who would remove the residues and manage and dispose of the
resulting new waste stream. Once a tank is cleaned, there would be additional risks to
workers who would extract the tank from the ground, and there would be environmental
risks from the management and disposal of the contaminated tank metal.
Applicability of the Nuclear Waste Policy Act
How to dispose of the tank waste is further complicated by the legal issue of how
much of the waste is “high-level.” Under the Nuclear Waste Policy Act of 1982
(NWPA),1 high-level radioactive waste must be disposed of in a deep geologic repository.
Consequently, the tank waste classified as high-level must be removed from the tanks,
processed, and stored for disposal in such a repository. In July 1999, DOE issued internal
agency Order 435.1 to classify residual tank waste as “waste incidental to reprocessing,”
rather than as high-level.2 In effect, this order would exempt the residual tank waste from
NWPA requirements for disposal in a geologic repository. DOE proposed to dispose of
the residual tank waste at Hanford, Savannah River, and the INL by grouting it in place,
as discussed above. Sealing a tank using this method would depend on state concurrence,
as DOE must obtain approval from the state where the tank is located before it can be
closed with no further action to be taken.
1 42 U.S.C. 10101 et seq.
2 DOE Order 435.1: Radioactive Waste Management. See CRS Report RL32163, Radioactive
Waste Streams: Waste Classification for Disposal, by Anthony Andrews.
DOE grouted residual waste in two tanks at the Savannah River site in 2000, with
state concurrence. In 2002, DOE issued a Record of Decision to apply Order 435.1 to the
closure of the remaining 49 tanks at the site, and to grout the residual waste it classified
as incidental to reprocessing.3 The Natural Resources Defense Council (NRDC) legally
challenged DOE’s authority to dispose of the waste in this manner. The state of South
Carolina and others filed as “friends of the court,” due to concern that states would not
have a role under Order 435.1 in determining how much of the residual waste would be
left in the tanks. In 2003, a federal district court determined that DOE does not have the
authority to classify any of the waste in the tanks as other than high-level, nor to dispose
of it permanently on site through grouting or other means.4
DOE appealed the 2003 ruling, and in 2004, the U.S. Court of Appeals for the Ninth
Circuit reversed the above district court opinion, ruling that the challenge to Order 435.1
was not “ripe” for review.5 The court noted that DOE had planned to implement Order
435.1 to grout the 49 tanks, but had not yet done so. Thus, the court determined that DOE
had not violated the NWPA because it had not yet taken such action. The circuit court
opinion resulted in allowing DOE to pursue activities under Order 435.1, and NRDC or
others then could bring suit if they believed actions taken by DOE violate the law.
Waste Disposal Authority in P.L. 108-375
Prior to the appeals court decision, DOE had asked Congress to enact legislation to
clarify its authority for Order 435.1 and allow it to proceed with grouting the waste in
tanks at Hanford, Savannah River, and the INL. After considerable debate, the 108th
Congress included provisions in Section 3116 of the Ronald W. Reagan National Defense
Authorization Act for FY2005 (P.L. 108-375) authorizing DOE to classify some of the
tank waste in South Carolina and Idaho as incidental to reprocessing and to grout it in
place. Congress did not provide this authority in Washington State, where most of the
leaking tanks are located. Although this targeted authority is permanent, unless repealed
by Congress, funding to implement it is subject to annual authorization and appropriation.
An examination of provisions in Section 3116 of P.L. 108-375 follows.
Section 3116(a) authorized the Secretary of Energy, in consultation with the Nuclear
Regulatory Commission (NRC), to classify tank waste in South Carolina and Idaho as
other than high-level, upon making certain determinations. These determinations are (1)
that the waste “does not require permanent isolation in a deep geological repository,” as
is required for high-level waste, and (2) that highly radioactive radionuclides have been
removed from the waste to the “maximum extent practical.” Assuming these
requirements are met, the Secretary must determine if the radioactivity of the waste will
exceed concentration limits for Class C low-level waste.6 However, the waste could be
3 67 Federal Register 160.
4 NRDC v. Abraham, 271 F. Supp.2d 1260, 1266 (D. Idaho 2003).
5 NRDC v. Abraham, No. 03-35711, 2004 WL 2480949 (Nov. 5, 2004). For a case to be ripe,
there must be present “injury” (i.e., damage or violation) or significant threat of imminent injury.
6 10 C.F.R. 61.55. Low level waste suitable for near surface disposal is classified according to
Class A, B, and C. Class C contains the greatest concentration of radionuclides.
disposed of according to Class C performance objectives for human exposure,7 regardless
of whether the concentration exceeds allowable limits. If the concentration does exceed
allowable limits, the Secretary must consult with the NRC to develop a plan for the
disposal of such waste. In any case, disposal also would be subject to a state-approved
closure plan and state permit authorized under other law.
The performance objectives for Class C waste require “reasonable assurances” that
concentrations of radioactive materials that may be released into the environment do not
result in human exposure to specific levels of radiation. The ability of the grout to
accomplish this objective would depend primarily on the extent to which it mixes with
the residual waste to prevent leaks from the tank. However, even if a tank leaks, the
performance objectives could still be met if the radioactivity decays to allowable levels
before contamination migrates and results in human exposure. The objectives also require
that protection of individuals from inadvertent intrusion be ensured after institutional
controls are removed. Sealing the tanks with a cement grout could provide a barrier to
intrusion, and institutional control of the grouted tanks, presumably would continue as
long as the Savannah River site and the INL remain federal facilities. Although grouting
of the residual waste would be subject to state approval, the authority of states is limited
to the hazardous component of the waste.8 Thus, South Carolina and Idaho presumably
would not have the authority to prevent the grouting of a tank based solely on objections
to the radioactivity left in the tank, as long as Class C performance objectives are met.
In effect, Section 3116(a) authorizes DOE to grout the residual waste in tanks in
Idaho and South Carolina, if it consults with the NRC in making the determination that
the waste is not high-level and if it meets the performance objectives for disposing of
Class C waste. Section 3116(b) requires the NRC to monitor DOE’s implementation of
this authority, in coordination with Idaho and South Carolina. If the NRC determines that
DOE is not in compliance, it is directed to inform DOE, the state, and the congressional
committees with relevant jurisdiction. Section 3116(c) clarified that the waste
classification authority in subsection (a) would not apply to any material transported
outside of covered states, which are defined as Idaho and South Carolina in Section
3116(d). In effect, the law does not allow DOE to reclassify waste shipped out of South
Carolina or Idaho as “incidental to reprocessing” and to dispose of it as low-level waste
in other states.
Section 3116(e) addressed the effect of the entire section on other laws and
regulations and their application within Idaho and South Carolina. This provision stated
that the authority in Section 3116(a) shall not “impair, alter, or modify the full
implementation of any Federal Facility Agreement and Consent Order or other applicable
consent decree” for a DOE site. These documents specify federal and state requirements
applicable to waste disposal and cleanup, and establish legally binding time frames for
disposal and cleanup actions. Thus, it appears that Section 3116 leaves the existing
agreements for Savannah River and the INL intact, and would not permit DOE to leave
more waste in the tanks than previously agreed to. Other provisions in Section 3116(e)
7 10 C.F.R. Part 61, Subpart C.
8 There is court precedent regarding the lack of state authority to regulate radionuclides. For
example, see United States v. Commonwealth of Kentucky, 252 F.3d. 816 (6th Cir. 2001).
clarified that the authority in subsection (a) is binding only in Idaho and South Carolina
and that it does not override certain other statutes relevant to waste disposal.
Section 3116(f) clarified the availability of judicial review under the Administrative
Procedure Act (APA), for “any determination made by the Secretary or any other agency
action taken by the Secretary pursuant to this section,”and for any failure of the NRC to
carry out its monitoring and reporting responsibilities. Although Section 3116 does not
require public notice of actions taken pursuant to it, DOE may be required to provide
notice under other federal laws, such as the National Environmental Policy Act and the
APA. The disposal of the tank waste is also subject to a state-approved closure plan, the
preparation of which may provide opportunity for public notice under state law.
Waste Determinations
In implementing the authority in Section 3116, DOE must first determine what
portion of the tank waste is classified as other than high-level and is therefore not subject
to disposal in a geologic repository. In November 2006, DOE determined in consultation
with the NRC how much waste would be left in the tanks at the INL,9 but DOE has not
made such a determination at Savannah River, where the removal of the tank waste is not
as far along. However, in January 2006, DOE did determine the portion of the retrievable
waste at Savannah River that would be classified as other than high-level.10 This waste
would be solidified and disposed of in vaults on site rather than in a geologic repository.
Although the NRC concurred with DOE in issuing these waste determinations, the two
agencies have disagreed about their respective roles in making future determinations of
the tank waste that has yet to be classified for disposal.
National Academy of Sciences Study
To inform decisions to dispose of the tank waste, Section 3146 of P.L. 108-375
authorized DOE to arrange for the National Academy of Sciences (NAS) to study disposal
alternatives at Savannah River, the INL, and Hanford. The NAS released its final report11
in April 2006. The NAS concluded that DOE’s “overall approach” to remove most of
the waste from the tanks and to grout the residual waste in place is “workable.” However,
the NAS noted that “clear, definitive” answers to certain questions were not possible
because of insufficient information and technical, economic, and regulatory uncertainties,
such as the lack of explicit authority for grouting tank waste in Washington State. The
NAS acknowledged that using a cement grout is likely the most effective method
currently available to immobilize the waste left in the tanks after all retrievable waste is
removed, but noted that the long-term performance of the grout to safely contain the waste
left in the tanks is uncertain and necessitates further research. However, the ability to
reliably predict performance until all radioactivity decays to harmless levels appears
doubtful, likely leaving some uncertainty for a substantial period of time, despite efforts
to assess performance over the long-term.
9 71 Federal Register 68813.
10 71 Federal Register 3838.
11 National Academy of Sciences. Tank Waste Retrieval, Processing, and On-site Disposal at
Three Department of Energy Sites. April 2006.
The NAS also noted that many of the facilities to process the retrieved waste are not
constructed or have ongoing problems, and that the regulatory deadlines for tank closure
are years away, from 2016 to 2032. The NAS concluded that enough time likely remains
to explore ways to remove more of the waste from the tanks before closing them. The
NAS recommended that DOE delay the grouting of tanks with greater amounts of residual
waste to allow for the development of technologies to retrieve a larger portion of the
waste. Accordingly, the NAS recommended $50 million annually over 10 years for a
research program to develop more effective methods to remove the waste from the tanks
and to ensure the immobilization of residues left in them upon closure. The John Warner
National Defense Authorization Act for FY2007 (P.L. 109-364, H.R. 5122) authorized
$10 million for DOE to establish such a program, subject to appropriations.
Potential Implications for Environmental Cleanup
DOE estimates that the cleanup of the Savannah River site will be complete in 2025
at a cost of $32.1 billion, the INL in 2035 at a cost of $15.3 billion, and Hanford also in
2035 at a cost of $60.0 billion. The disposal of the tank waste at these sites is among the
greater challenges to completing cleanup, along with remediation of existing soil and
groundwater contamination. The authority in Section 3116 of P.L. 108-375 has
implications in terms of cost and pace of cleanup at both Savannah River and the INL.
Based on a 2002 assessment, DOE estimated that grouting residual tank waste at
Savannah River would cost between $3.8 million and $4.6 million per tank, compared
with a cost of greater than $100 million per tank to remove and dispose of all of the waste
and to clean and remove the tank.12 The per tank closure costs at the INL likely would be
lower because the tanks there contain less waste than those at Savannah River. DOE
continues to assess alternatives and costs for the disposal of the tank waste at Hanford
under other authorities, but a final decision has not been made.13
Grouting the tank waste also has implications in terms of environmental risk. If the
grout is effective in solidifying the residual waste and containing it safely, this disposal
method could provide a less costly and faster means of addressing risks. On the other
hand, the possibility of future leaks and resulting environmental contamination remains
if the grout does not mix thoroughly with the residual waste to solidify it completely, as
potentially affected states and environmental organizations have noted. Whether
contamination resulting from tank leaks could migrate and present a potential risk of
human exposure would depend on many factors, including the hydrological conditions of
the site and the effectiveness of any engineered or natural geologic barriers to migration.
If a grouted tank leaked and contamination resulted, the federal government would remain
liable for cleanup according to applicable federal and state requirements. Depending on
the extent of contamination, potential risk of human exposure, and remedial actions
selected to address such risk, the time and costs to clean up contamination from tank leaks
could offset the initial savings from grouting the residual waste.
12 DOE, Savannah River Site High-Level Waste Tank Closure Final Environmental Impact
Statement, DOE/EIS-0303, May 2002, p. S-21.
13 In February 2006, DOE issued a Notice of Intent to prepare a new Environmental Impact
Statement for tank closure and waste management at Hanford. (See 71 Federal Register 5655.)