Elr rad waste article werner

Copyright © 2002 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

9-2002 32 ELR 11059

ELR
NEWS & ANALYSIS
Toward Sustainable Radioactive Waste Control:
Successes and Failures From 1992 to 2002
by James D. Werner

Table of Contents B. U.S. Progress and Backsliding on Rio Principles
I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . 11059 and Agenda 21 Activities . . . . . . . . . . . . . . 11072
A. What Does Sustainability Mean for Radioactive 1. Management Activities. . . . . . . . . . . . . . 11073
Waste? . . . . . . . . . . . . . . . . . . . . . . . . . . . 11059 2. International Cooperation and
B. Are We Moving Toward or Away From Coordination . . . . . . . . . . . . . . . . . . . . . 11074
Sustainability?. . . . . . . . . . . . . . . . . . . . . . 11061 Principle 3—Intergenerational
C. Recommendations . . . . . . . . . . . . . . . . . . . 11061 Impacts. . . . . . . . . . . . . . . . . . . . . . . 11074
D. Chapter Overview . . . . . . . . . . . . . . . . . . . 11062 Principle 10—Openness and Public
II. A Radioactive Waste Primer . . . . . . . . . . . . 11062 Participation . . . . . . . . . . . . . . . . . . . 11075
A. Low-Level Waste . . . . . . . . . . . . . . . . . . . . 11062 Principle 13—Worker Compensation . . 11076
B. Mixed (Radioactive and Chemical) Waste . . 11063 Principle 15—Precautionary Principle,
C. High-Level Waste (Including Spent Nuclear Health Effects, and Hormesis . . . . . . . 11078
Fuel) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11063 Principle 16—Internalize Costs and Use
D. Transuranic Waste. . . . . . . . . . . . . . . . . . . 11065 “Polluter-Pays” Principle . . . . . . . . . . 11078
III. Summary of the Past 10 Years in Radioactive V. U.S. Sustainability Progress and Backsliding for
Waste Control . . . . . . . . . . . . . . . . . . . . . . . 11065 Various Types of Radioactive Waste. . . . . . . 11079
A. Nuclear Waste Assumptions Are Changed by A. High-Level Waste and Spent Nuclear Fuel. . 11079
the End of the Cold War . . . . . . . . . . . . . . 11065 B. Transuranic (Plutonium) Waste. . . . . . . . . . 11081
B. Commercial Nuclear Waste Eclipsed by Nuclear C. Low-Level Waste . . . . . . . . . . . . . . . . . . . . 11082
Weapons Facilities’ Waste . . . . . . . . . . . . . 11070 D. Mixed (Hazardous and Chemical) Waste . . . 11085
IV. Measuring Progress Toward E. Environmental Restoration of Contaminated
Sustainability . . . . . . . . . . . . . . . . . . . . . . . . 11071 Facilities . . . . . . . . . . . . . . . . . . . . . . . . . 11085
A. Radioactive Waste Control in the Rio Declaration VI. Recommendations . . . . . . . . . . . . . . . . . . . 11086
and Agenda 21 . . . . . . . . . . . . . . . . . . . . . 11072 A. Use Existing Institutions, Laws, and Science
More Effectively . . . . . . . . . . . . . . . . . . . . 11086
B. Reform or Develop New Institutional
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 Mechanisms . . . . . . . . . . . . . . . . . . . . . . . 11087
Senior Policy Advisory for the state of Missouri Department of Natural C. Establish a Trust Fund for Long-Term
Resources. He served previously as Director of Strategic Planning and Stewardship . . . . . . . . . . . . . . . . . . . . . . . 11087
Analysis, and of Long-Term Stewardship for the U.S. Department of En-
ergy’s (DOE’s) Environmental Management program from 1993-2001.
D. Improve Scientific, Technical, and Institutional
Previously, he was a Senior Environmental Engineer at the Natural Re- Basis for Radioactive Waste Management . . 11088
sources Defense Council (NRDC) (1989-1993), a Senior Environmental E. Explicitly Connect Nuclear Waste Management
Engineer and Senior Associate at ICF Technology, a private consulting With Nonproliferation Issues as Well as
firm (1984-1989), as well as a staff analyst for the Environmental Law In-
stitute (ELI) (1982-1984) and the Port Authority of New York/New Jersey
Environmental and Safety Issues. . . . . . . . . 11088
(1982). He earned a Master of Science degree in environmental engineer- F. Openness and Democracy . . . . . . . . . . . . . 11089
ing from the Johns Hopkins University and a Bachelor of Arts degree from VII. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . 11089
the University of Delaware. He is grateful to Robert DelTredici, Don Han-
cock, Daniel Hirsch, and Richard Miller for their contributions, and the sup-
port of his colleagues at DOE, NRDC, ICF, ELI, and the Port Authority. I. Introduction
[Editors’ Note: In June 1992, at the United Nations Conference on En-
vironment and Development (UNCED) in Rio de Janeiro, the nations of A. What Does Sustainability Mean for Radioactive Waste?
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 Devel-
Using a primitive nuclear reactor, named “Chicago Pile #1,”
opment, these nations gathered in Johannesburg to review progress in the Enrico Fermi’s team achieved a controlled chain reaction
10-year period since UNCED and to identify steps that need to be taken inside a squash court under the spectator stands of Stagg
next. Prof. John C. Dernbach has edited a book that assesses progress that Field at the University of Chicago on December 2, 1942.1 In
the United States has made on sustainable development in the past 10 1992—a half century after the first controlled nuclear reac-
years and recommends next steps. The book, published by the Environ-
mental Law Institute in July 2002, is comprised of chapters on various
subjects by experts from around the country. This Article appears as a 1. See generally Richard Rhodes, The Making of the Atomic
chapter in that book. Further information on the book is available at Bomb (1986); Richard Wolfson, Nuclear Choices: A Citi-
www.eli.org or by calling 1-800-433-5120 or 202-939-3844.] zen’s Guide to Nuclear Technology 173 (rev. ed. 1993).

32 ELR 11060 ENVIRONMENTAL LAW REPORTER 9-2002
tion on earth—the Rio Summit found no consensus on the The meaning of “sustainability” in nuclear waste control
meaning of “sustainability” in nuclear waste control. Ten depends on whom you ask and how you define it. The 1987
years later, our technical understanding and regulatory ef- Brundtland Commission defined “sustainable develop-
forts have improved, even as the global situation raises new ment” as “development that meets the needs of the present
concerns. But, we are still far from a consensus on what a without compromising the ability of future generations to
sustainable approach to nuclear waste might mean. meet their own needs.”6 The 1992 Rio Summit invoked this
Sustainability in nuclear waste2 may, in fact, be an oxy- definition in developing sustainability principles and in
moron. Certainly, nuclear power is not “natural” to a greater drafting Agenda 21. By this definition, some would argue
degree than other human endeavors. Although uranium ex- that generating nuclear wastes that remain radioactive for
ists naturally in the earth’s crust, the fissioning of uranium in thousands of years cannot, ipso facto, be sustainable.7 Of
reactors produces an almost wholly man-made ele- course, all major sources of energy result in some waste and
ment—plutonium—that does not otherwise exist on earth,3 potential health effects, which must be minimized and bal-
and can produce a variety of unique environmental, health, anced against the benefits. Others argue that nuclear tech-
and security problems. On the other hand, nuclear technol- nology’s promise of “unlimited power” is sustainable if we
ogy provides one-fifth of U.S. electrical power and a variety recycle its waste into new nuclear fuel through “reprocess-
of medical and scientific benefits with less evident immedi- ing.”8 But, nuclear power’s promise has remained an unreal-
ate and direct health impacts than other energy sources, such ized dream, and the reprocessing technology used to “recy-
as coal. If we look for sustainability in the nuclear enter- cle” nuclear waste creates additional wastes, and its end
prise, not in its “naturalness,” but in the possibility of conse- product, refined plutonium, and creates multiple security
quences that are tolerable for the long run, then nuclear problems.9
power might compare well with other major energy sources. Other definitions of sustainable development include
A larger problem arises, however, from certain nuclear tech- three core elements: economic sustainability, environmen-
nologies that hold the threat of unparalleled destruction and tal sustainability, and social sustainability.10 The principles
calamity from nuclear explosions. In this way nuclear incorporated in the Rio Declaration encompass all three el-
power—if it involves reprocessing and recovery of fissile ements.11 A full analysis of the various principles and defi-
material, e.g., plutonium, may present fundamentally differ- nitions of sustainability is beyond the scope of this Article.
ent risks of a greater magnitude than other energy alterna- The second part of this Article, however, introduces sev-
tives. If reprocessing and recovery of fissile material can be
avoided, then the risks are more comparable to other human 6. World Commission on Environment and Development
(WCED), Our Common Future 43 (1987). Named for its chair,
endeavors that result in long-lived wastes. Norwegian Prime Minister Gro Harlem Brundtland, the WCED
Few other environmental issues evoke such bipolar acri- published the commission’s report, Our Common Future.
mony between advocates and opponents. While it is diffi- 7. John P. Holdren et al., The Meaning of Sustainability:
cult not to marvel at the modern alchemy of nuclear power,4 Biogeophysical Aspects, in Defining and Measuring
it is also difficult not to be humbled by its waste products Sustainability 3-17 (Mohan Munasinghe & Walter Shearer eds.,
1995). Holdren et al. concluded that, “[t]he remedy, of course, is to
that persist for hundreds, thousands, or millions of years.5 ascertain what level of harm is tolerable in exchange for the benefits
Much of the waste will remain radioactive and potentially of the activity that causes the harm, the cost-benefit approach that is
hazardous for longer than the experience of humans in man- applied to most pollutants.” Id. See also Robert L. Gallucci, The
Continuing Relevance of Nuclear Power to the Threat of
aging any endeavor, much less safeguarding a material that Nuclear Weapons Proliferation, Remarks Prepared for
no longer provides any benefit, but only the threat of harm. the Nuclear Control Institute’s 20th Anniversary Confer-
ence (2001), available at http://www.nci.org/conf/gallucci.htm.
2. “Waste” is used here to include spent nuclear fuel and radioactive 8. Richard Rhodes & Denis Beller, The Need for Nuclear Power, For-
byproduct (11e2) byproduct material as well as low-level, eign Aff., Jan./Feb. 2000, at 30-44; Richard Rhodes, Prepared Tes-
high-level, and transuranic (TRU) nuclear wastes. timony Before the Subcommittee on Energy and Environment,
3. Prior to this, the only known nuclear fission reaction on earth oc- Committee on Science, U.S. House of Representatives, July 25,
curred deep in a mountain of naturally enriched uranium near Oklo 2000; Sen. Pete V. Domenici, A New Nuclear Paradigm, In-
in the West African Gabon Republic. A Natural Fission Reactor, augural Symposium, Belfer Center for Science and Inter-
Sci. Am., July 1976, at 36; Alvin Weinberg Assessing the Oklo Phe- national Affairs (1997); Sen. Pete V. Domenici, A New Nu-
nomenon, 266 Nature 206 (1977). Of course, nuclear reactions oc- clear Paradigm: One Year of Progress (1998) (David J. Rose
cur in stars throughout the universe, which fill the night sky, but are Lecture, Massachusetts Institute of Technology, Cambridge,
no closer than 93 million miles away from earth. Massachusetts, Nov. 13, 1998); and Douglas S. McGregor, Re-
4. Ancient chemists, known as “alchemists,” sought to convert lead thinking Nuclear Power, 17 The New Am. 9 (2001), available at
and other common elements into gold. Only later did nuclear theory http://www.thenewamerican.com/tna/2001/04-23-2001/vo17no09_
recognize the “indivisibility” of elements composed of atoms, which nuclear.htm (last visited May 21, 2002). See also Nuclear Energy In-
by definition is an “irreducible constituent of a specified system.” stitute, Upfront, at http://www.nei.org (last visited Apr. 23, 2002).
The American Heritage Dictionary of the English Lan- 9. Matther Bunn, Enabling a Significant Future for Nuclear Power:
guage (1978). Paradoxically, this recognition of the conventional Avoiding Catastrophes, Developing New Technologies, Democra-
indivisibility of atoms led to the capability of sustained chain reac- tizing Decisions—And Staying Away From Separated Plutonium,
tion splitting of atom in reactors. in Proceedings of Global 1999: Nuclear Technol-
5. Former Enrico Fermi collaborator and Director of the Ridge Na- ogy—Bridging the Millenia (1999) (presented at a conference
tional Laboratory, Alvin Weinberg, wrote in an oft-quoted passage: held in Jackson Hole, Wyoming, August 30, 1999, to September 2,
1999, by the American Nuclear Society).
We nuclear people have made a Faustian bargain with society.
On one hand we offer in the breeder reactor an almost inexhaust- 10. Jonathan Harris, Basic Principles of Sustainable Develop-
ment (Tufts University Global Development and Environment In-
ible source of energy. But the price we demand of society for stitute, Working Paper No. 00-04, 2000); see also Global Develop-
this magical energy source is both a vigilance and a longevity of ment and Environment Institute, Welcome to G-Dae, at
our social institutions to which we are quite unaccustomed. http://ase.tufts.edu/gdae (last visited Apr. 23, 2002).
Alvin Weinberg, The Nuclear Imperatives, 14 Nuclear News 11. Rio Declaration on Environment and Development, U.N. Confer-
33-37 (1971); Alvin Weinberg, Social Institutions and Nuclear En- ence on Environment and Development, U.N. Doc. A/CONF.151/
ergy, 177 Science 27-34 (1972). 5/Rev. 1, 31 I.L.M. 874 (1992) [hereinafter Rio Declaration].

9-2002 NEWS & ANALYSIS 32 ELR 11061
eral relevant principles from the Rio Declaration and this issue, which is identified as a critical element of sustain-
Agenda 21, as well as the question of whether U.S. nuclear able development and nuclear waste.19 As concepts of sus-
waste management has become more or less consistent tainable development become codified in frameworks for
with these principles. governance, rather than merely philosophy, it is critical that
Paradoxically, some analysts have asserted that the rela- it include not just resource depletion issues, but also the na-
tively “low-tech” process of harvesting and using wood for tional security implications of development patterns.20
charcoal and other solid fuels, and the resulting soot12 pro- Nonetheless, sustainable nuclear waste control may, in the
duced in diesel emissions and from carbon dioxide made by long run, be an oxymoron.
fossil fuels have caused the largest global energy production
impacts on health and the environment.13 Debating the defi- B. Are We Moving Toward or Away From Sustainability?
nition of “sustainable development” in nuclear waste con-
trol could be endless. For now, the question of whether nu- In the 10 years since the first Earth Summit in Rio, the
clear waste management can be sustainable (or more sus- United States has taken a number of actions that have moved
tainable than the effluvia from other energy technologies) is us closer to sustainability in nuclear waste control if mea-
speculative and irresolvable. The current situation with sur- sured by the limited number of recommendations in Agenda
face storage of some nuclear waste and reprocessing of 21. Perhaps by design, these recommendations were very
spent nuclear fuel to produce weapons-usable material is consistent with U.S. plans and actions during the 1990s.21
clearly not sustainable. When measured against the broader principles embodied
In certain respects, radioactive contamination in air or in the Rio Declarations, however, the United States has
drinking water or soil may appear to be similar to a variety of fallen short of making significant progress toward
other pollutants.14 But, because some nuclear wastes, e.g., sustainability in radioactive waste controls. For example,
spent nuclear fuel, can be reprocessed or “recycled”15 to despite some initial progress, the U.S. decisionmaking pro-
produce plutonium and other fissile materials16 that can be cess for radioactive waste control has become considerably
used to produce nuclear weapons,17 the existence, much less more closed. Also, attempts to address worker safety and
the continued production, of these radioactive wastes in intergenerational impacts have reversed course despite
combination with reprocessing is not sustainable from a na- some progress in some areas.
tional security perspective, perhaps more than an environ-
mental perspective. Because of the extraordinary potential C. Recommendations
for nuclear materials to be used for weapons that threaten
peace and security,18 this Article pays special attention to Several recommendations are discussed in more detail in
Section VI. These include:
12. The technical term typically used is “particulates,” particularly
“PM10,” i.e., particulate matter with a median diameter less than or 1. Use Existing Institutions, Laws, and Science
equal to 10 microns, which results in greater potential health effects More Effectively. Before embarking on any initia-
due to increased respirability and ability to be inhaled and lodged in
the deep lung, including the aveoli. The term “soot” is more econom- tives to establish new radioactive waste control
ical and readily understood. programs, we should use existing mechanisms,
13. John P. Holdren & Kirk R. Smith, Energy, the Environment, and such as the National Environmental Policy Act
Health, in World Energy Assessment: Energy and the Chal- (NEPA),22 to the fullest extent possible.
lenge of Sustainability (2000). Holdren’s earlier paper on the 2. Reform or Develop New Institutional Mecha-
meaning of sustainability concluded that “[t]he remedy, of course, is
to ascertain what level of harm is tolerable in exchange for the bene- nisms. New post-Cold War challenges will likely
fits of the activity that causes the harm, the cost-benefit approach that require new institutions. For example, an opera-
is applied to most pollutants.” Holdren et al., supra note 7. tional line management organization, i.e., not
14. Some radioactive materials are, in fact, less harmful than many poi- solely a policy analysis group, will likely be re-
sons because when ingested orally (eaten or in drinking water), they quired to build and operate major new facilities
can quickly pass through the human body with little effect in some
cases (the author does not advise this at home or anywhere else). for plutonium disposition. Also, some new or-
However, when inhaled, nuclear material has a grave potential for ganization arrangement will likely be required
causing cancer or other health problems, especially when lodged in for long-term stewardship of facilities were resid-
alveoli in the deep lungs. Other radionuclides such as cesium-137 ual contamination and waste remain after cleanup
and iodine-128 can be selectively bound up into bone or thyroid tis-
sue, respectively, causing chronic problems, such as bone cancer or is completed.
thyroid disease. 3. Establish a Trust Fund for Long-Term Steward-
15. This term has been used by some reprocessing proponents to convey ship. Because of the extraordinarily long periods
an environmentally friendly image to a technology that was devel- required for post-cleanup stewardship of nuclear
oped and used for producing plutonium and other essential nuclear facilities, and the uncertainty about relying on the
materials for weapons.
annual appropriations process, a dedicated trust
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 19. Each of the other three elements—economic development, social
than a comparable amount of chemical explosive. development, and national governance that secures peace and de-
17. The purity of the Pu-239 extracted from nuclear power reactor fuel is velopment also have significant, albeit less unique nexus to nu-
not ideal, but nonetheless useable, for a nuclear warhead with a sig- clear technology.
nificant yield. The United States demonstrated such a device in the 20. John C. Dernbach, Sustainable Development as a Framework for
early 1960s. National Governance, 49 Case W. Res. L. Rev. 1, 85-90 (1998).
18. The U.N. Charter, which created the United Nations at the end of 21. See Section IV.B., infra, entitled U.S. Progress and Backsliding on
World War II, is specifically intended to achieve international peace Rio Principles and Agenda 21 Activities.
and security. See John C. Dernbach, Sustainable Development: Now
More Than Ever, 32 ELR 10003 (Jan. 2002). 22. 42 U.S.C. §§4321-4370d, ELR Stat. NEPA §§2-209.

fund and insulated organization will likely be re- what radionuclides are present, rather than how much radio-
quired to ensure sufficient resources are available activity is in it (although they are sometimes related).25
for the long periods required. The amount of each waste is generally indirectly related
4. Improve Scientific, Technical, and Institutional to its radioactivity level, i.e., the higher the inherent radioac-
Basis for Radioactive Waste Management. A more tivity level, the lower the volume of the waste (see Table
robust and publicly accepted basis for decisions 1).26 For example, although high-level waste and spent nu-
must be developed. This will require investments clear fuel comprise only a small portion of the volume of ra-
in credible science, and a deliberate effort to earn dioactive waste that has been buried or is being stored,27
improved credibility among government agencies. they represent more than 95% of the radioactivity in nu-
5. Explicitly Connect Nuclear Waste Management clear waste.28 The corollary is that nearly 90% (32 million
With Nonproliferation Issues as Well as Environ- cubic meters) of the total U.S. radioactive waste volume
mental and Safety Issues. The seamless connection is radioactive “byproduct”29 waste; whereas more than
between certain aspects of radioactive waste con- 90% of the radioactivity in U.S. radioactive waste is in
trol and nuclear weapons proliferation should be spent nuclear fuel and high-level waste from nuclear
acknowledged. The United States should support weapons production.30
changes in the International Atomic Energy Agency As of 1999, the United States generated and stored ap-
to separate the regulatory safety and safeguards proximately 16,000 cubic meters (m3) and 340,000 m3, re-
functions from the nuclear promotion activities. spectively, of high-level radioactive waste.31 Annually
6. Openness and Democracy. The current gap be- about 200,000 m3 of low-level and intermediate-level waste
tween government policies and public understand- and 10,000 m3 of high-level waste (as well as spent nuclear
ing and support should be bridged. Although more fuel destined for final disposal) is generated worldwide
openness and commitment to democratic decision- from nuclear power production. These volumes are increas-
making can help, serious questions remain about ing as more nuclear power units are taken into operation, nu-
whether the technical concerns about the security clear facilities are decommissioned, and the use of
of radioactive wastes and related nuclear opera- radionuclides increases.32
tions are compatible with open and democratic
decisionmaking processes. A. Low-Level Waste

D. Chapter Overview Low-level radioactive waste includes any radioactive waste
not classified as spent fuel, high-level waste, transuranic
After reviewing the changes in U.S. radioactive waste con-
trol in the decade since the Rio Summit, this Article re- 25. In contrast to the U.S. system, radioactive waste is categorized in
views some criteria derived from the 1992 Rio Declaration most countries, particularly European nations, according to the level
and Agenda 2123 that are useful for measuring progress on and type of radioactivity contained in it.
sustainability in radioactive waste control. These criteria are 26. This inventory of waste types is based largely on undecayed radioac-
then used to examine various types of radioactive wastes, to tivity levels, using available data. A more precise comparison of ra-
assess whether we have moved toward or away from a dioactivity would require calculating the relative decay of the vari-
ous radioisotopes in each waste type. Generally, however,
more sustainable society as a result of changes in our ap- long-lived isotopes, e.g., uranium and plutonium, emit less radioac-
proach to radioactive waste controls. Finally, several rec- tivity (per unit of time), and are disproportionately found in
ommendations flowing from this assessment are offered high-level byproduct and TRU wastes. Consequently, although the
average radioactivity for these waste types might have changed less
for consideration. than other waste types, e.g., low-level waste, they nonetheless con-
tain large amounts of mixed fission products, many of which decay
II. A Radioactive Waste Primer relatively rapidly.
27. The volume of spent nuclear fuel is largely a theoretical data point
Essential to any discussion of radioactive waste is a clear because it must be stored with ample separation between fuel rods to
avoid a criticality (spontaneous chain reaction). Nonetheless the vol-
understanding of how various types of wastes are defined.24 ume of spent nuclear fuel (commercial and DOE-owned spent nu-
In the United States, legal definitions of radioactive waste clear fuel are approximately 10,000 and 1,000 m3, respectively) is
types are generally based on where the waste came from and 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 Radioac-
tive Waste Inventories, Projections, and Characteristics
23. U.N. Conference on Environment and Development (UNCED), 0-11 (1997) (DOE/RW-0006. Rev. 13).
Agenda 21, U.N. Doc. A/CONF.151.26 (1992), available at
http://www.un.org/esa/sustdev/agenda21chapter28.htm [hereinaf- 28. U.S. DOE, Summary Data on the Radioactive Waste, Spent
ter Agenda 21]. Nuclear Fuel, and Contaminated Media Managed by the
U.S. Department of Energy 2-3 (2001) (ORNL/DWG
24. U.S. DOE, Closing the Circle on the Splitting of the Atom: 95-8849R3) [hereinafter U.S. DOE, Summary Data on the
The Environmental Legacy of Nuclear Weapons Produc- Radioactive Waste, Spent Nuclear Fuel, and Contami-
tion in the United States and What the Department of En- nated Media].
ergy Is Doing About It (1995 & 1996) (DOE/EM-0266); U.S. 29. Also known as “11e2” waste, which is the relevant section of the
DOE, Linking Legacies: Connecting the Cold War Nu- Atomic Energy Act. See 42 U.S.C. §2014(e)(2).
clear Weapons Production Processes to Their Environ- 30. U.S. DOE, Summary Data on the Radioactive Waste, Spent
mental Consequences (1997) (DOE/EM-0319) [hereinafter Nuclear Fuel, and Contaminated Media, supra note 28.
Linking Legacies]. For an accessible summary of nuclear waste
definitions and issues, see Susan Wiltshire, League of Women 31. Id. at 4-1.
Voters Education Fund, The Nuclear Waste Handbook: A 32. Agenda 21, supra note 23, ¶ 22.1 (paragraph within Chapter 22
Handbook for Citizens (1993). Despite being several years old, it on Safe and Environmentally Sound Management of Radioac-
is not substantially out of date. tive Wastes).

waste, or byproduct material such as uranium mill tailings.33 States generated and stored approximately 3,000 m3 and
It is commonly regarded as containing relatively low levels 44,000 m3, respectively, of mixed low-level radioactive
of radioactivity, but it can also include relatively high levels waste.41
of radioactivity and typically includes radionuclides34 that The definition and regulation of mixed waste remains a
are as long-lived as those found in high-level waste. Al- bizarre mix of legal authorities. The hazardous component
though low-level wastes are generally less radioactive than of mixed waste is subject to RCRA regulation. But, the in-
high-level wastes, some types of low-level waste can be termingled radioactive constituents are subject only to
more radioactive than some types of high-level waste.35 Atomic Energy Act42 control, not RCRA.43 In terms of the
Nongovernmental organizations (NGOs) have long rec- radioactive portion of mixed wastes, source, special nu-
ommended changes to this radioactive waste classification clear, and byproduct material are explicitly excluded from
scheme,36 but no serious legislative efforts have been the definition of “solid waste” under RCRA, and thereby ex-
made.37 Recently, however, a U.S. Department of Energy empted from regulation under RCRA.44
(DOE) report recommended changes in this scheme of
waste definition, though DOE has not proposed any specific C. High-Level Waste (Including Spent Nuclear Fuel)
legislation, and the reference appears to be more rhetori-
cal—to shirk “burdensome regulatory requirements”—than High-level waste45 includes (1) the liquid waste resulting
a serious policy proposal.38 from reprocessing spent nuclear fuel, and (2) spent nuclear
fuel, if that spent fuel is not expected to be reprocessed.46 In
B. Mixed (Radioactive and Chemical) Waste the world of civilian nuclear waste, the terms “nuclear
waste,” “high-level waste” and “spent nuclear fuel” are vir-
“Mixed waste” includes both radioactive constituents and tually synonymous. DOE, however, fastidiously avoids re-
hazardous chemicals that are regulated by the Resource ferring to spent nuclear fuel as “waste” largely to preserve
Conservation and Recovery Act (RCRA).39 The term gener- the option of using it as a “resource” by reprocessing it to re-
ally refers to low-level mixed wastes, but could also include cover plutonium.47 In common parlance—including na-
other radioactive waste forms. In fact, transuranic waste and
high-level waste are generally mixed. The regulatory restrictions for the WIPP site in 1996. Waste Isolation Pilot Plant
Land Withdrawal Act of 1992, Pub. L. No. 102-579, 106 Stat. 4777,
schemes for transuranic waste and high-level waste are prin- as amended by the National Defense Authorization Act for Fiscal
cipally oriented to the radioactive constituents, such as plu- Year 1997, Pub. L. No. 104-201, §§3187-88 (1996).
tonium and other fission products.40 As of 1999, the United 41. U.S. DOE, Summary Data on the Radioactive Waste, Spent
Nuclear Fuel, and Contaminated Media, supra note 28, at
33. 42 U.S.C. §2021; 10 C.F.R. pts. 61-62. 8-1.
34. E.g., plutonium in concentrations less than 100 nCi/gram. 42. 42 U.S.C. §§2011-2286i, 2296a-2296h-13 (including Price-Ander-
35. This contrasts with the use of the term in most other countries where son Act).
radioactive waste categories are defined according to the level or 43. See 10 C.F.R. §962.
longevity of radioactivity, rather than its source. See generally B.G.
Meager & L.T. Cole, National Low-Level Radioactive 44. 42 U.S.C. §6903(27), ELR Stat. RCRA §1004(27). The regulation
Waste Management Program, Comparison of Low-Level of mixed waste has a tortured history that largely preceded the Rio
Waste Disposal Programs of DOE and Selected Interna- Summit. See generally David P. O’Very, Regulation of Radioactive
tional Countries 236 (1996); Scott Saleska, Low-Level Radioac- Pollution, in Controlling the Atom in the 21st Century (Da-
tive Waste: Gamma Rays in the Garbage, Bull. of Atomic Scien- vid P. O’Very et al. eds., 1994); Barbara A. Finamore, Regulating
tists, Apr. 1990, at 19-25; Arjun Makhijani & Scott Saleska, Hazardous and Mixed Waste at Department of Energy Nuclear
Institute for Energy and Environmental Research Weapons Facilities: Reversing Decades of Environmental Neglect,
High-Level Dollars, Low-Level Sense (1992). The term “in- 9 Harv. Envtl. L. Rev. 83 (1985); and Terrence R. Fehner & F.G.
termediate waste” is typically used in many other countries to refer Gosling, Coming in From the Cold: Regulating U.S. Department of
to what is generally referred to as TRU waste in the United States, Energy Nuclear Facilities, 1942-1996, 1 Envtl. Hist. 5 (1996).
but also includes some low-level waste, i.e., Class B and C low- 45. Generally, liquid high-level waste includes the first and second cy-
level waste. cle raffinate, i.e., nitric or other acid combined with the tributyl phos-
36. 42 U.S.C. §10101 (16); 10 C.F.R. §61.2. See generally Makhijani phate or other solvents, used for initial extraction of the plutonium of
& Saleska, supra note 35. other nuclear materials, which includes most of the mixed fissions
products, e.g., strontium-90, cesium-137, technetium-99, initially
37. This inaction reflects a stalemate among opposing sides that would part of the spent fuel and target being reprocessed. It also includes
like to see the existing U.S. waste definitions and classification sys- the solids, such as crusts, salt cake, and other nonliquid materials that
tem change so that it is more similar to European classification sys- subsequently form in storage tanks.
tems. For example, environmentalists might prefer low-level waste
to be defined in a way that reflects the hazard and level of radioactiv- 46. More precisely, high-level waste is defined statutorily by the Nu-
ity. Nuclear industry officials might like the definition of high-level clear Waste Policy Act as “the highly radioactive material resulting
waste to be changed to allow for certain wastes to be excluded from a from the reprocessing of spent nuclear fuel, including liquid waste
repository to make disposal easier, quicker, and cheaper. Both sides, produced directly in reprocessing and any solid material derived
however, fear the unpredictable outcome of opening up the legisla- from such liquid waste that contains fission products in sufficient
tion to amendment. concentrations,” and “other highly radioactive material that the
[Nuclear Regulatory] Commission, consistent with existing law,
38. U.S. DOE, Top-to-Bottom Review Team, A Review of the determines by rule requires permanent isolation.” 42 U.S.C.
Environmental Management Program (2002). The intent of §10101(12)(A). The Nuclear Regulatory Commission (NRC) has
this recommendation, however, appears to emphasize the potential defined high-level waste by regulation to also include “irradiated
for reducing financial costs more than increasing public health (spent) reactor fuel (not intended for reprocessing)” and solidified
protections. Also, DOE has failed to develop or seek any political high-level waste. 10 C.F.R. pt. 60. The term “reprocessing” gener-
consensus or coalition that would be necessary for enactment of stat- ally refers to aqueous plutonium uranium extraction (PUREX)
utory changes in waste category definitions. technologies, but could also include electrometallurgical or
39. 40 C.F.R §261; see also 42 U.S.C. §§6901-6992k, ELR Stat. “pyro” processing.
RCRA §§1001-11011. 47. If spent fuel is not intended for reprocessing, it is defined as
40. In fact, despite the fact that most TRU waste contains hazardous high-level waste. DOE continues to distinguish spent fuel from other
chemical constituents that would otherwise be subject to RCRA reg- high level waste forms, e.g., raffinnate resulting from reprocessing
ulations, Congress further exempted DOE from RCRA land disposal spent fuel, despite DOE’s 1992 decision to phase out reprocessing,

tional news media coverage—high-level waste refers to though not widely pursued, some components of high-level
spent nuclear fuel, especially the spent fuel stored at com- waste could be extracted to produce weapons material.52
mercial nuclear power plants. In common parlance, when As noted above, there has been little attempt to redefine
the national news media mentions nuclear waste, they are nuclear waste in terms of its risks and radioactivity, instead
referring to high-level waste, which is generally spent nu- of its origin, except for persistent concerns raised by a lim-
clear fuel, especially the spent fuel stored at commercial nu- ited number of sophisticated nongovernmental analyses.
clear power plants. The definition of high-level waste and The prospect of a statutory change, however, was raised in
spent nuclear fuel is more critically important because of its an early 2002 DOE report that complained, “waste are man-
potential implications for proliferation of nuclear weapons aged according to their origins, not their risks.” This con-
materials, and because of recent attempts to change the defi- cern followed more than a decade of quiet effort by DOE to
nition without legislation. semantically detoxify large amounts of high-level waste
Although high-level waste and spent nuclear fuel com- from reprocessing by creating a wholly new category of
prise only a small portion of the volume of radioactive waste waste, called “Waste Incidental to Reprocessing.”53 DOE
that has been buried or is being stored,48 they represent more made this effort explicit by its proposal, as one of its “top
than 95% of the radioactivity in nuclear waste, and are gen- priorities,” to “[e]liminate the need to process . . . 75 percent
erally more long-lived than low-level wastes.49 Conse- . . . of high level waste.”54 In this way, DOE portrayed the ef-
quently, these waste are considered to have the most signifi- fort as an attempt to improve efficiency. But, improving effi-
cant potential long-term environmental impacts.50 ciency requires doing more with less, or, at a minimum, do-
Through the use of various reprocessing technologies, ing the same work at lower cost. DOE proposal involves do-
spent nuclear fuel can be used to produce nuclear weapons ing less with less, which requires no management break-
materials, by extracting from it the plutonium that would through. DOE’s redefinition of high-level waste to reduce
otherwise be “locked up” in the mixed fissions products costs is made easier by the fact that DOE enjoys self-regula-
from the nuclear reactor. Consequently, the question of tion of its high-level waste interim storage and treatment.
whether spent nuclear fuel is considered a radioactive Moreover, DOE’s “incidental” waste scheme could not only
“waste” and how it is managed has potentially significant result in less environmental protection for an important cat-
nuclear nonproliferation implications. Also, high-level egory of waste, but could further institutionalize DOE’s
waste is a critical tool for detecting and preventing nuclear self-regulation and facilitate further reprocessing by reduc-
weapons proliferation because it can be analyzed to deter- ing the costs for the resulting wastes. Not incidentally, by re-
mine whether it has resulted from weapons grade plutonium ducing the costs for managing high-level wastes, DOE
extraction, or reactor grade plutonium extraction.51 Al- 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
and the subsequent decommissioning of all U.S. reprocessing facili-
ties except at one site (the Savannah River Site in South Carolina), As long as it remains unacknowledged, the conflict be-
thereby making reprocessing of nearly 90% of DOE-owned spent tween nonproliferation and nuclear safety is one that will
nuclear fuel virtually impossible, without potentially dangerous in- only grow in intensity. If nuclear technology continues to
terstate transportation of spent fuel. The reasons for DOE’s irrational
distinction include: (1) bureaucratic inertia; (2) a desire to elude in-
dependent external regulation, which might apply if it were declared 52. In particular, neptunium-237 and americium-241 can be extracted
a “waste”; and, fundamentally, (3) a hope by some in DOE (contrary from liquid high-level waste to produce weapons-usable material.
to all objective evidence) that the spent fuel might someday be repro- New Generation of Nuclear Weapons From Nuclear Waste, Jane’s
cessed because it represents a valuable nuclear material asset for Defence Wkly., Mar. 31, 1999 (quoting David Albright). David
weapons or energy, and should not be discarded as a “waste.” Albright & Lauren Barbour, Troubles Tomorrow? Separated Neptu-
Ironically, this view is shared by DOE’s former nemesis in Russia’s nium 237 and Americium, in The Challenges of Fissile Mate-
“Minatom” nuclear agency. rial Control (David Albright & Kevin O’Neill eds., 1999); Linda
Rothstein, Explosive Secrets, Bull. of Atomic Scientists,
48. The volume of spent nuclear fuel is largely a theoretical data point Mar./Apr. 1999, available at http://www.thebulletin.org/issues/
because it must be stored with ample separation between fuel rods to 1999/ma99/ma99bulletins.html#anchor1217541 (last visited June
avoid a criticality (spontaneous chain reaction). Nonetheless the vol- 3, 2002).
ume of spent nuclear fuel (commercial and DOE-owned spent nu- 53. See DOE Order 435.1; 64 Fed. Reg. 29393 (July 14, 1999).
clear fuel are approximately 10,000 and 1,000 m3, respectively) is
roughly 1% of the amount of low-level waste (commercial and 54. See Memorandum from Jessie Hill Roberson, Assistant Secretary
DOE-disposed/stored is more than 1 million m3. See U.S. DOE, In- for Environmental Management, U.S. DOE, to Director, Office of
tegrated Database—1996, supra note 27. Management, Budget and Evaluation, Chief Financial Office (Nov.
2001).
49. U.S. DOE, Summary Data on the Radioactive Waste, Spent 55. Natural Resources Defense Council v. Abraham, No. CV-01-
Nuclear Fuel, and Contaminated Media, supra note 28, at 413-S-BLW, (D. Idaho), on remand Natural Resources Defense
2-3. Council v. Abraham, 244 F.3d 742, 31 ELR 20547 (9th Cir. 2001).
50. All things being equal, risk is proportional to radioactivity. All This straight-forward lawsuit seeking to compel DOE to abide by the
things however are not equal, and one must be careful about mak- Nuclear Waste Policy Act could have far-reaching implications.
ing this generalization using the basic definition of risk as product First, it could halt DOE’s current regime of capping high-level waste
of probability and consequence. Probability of exposure to in place after using only readily available late 20th century tank
low-level waste may be greater because workers are more likely waste removal technology, and could require investments in a sub-
to being exposed to low-level than high-level waste because of stantial long-term science and technology program focused on
the more common occurrence of, and reduced safety standards high-level waste in tanks. This would require reversing DOE’s re-
applicable, to low-level waste. In addition, the practice of shal- cent actions, which have essentially eviscerated the DOE environ-
low land burial of low-level waste could result in more frequent in- mental science and technology program. In 2002, DOE cut in half its
advertent exhumation. environmental science and technology program and appointed a new
director of the program with no experience in science and technol-
51. John Carlson et al., Australian Safeguards Office, Can- ogy or research and development. Second, it could force DOE to in-
berra ACT, Plutonium Isotopics—Non-Proliferation and ternalize the costs of its reprocessing operations, which generate ad-
Safeguards Issues (1998) (IAEA-SM-351/64). ditional high-level wastes.

be used for power, research and testing is to continue, then at least two areas. First, large quantities of transuranic waste
the full life-cycle implications must be considered and are buried, and DOE has not yet decided whether this waste
openly debated. The United States has provided some sup- will be exhumed for disposal in the dedicated deep geologic
port for replacing nuclear fuels with comparable non- repository being operated for transuranic waste disposal
weapons usable fuel technology,56 but it continues to sup- known as the Waste Isolation Pilot Plant (WIPP). This deci-
port use of weapons-grade uranium in domestic research sion is currently being made piecemeal on a site-by-site ba-
programs,57 leading to a “do as we say, not as we do” per- sis for each cleanup decision. Second, surplus plutonium
ception by other countries. This is not a sustainable ap- scrap material is being considered for direct WIPP disposal
proach to the challenge. rather than being processed for potential use in nuclear reac-
tors as mixed oxide fuel or solidified with liquid high-level
D. Transuranic Waste waste for disposal in another deep geologic repository. If it
is declared a “waste” it is more likely to be disposed of in
Transuranic waste generally includes waste contaminated WIPP, rather than the other options.
with plutonium.58 Because commercial nuclear power oper-
ations do not involve extracting plutonium from spent fuel, III. Summary of the Past 10 Years in Radioactive
virtually all of the transuranic waste in the United States is Waste Control
associated with nuclear weapons production.59 The U.S.
“transuranic” waste category overlaps significantly with The world of radioactive waste has changed fundamentally
waste defined as “intermediate” level waste in other coun- since 1992. The most profound changes resulted from the
tries. As of 1999, the U.S. stored approximately 171,000 m3 end of the Cold War and the changing scope of nuclear
of transuranic radioactive waste and has approximately waste. An example of such change is the rethinking in the
169,000 m3 of buried transuranic waste.60 United States of plutonium as a liability and a waste instead
The definition of what is and is not a transuranic waste of a valuable resource for nuclear weapons, or as in some
was an issue in the late 1980s when DOE unsuccessfully countries, as an asset for energy production. Some changes
sought to evade regulation of its plutonium waste by assert- reflected evolving environmental regulation and manage-
ing that certain plutonium-contaminated material was not a ment.62 Clearly these have been major changes in radioac-
“waste,” but rather it was being stored for future reuse or re- tive waste management. But, it is not yet clear whether the
cycling to recover the residual plutonium.61 Other disputes net result has been to make society more or less sustainable.
are likely to arise about the definition of transuranic waste in
A. Nuclear Waste Assumptions Are Changed by the End of
56. The desirable and somewhat unique characteristic of high enriched the Cold War
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 Nuclear weapons and the threat of nuclear war cast a
used in skis and bicycles. The United States has sponsored a pro- shadow over the last half century that obscured many as-
gram—the Reduced Enrichment Research and Test Reactor Pro- pects of radioactive waste management. Consequently, the
gram—at the Argonne National Laboratory to replace the HEU fuels
with low enriched uranium (LEU), i.e., not weapons-usable, lifting of that shadow in the wake of the end of the Cold
high-density (HD) nuclear fuel, which provides comparable reactor War63 has helped bring many issues to light with unprece-
performance, and convince foreign countries to use these HD- dented clarity. Although the Cold War had ended just before
LEU fuels. The budget for this program, however, has been chroni- the 1992 Rio Summit,64 the implications of this change had
cally underfunded.
57. The location of these reactors is not given here for security reasons. It 62. Market pressure to reduce costs, forced the use of new technologies
is sufficient to indicate that they include many leading universities, and operating procedures to significantly reduce low-level waste
including some communities where local residents objected to final generation volume.
shipments of foreign spent fuel for the phase out program, but who
acceded to—or were silent about—continued and indefinite ship- 63. The popular view is that a nuclear explosion in a major city is less
ments of identical materials to and from local domestic reactors. likely after the end of the Cold War. Many analysts, however, be-
58. See 42 U.S.C. §4214ee. More precisely, TRU waste includes alpha lieve that the proliferation of fissile materials among parties less pre-
emitting wastes containing more than 100 nCi/gram of TRU iso- dictable than the former Soviet Union makes such a threat more
topes, i.e., isotopes with an atomic number larger than uranium, or likely. See Graham Allison, Fighting Terrorism: Could Worse Be
more than 92 on the periodic table of elements. An alpha is a sub- Yet to Come?, The Economist, Nov. 3, 2001, at 19.
atomic particle composed of two protons and two neutrons, indistin- 64. The fall of the Berlin Wall on November 9, 1989, is one marker for
guishable from a helium atom nucleus. the end of the Cold War. Another marker is the dissolution of the So-
59. The plutonium formed in a commercial nuclear power plant fuel viet Union on December 25, 1991. The end of the Cold War was
is imbedded in the spent fuel with other fission products and the identified as September 27, 1991, for purposes of determining
original uranium, and is regarded as “high-level waste.” Some worker and facility eligibility under the National Defense Authori-
TRU waste is generated in non-weapons research projects, but zation Act for Fiscal Year 1993. See Pub. L. No. 102-484, subtit. E,
they are typically small quantities and often involve rare, non- §3161, 106 Stat. 2315 (1992) (Department of Energy Defense Nu-
plutonium isotopes. clear Facilities; Work Force Restructuring Plan). The September 27,
1991, date is derived from President George H.W. Bush’s announce-
60. U.S. DOE, Summary Data on the Radioactive Waste, Spent ment to cease 24/7 nuclear armed bomber flights and to eliminate nu-
Nuclear Fuel, and Contaminated Media, supra note 28, at clear weapons from surface ships, which was followed on October 5,
5-3, 6-7. 1991, by Soviet Premier Mikhail Gorbachev reducing the number of
61. 734 F. Supp. 946, 20 ELR 21044 (D. Colo. 1990). Many of the pluto- Soviet nuclear missiles on alert. Hence, the Cold War ended less than
nium-contaminated waste drums had been stored for more than 10 a year before the Rio Summit. See Robert S. Norris, Nuclear Note-
years, and were not available for immediate reuse, as required by book, Bull. of Atomic Scientists, Jan. 1992, available at
RCRA’s recycling amendment. DOE was storing wastes subject to http://www.thebulletin.org/issues/1992/jf92/jf92.notebook.html
the RCRA Land Disposal Restrictions (LDR). These LDR wastes (last visited June 3, 2002). See also George H.W. Bush, Address to
cannot generally be stored for more than one year. 40 C.F.R. the Nation on Reducing United States and Soviet Nuclear Weap-
§268.50. RCRA also prohibits “speculative accumulation” of wastes ons, Sept. 27, 1991, at http://bushlibrary.tamu.edu/papers/1991/
under the guise of future recycling. Id. §261.2(c)(4). 91092704.html (last visited June 3, 2002).

not yet permeated the nuclear establishment and its physical nificant nuclear weapons development programs, and Saudi
infrastructure.65 But, in the years since the Rio Summit, an ex-patriot terrorist, Osama bin Laden, last residing in Af-
enormous rethinking of the role of nuclear technology and ghanistan, claimed to possess nuclear weapons.74 This en-
the management of radioactive waste has begun. largement of the global Nuclear Club contributed to signifi-
The collapse of the Soviet Union and the reduction of cant unease regarding nuclear issues. This unease contrib-
U.S. and Russian nuclear weapons arsenals66 have clearly uted to more than 170 countries attending the 1995
reduced some nuclear weapons dangers,67 but other nuclear Nonproliferation Treaty Review and Extension Conference
dangers increased. At the time of the Rio Summit in 1992, at the United Nations in New York75 and agreeing to extend
there were five openly acknowledged nuclear powers hav- the treaty indefinitely and without conditions.76 This treaty
ing a military nuclear weapons capability: United States, addressed the use of reprocessing of high-level radioactive
Russia, Great Britain, China, and France.68 Since, 1992, waste to produce plutonium by relying on safeguards moni-
however, the list of declared nuclear powers has nearly dou- tored by the U.N. International Atomic Energy Agency
bled to include India and Pakistan69 as well as Israel, who is (IAEA). Unfortunately, the IAEA has been found to be inca-
widely recognized as a nuclear weapons state,70 and South pable of aggressively monitoring aspiring nuclear states that
Africa71, which has dismantled its weapons. In addition, might reprocess high-level waste surreptitiously.77
Iraq72 and North Korea73 were found to have undertaken sig- Ten years after the end of the Cold War its full implica-
tions are still not fully appreciated. Among these implica-
65. One notable exception was then-Sen. Al Gore (D-Tenn.) who had al- tions are a variety of shifts in how nuclear waste and radio-
ready recognized some of opportunities from the end of the Cold
War and joined with Senate Armed Services Committee chair, Sam active contamination is managed. The complex and inter-
Nunn (D-Ga.), in early 1992 to launch the Strategic Environmental twined, yet rarely acknowledged, relationship between nu-
Research Defense Initiative (SERDP), which sought to make avail- clear waste and nuclear weapons is a critical issue that de-
able enormous defense assets, e.g., oceanographic data from subma-
rines and P-2 Orion surveillance aircraft, that could be used in envi- serves consideration in any discussion of radioactive waste
ronmental research. control and sustainable development. A few examples of
66. Although arms control agreements have reduced the active stock- this relationship in the United States are summarized here
piles and thousands of nuclear warheads have been dismantled, a regarding the changing definition of “radioactive waste,”
large inactive nuclear stockpile that is not covered in the agreements the potential use of radioactive waste for extracting nu-
remains, with the total U.S. stockpile at approximately 10,000 war-
heads. See Robert S. Norris, Nuclear Notebook: U.S. Nuclear clear weapons material, the availability of information
Forces, Bull. of Atomic Scientists, Mar./Apr. 2001, at 77. about radioactive waste and materials, the use of surplus
67. The hair trigger readiness of thousands of remaining operational nu- weapons materials for peaceful purposes, the use of radio-
clear missiles, however, remains a significant risk, particularly from active waste management funding to support weapons fa-
technical malfunction or miscalculation by U.S. or Russian personnel. cilities and activities.
68. In addition to the five declared nuclear powers, Israel, India, and The end of the Cold War rocked the foundations of what
South Africa were widely regarded as de facto nuclear powers. Israel
has long been widely suspected of possessing nuclear weapons, but we previously thought was a waste to be disposed of versus a
has never publicly confirmed it, despite a detailed book on the sub- valuable resource to be stockpiled. High-level radioactive
ject by Seymour Hersh, see Seymour Hersh, The Sampson Op- waste from nuclear power may be only a definition away
tion (1991), and other details disclosed by former Israeli technician from being a nuclear weapons material. For example, the
Mordechai Vanunu in 1986. Also, India had detonated a nuclear ex-
plosion in 1974, but referred to it officially as a “peaceful nuclear ex- nuclear industry oracle, the Nuclear Energy Institute, regu-
plosion.” After the Rio Summit, in 1993, South Africa revealed that larly asserts that “high-level ‘nuclear waste’ is really used
it had produced, and later dismantled nuclear weapons. nuclear fuel.”78 Some activists with the Nuclear Energy In-
69. John F. Burns, Indian Scientists Confirm They Detonated a Hydro- stitute and the American Nuclear Society used this semantic
gen Bomb, N.Y. Times, May 18, 1998, at A1; John F. Burns, Paki-
stan, Answering India, Carries Out Nuclear Tests; Clinton’s Appeal device to promote “recycling” of spent nuclear fuel from the
Rejected, N.Y. Times, May 29, 1998, at A1; M.V. Ramana & A.H. back end of the nuclear fuel cycle, via reprocessing, to ex-
Nayyar, India, Pakistan and the Bomb, Sci. Am., Dec. 2001, at 60, tract the plutonium and uranium for use in fresh fuel to be re-
available at http://www.sciam.com/2001/1201issue/1201ramana.
html (last visited Apr. 25, 2002).
turned to the “front end” to generate more power.79 Debating
70. Avner Cohen, Most Favored Nation, Bull. of Atomic Scientists, 74. Tim Weiner, A Nation Challenged: Al Qaeda; Bin Laden Has Nu-
Jan. 1995, at 44. clear Arms, N.Y. Times, Nov. 10, 2001, at B4.
71. David Albright, South Africa and the Affordable Bomb, Bull. of 75. Treaty on the Non-Proliferation of Nuclear Weapons, Mar. 5, 1970,
Atomic Scientists, July/Aug. 1994, at 37-47. art. IV, cl. 2, 21 U.S.T. at 489, T.I.A.S. No. 6839 at 6, 729 U.N.T.S.
72. Judith Miller & James Risen, Tracking Baghdad’s Arsenal: Inside The treaty was approved on May 11, 1995, to remain in force indefi-
the Arsenal: A Special Report: Defector Describes Iraq’s Atom nitely and without condition.
Bomb Push, N.Y. Times, Aug. 15, 1998, at A4; see also Letter from 76. See U.S. State Department, Treaty on the Non-Proliferation of Nu-
Hans Blix, Director-General of the IAEA, to Secretary General of clear Weapons, at http://www.state.gov/www/global/arms/treaties/
the United Nations (Oct. 6, 1997) (addressing Fourth Consolidated npt1.html (last visited Apr. 25, 2002); and United Nations, Treaty on
Report of the Director-General of the IAEA to the Secretary General, the Non-Proliferation of Nuclear Weapons, at http://www.un.org/
Under Paragraph 16 of U.N. Resolution 1051), available at Depts/dda/WMD/treaty/index.html (last visited Apr. 25, 2002).
http://www.iaea.org/worldatom/Programmes/ActionTeam/reports/
s_1997_779.pdf (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);
73. Victor Gilinsky, Nuclear Blackmail: The 1994 U.S.–Democratic Paul Leventhal, Plugging the Leaks in Nuclear Export Controls:
People’s Republic of Korea Agreed Framework on North Korea’s Why Bother?, Orbis, Spring 1992, at 177; and David Albright & K.
Nuclear Program, in Hoover Institution Essays in Public Pol- O’Neill, The Iraqi Maze: Searching for a Way Out, 8 Nonpro-
icy (1999); Remarks of Ambassador Robert Gallucci, at Carnegie liferation Rev. 1 (2001).
International Non-Proliferation Conference, on Proliferation Pros-
pects (Mar. 16, 2000); and Joseph Cirincione, Non-Proliferation 78. See Nuclear Energy Institute, High-Level “Nuclear Waste” Is
Project at the Carnegie Endowment for International Peace, The Really Used Nuclear Fuel, at http://www.nei.org/doc.asp?catnum
Asian Nuclear Chain Reaction, Foreign Pol’y, Spring 2000; Car- =2&catid=62 (last visited Apr. 25, 2002).
negie Endowment for International Peace (CEIP), Proliferation 79. This method of obtaining fresh fuel has never been found to be eco-
Brief, Vol. 3, No. 3 (Mar. 2, 2000). nomical, compared to the cost of newly mined and processed ura-

the definition of “waste” is not unique to radioactive regard excess plutonium as a waste and marginal energy re-
waste.80 For radioactive waste, however, this question has source, while Russia regards excess plutonium as a valuable
far-reaching national security and environmental implica- resource that should be used, and reused, for nuclear power
tions, and has undergone a profound historic shift during the fuel. Despite these different perspectives, the United States
last 10 years. The declaration of plutonium surpluses by the and Russia are both seeking to blend the plutonium into nu-
United States and Russia since 1992, have added to the al- clear fuel88 and “burn” it in nuclear power plants. Although
ready excessive stockpiles of plutonium.81 Even before this this is not the most economical method of generating nu-
dramatic expansion of plutonium surpluses, there was no clear power, it is being pursued, in part, because it will ren-
economic justification for defining spent nuclear fuel as der the plutonium unusable for weapons by “poisoning” it
anything other than a “waste.” Nonetheless, dreams of end- with fission products.89 The goal is to meet the “spent fuel
less plutonium supplies by reprocessing high-level radioac- standard,” which was a concept articulated in a seminal re-
tive waste continue to swim against the current of facts and port by the National Academy of Sciences to seek to make
logic. Although the United States has announced plans for a the plutonium from warheads as unavailable as the pluto-
permanent nuclear waste repository in Nevada, some offi- nium that is embedded in spent fuel from conventional nu-
cials argue that technologies involving reprocessing, not clear power plants.90 A parallel U.S. program to immobilize
contemplated in the Nuclear Waste Policy Act,82 may be plutonium in glass was initiated in 1996, but canceled in
preferable to disposal,83 despite the fact that these technolo- 2002 by the Bush Administration.91
gies would not obviate the need for a geologic repository.84 Unfortunately, all plutonium is not fully accounted for
Since the end of the Cold War, enormous stockpiles of and in secure storage ready for disposal as a waste. For de-
“special nuclear materials,” e.g., plutonium (Pu)-239 and cades, the United States and Russia provided nuclear mate-
uranium (U)-235,85 and other materials, e.g., depleted ura- rials as part of a Cold War technology support effort along
nium and lithium,86 materials that were painstakingly built with economic and other measures to exert geopolitical in-
up for nuclear weapons arsenals, have been rendered sur- fluence. Some of these radioactive material sources, which
plus, but not officially declared “waste.” The most well- are commonly regarded as radioactive “waste” after use,
known example is the case of disposing of 100 metric tons of can be used for crude ”dirty bombs” that cannot cause a nu-
surplus U.S. and Russian weapons-grade plutonium that clear explosion, but could disperse radioactivity. As a result
have been declared surplus.87 Generally, the U.S. policy is to of a 1984 Reagan Administration decision to end the track-
ing of plutonium sources, a significant number of “sealed
nium. In addition to the cost of recovering the plutonium and ura- sources” are unaccounted for after they were provided to
nium, the process produces a large amount of liquid high-level
waste, creates substantially more hazardous working conditions for foreign countries, including Columbia, Iran, Pakistan, the
operations technicians, and contributes to global nuclear prolifera- Philippines, and Vietnam.92 This problem of losing radioac-
tion problems by fostering a market in reprocessed plutonium and tive materials further demonstrates the fuzziness of defining
uranium. The recent process of blending down high enriched (weap- what constitutes radioactive “waste.” In addition, it reflects
ons-grade) uranium to low enriched (reactor-grade) uranium has
only exacerbated the economic problems of using reprocessing as a the lesser degree of control given to wastes compared to a
source of nuclear reactor fuel. See William C. Sailor, The Case fresh, new nuclear resource.93 The material may be techni-
Against Reprocessing, in F. for Applied Res. & Pub. Pol’y
(1999); Frank N. von Hippel, Plutonium and Reprocessing of Spent nium in the United States and the Former Soviet Union, 22 Ann.
Nuclear Fuel, 293 Science 2397-2398 (2001). Rev. of Energy & the Env’t 403-486 (1997).
80. See, e.g., the long-running debates about the regulatory definition of 88. Known as mixed oxide (MOX) fuel this blend of plutonium and ura-
“solid waste” under RCRA. 42 U.S.C. §6903, ELR Stat. RCRA nium can be used in conventional nuclear power reactors up to ap-
§1004, and 40 C.F.R. §261. See Aaron Goldberg, The Federal Haz- proximately one-third of the fuel charge.
ardous Waste Program: A House of Cards, Env’t Rep. (BNA), June
16, 1995. 89. “Fission products” are created by splitting uranium and plutonium
atoms in a nuclear reactors. Examples of fission products include ce-
81. In 1988, the Secretary of Energy said: “We’re awash in plutonium. sium, strontium, technecium, and americium.
We have more plutonium than we need.” John Herrington, Secre-
tary of Energy, Testimony Before the House Appropriations 90. National Academy of Sciences, Committee on Interna-
Subcomm. on Interior and Related Agencies (Feb. 23, 1988). tional Security and Arms Control, Management and Dis-
position of Excess Weapons Plutonium (1994): “We recom-
82. 42 U.S.C. §§10101-10270. mend . . . plutonium disposition options that result in a form from
83. Sen. Pete V. Domenici, A New Nuclear Paradigm, Inaugural Sym- which the plutonium would be as difficult to recover for weapons as
posium, Belfer Center for Science and International Affairs, Har- the lager and growing quantity of plutonium in commercial spent
vard University (Oct. 31, 1997); Lira Behrens, Domenci May Re- fuel. . . .” Id.
think Spent Fuel Disposal, Inside Energy, Nov. 10, 1997, at 1. 91. Matthew L. Wald, U.S. Settles on Plan to Recycle Plutonium, N.Y.
84. National Academy of Sciences, Interim Report of the Times, Jan. 23, 2002, at A15.
Panel on Separations Technology and Transmutations 92. Much of this unaccounted for plutonium is non-fissile Pu-238 rather
Systems (1992); National Academy of Sciences, Board on than the Pu-239 isotope used for nuclear warheads. See U.S. DOE,
Radioactive Wastes, Nuclear Wastes: Technologies for Office of Inspector General, Accounting for Sealed
Separations and Transmutation (1996). Sources of Nuclear Materials Provided to Foreign Coun-
85. See 42 U.S.C. §2014(aa). tries (2002) (DOE/IG-0456); Walter Pincus, Report Cites Unac-
counted Plutonium: Amounts Sufficient to Create “Dirty Bomb,”
86. U.S. DOE, Taking Stock: A Look at the Opportunities and Official Says, Wash. Post, Mar. 27, 2002, at A9. Also, DOE dis-
Challenges Posed by Inventories From the Cold War closed in 1997 that 80 grams of weapons-grade plutonium was inad-
Era—A Report of the Materials in Inventory Initiative vertently left behind during the chaotic withdrawal of forces from
(1996) (DOE/EM-0275) [hereinafter U.S. DOE, Taking Stock]. Vietnam in 1975. See U.S. DOE, Statement of Secretary Ha-
87. A full examination of the complex and evolving issue is beyond this zel O’Leary, Openness: The Way to Do Business, Press
Article. For background, see Arjun Makhijani & Annie Conference Fact Sheets (1997).
Makhijani, Fissile Materials in a Glass, Darkly (1995), 93. See U.S. DOE, Plutonium, the First Fifty Years; United
available at http://www.ieer.org/pubs/fissmats.html (last visited States Plutonium Production, Acquisition, and Utiliza-
Apr. 25, 2002); Howard Hu et al., Plutonium (1992); Matthew tion From 1944 Through 1994 (1996) (DOE/DP-0137). Appen-
Bunn & John P. Holdren, Managing Military Uranium and Pluto- dix B on plutonium waste details how plutonium that was disposed

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