ELR Rad Waste Article Werner

Toward Sustainable Radioactive Waste Control:
Successes and Failures From 1992 to 2002
by James D. Werner
Table of Contents
I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . 11059
A. What Does Sustainability Mean for Radioactive
Waste? . . . . . . . . . . . . . . . . . . . . . . . . . . . 11059
B. Are We Moving Toward or Away From
Sustainability?. . . . . . . . . . . . . . . . . . . . . . 11061
C. Recommendations . . . . . . . . . . . . . . . . . . . 11061
D. Chapter Overview. . . . . . . . . . . . . . . . . . . 11062
II. A Radioactive Waste Primer . . . . . . . . . . . . 11062
A. Low-Level Waste . . . . . . . . . . . . . . . . . . . . 11062
B. Mixed (Radioactive and Chemical) Waste . . 11063
C. High-Level Waste (Including Spent Nuclear
Fuel) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11063
D. Transuranic Waste. . . . . . . . . . . . . . . . . . . 11065
III. Summary of the Past 10 Years in Radioactive
Waste Control . . . . . . . . . . . . . . . . . . . . . . . 11065
A. Nuclear Waste Assumptions Are Changed by
the End of the Cold War . . . . . . . . . . . . . . 11065
B. Commercial Nuclear Waste Eclipsed by Nuclear
Weapons Facilities’ Waste . . . . . . . . . . . . . 11070
IV. Measuring Progress Toward
Sustainability. . . . . . . . . . . . . . . . . . . . . . . . 11071
A. Radioactive Waste Control in the Rio Declaration
and Agenda 21 . . . . . . . . . . . . . . . . . . . . . 11072
B. U.S. Progress and Backsliding on Rio Principles
and Agenda 21 Activities . . . . . . . . . . . . . . 11072
1. Management Activities. . . . . . . . . . . . . . 11073
2. International Cooperation and
Coordination . . . . . . . . . . . . . . . . . . . . . 11074
Principle 3—Intergenerational
Impacts. . . . . . . . . . . . . . . . . . . . . . . 11074
Principle 10—Openness and Public
Participation . . . . . . . . . . . . . . . . . . . 11075
Principle 13—Worker Compensation. . 11076
Principle 15—Precautionary Principle,
Health Effects, and Hormesis . . . . . . . 11078
Principle 16—Internalize Costs and Use
“Polluter-Pays” Principle . . . . . . . . . . 11078
V. U.S. Sustainability Progress and Backsliding for
Various Types of Radioactive Waste. . . . . . . 11079
A. High-Level Waste and Spent Nuclear Fuel. . 11079
B. Transuranic (Plutonium) Waste. . . . . . . . . . 11081
C. Low-Level Waste . . . . . . . . . . . . . . . . . . . . 11082
D. Mixed (Hazardous and Chemical) Waste. . . 11085
E. Environmental Restoration of Contaminated
Facilities . . . . . . . . . . . . . . . . . . . . . . . . . 11085
VI. Recommendations . . . . . . . . . . . . . . . . . . . 11086
A. Use Existing Institutions, Laws, and Science
More Effectively . . . . . . . . . . . . . . . . . . . . 11086
B. Reform or Develop New Institutional
Mechanisms . . . . . . . . . . . . . . . . . . . . . . . 11087
C. Establish a Trust Fund for Long-Term
Stewardship . . . . . . . . . . . . . . . . . . . . . . . 11087
D. Improve Scientific, Technical, and Institutional
Basis for Radioactive Waste Management . . 11088
E. Explicitly Connect Nuclear Waste Management
With Nonproliferation Issues as Well as
Environmental and Safety Issues. . . . . . . . . 11088
F. Openness and Democracy . . . . . . . . . . . . . 11089
VII. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . 11089
I. Introduction
A. What Does Sustainability Mean for Radioactive Waste?
Using a primitive nuclear reactor, named “Chicago Pile #1,”
Enrico Fermi’s team achieved a controlled chain reaction
inside a squash court under the spectator stands of Stagg
Field at the University of Chicago on December 2, 1942.1
In
1992—a half century after the first controlled nuclear reac-
Jim Werner is an engineer who directs the Reprocessing Policy Project in
Washington, D.C., through support by the Ploughshares Fund. He is also a
Senior Policy Advisory for the state of Missouri Department of Natural
Resources. He served previously as Director of Strategic Planning and
Analysis, and of Long-Term Stewardship for the U.S. Department of En-
ergy’s (DOE’s) Environmental Management program from 1993-2001.
Previously, he was a Senior Environmental Engineer at the Natural Re-
sources Defense Council (NRDC) (1989-1993), a Senior Environmental
Engineer and Senior Associate at ICF Technology, a private consulting
firm (1984-1989), as well as a staff analyst for the Environmental Law In-
stitute (ELI) (1982-1984) and the Port Authority of New York/New Jersey
(1982). He earned a Master of Science degree in environmental engineer-
ing from the Johns Hopkins University and a Bachelor of Arts degree from
the University of Delaware. He is grateful to Robert DelTredici, Don Han-
cock, Daniel Hirsch, and Richard Miller for their contributions, and the sup-
portof his colleagues at DOE, NRDC, ICF, ELI, and the Port Authority.
[Editors’ Note: In June 1992, at the United Nations Conference on En-
vironment and Development (UNCED) in Rio de Janeiro, the nations of
the world formally endorsed the concept of sustainable development and
agreed to a plan of action for achieving it. One of those nations was the
United States. In August 2002, at the World Summit on Sustainable Devel-
opment, these nations gathered in Johannesburg to review progress in the
10-year period since UNCED and to identify steps that need to be taken
next. Prof. John C. Dernbach has edited a book that assesses progress that
the United States has made on sustainable development in the past 10
years and recommends next steps. The book, published by the 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
chapter in that book. Further information on the book is available at
www.eli.org or by calling 1-800-433-5120 or 202-939-3844.]
1. See generally Richard Rhodes, The Making of the Atomic
Bomb (1986); Richard Wolfson, Nuclear Choices: A Citi-
zen’s Guide to Nuclear Technology 173 (rev. ed. 1993).
ELRNEWS&ANALYSIS
9-2002 32 ELR 11059
Copyright © 2002 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

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

eral relevant principles from the Rio Declaration and
Agenda 21, as well as the question of whether U.S. nuclear
waste management has become more or less consistent
with these principles.
Paradoxically, some analysts have asserted that the rela-
tively “low-tech” process of harvesting and using wood for
charcoal and other solid fuels, and the resulting soot12
pro-
duced in diesel emissions and from carbon dioxide made by
fossil fuels have caused the largest global energy production
impacts on health and the environment.13
Debating the defi-
nition of “sustainable development” in nuclear waste con-
trol could be endless. For now, the question of whether nu-
clear waste management can be sustainable (or more sus-
tainable than the effluvia from other energy technologies) is
speculative and irresolvable. The current situation with sur-
face storage of some nuclear waste and reprocessing of
spent nuclear fuel to produce weapons-usable material is
clearly not sustainable.
In certain respects, radioactive contamination in air or
drinking water or soil may appear to be similar to a variety of
other pollutants.14
But, because some nuclear wastes, e.g.,
spent nuclear fuel, can be reprocessed or “recycled”15
to
produce plutonium and other fissile materials16
that can be
used to produce nuclear weapons,17
the existence, much less
the continued production, of these radioactive wastes in
combination with reprocessing is not sustainable from a na-
tional security perspective, perhaps more than an environ-
mental perspective. Because of the extraordinary potential
for nuclear materials to be used for weapons that threaten
peace and security,18
this Article pays special attention to
this issue, which is identified as a critical element of sustain-
able development and nuclear waste.19
As concepts of sus-
tainable development become codified in frameworks for
governance, rather than merely philosophy, it is critical that
it include not just resource depletion issues, but also the na-
tional security implications of development patterns.20
Nonetheless, sustainable nuclear waste control may, in the
long run, be an oxymoron.
B. Are We Moving Toward or Away From Sustainability?
In the 10 years since the first Earth Summit in Rio, the
United States has taken a number of actions that have moved
us closer to sustainability in nuclear waste control if mea-
sured by the limited number of recommendations in Agenda
21. Perhaps by design, these recommendations were very
consistentwithU.S.plansandactionsduringthe1990s.21
When measured against the broader principles embodied
in the Rio Declarations, however, the United States has
fallen short of making significant progress toward
sustainability in radioactive waste controls. For example,
despite some initial progress, the U.S. decisionmaking pro-
cess for radioactive waste control has become considerably
more closed. Also, attempts to address worker safety and
intergenerational impacts have reversed course despite
some progress in some areas.
C. Recommendations
Several recommendations are discussed in more detail in
Section VI. These include:
1. Use Existing Institutions, Laws, and Science
More Effectively. Before embarking on any initia-
tives to establish new radioactive waste control
programs, we should use existing mechanisms,
such as the National Environmental Policy Act
(NEPA),22
to the fullest extent possible.
2. Reform or Develop New Institutional Mecha-
nisms. New post-Cold War challenges will likely
require new institutions. For example, an opera-
tional line management organization, i.e., not
solely a policy analysis group, will likely be re-
quired to build and operate major new facilities
for plutonium disposition. Also, some new or-
ganization arrangement will likely be required
for long-term stewardship of facilities were resid-
ual contamination and waste remain after cleanup
is completed.
3. Establish a Trust Fund for Long-Term Steward-
ship. Because of the extraordinarily long periods
required for post-cleanup stewardship of nuclear
facilities, and the uncertainty about relying on the
annual appropriations process, a dedicated trust
NEWS & ANALYSIS
9-2002 32 ELR 11061
12. The technical term typically used is “particulates,” particularly
“PM10,” i.e., particulate matter with a median diameter less than or
equal to 10 microns, which results in greater potential health effects
due to increased respirability and ability to be inhaled and lodged in
the deep lung, including the aveoli. The term “soot” is more econom-
ical and readily understood.
13. John P. Holdren & Kirk R. Smith, Energy, the Environment, and
Health, in World Energy Assessment: Energy and the Chal-
lenge of Sustainability (2000). Holdren’s earlier paper on the
meaning of sustainability concluded that “[t]he remedy, of course, is
to ascertain what level of harm is tolerable in exchange for the bene-
fits of the activity that causes the harm, the cost-benefit approach that
is applied to most pollutants.” Holdren et al., supra note 7.
14. Some radioactive materials are, in fact, less harmful than many poi-
sons because when ingested orally (eaten or in drinking water), they
can quickly pass through the human body with little effect in some
cases (the author does not advise this at home or anywhere else).
However, when inhaled, nuclear material has a grave potential for
causing cancer or other health problems, especially when lodged in
alveoli in the deep lungs. Other radionuclides such as cesium-137
and iodine-128 can be selectively bound up into bone or thyroid tis-
sue, respectively, causing chronic problems, such as bone cancer or
thyroid disease.
15. This term has been used by some reprocessing proponents to convey
an environmentally friendly image to a technology that was devel-
oped and used for producing plutonium and other essential nuclear
materials for weapons.
16. “Fissile” refers to the ability of a material, e.g., plutonium (Pu)-239
and uranium (U)-235, to undergo a nuclear chain reaction releasing
enormous amounts of energy at many orders of magnitude greater
than a comparable amount of chemical explosive.
17. The purity of the Pu-239 extracted from nuclear power reactor fuel is
not ideal, but nonetheless useable, for a nuclear warhead with a sig-
nificant yield. The United States demonstrated such a device in the
early 1960s.
18. The U.N. Charter, which created the United Nations at the end of
World War II, is specifically intended to achieve international peace
and security. See John C. Dernbach, Sustainable Development: Now
More Than Ever, 32 ELR 10003 (Jan. 2002).
19. Each of the other three elements—economic development, social
development, and national governance that secures peace and de-
velopment also have significant, albeit less unique nexus to nu-
clear technology.
20. John C. Dernbach, Sustainable Development as a Framework for
NationalGovernance,49 CaseW.Res.L.Rev. 1,85-90(1998).
21. See Section IV.B., infra, entitled U.S. Progress and Backsliding on
Rio Principles and Agenda 21 Activities.
22. 42 U.S.C. §§4321-4370d, ELR Stat. NEPA §§2-209.

fund and insulated organization will likely be re-
quired to ensure sufficient resources are available
for the long periods required.
4. Improve Scientific, Technical, and Institutional
Basis for Radioactive Waste Management. A more
robust and publicly accepted basis for decisions
must be developed. This will require investments
in credible science, and a deliberate effort to earn
improvedcredibilityamonggovernmentagencies.
5. Explicitly Connect Nuclear Waste Management
With Nonproliferation Issues as Well as Environ-
mental and Safety Issues. The seamless connection
between certain aspects of radioactive waste con-
trol and nuclear weapons proliferation should be
acknowledged. The United States should support
changes in the International Atomic Energy Agency
to separate the regulatory safety and safeguards
functions from the nuclear promotion activities.
6. Openness and Democracy. The current gap be-
tween government policies and public understand-
ing and support should be bridged. Although more
openness and commitment to democratic decision-
making can help, serious questions remain about
whether the technical concerns about the security
of radioactive wastes and related nuclear opera-
tions are compatible with open and democratic
decisionmaking processes.
D. Chapter Overview
After reviewing the changes in U.S. radioactive waste con-
trol in the decade since the Rio Summit, this Article re-
views some criteria derived from the 1992 Rio Declaration
and Agenda 2123
that are useful for measuring progress on
sustainability in radioactive waste control. These criteria are
then used to examine various types of radioactive wastes, to
assess whether we have moved toward or away from a
more sustainable society as a result of changes in our ap-
proach to radioactive waste controls. Finally, several rec-
ommendations flowing from this assessment are offered
for consideration.
II. A Radioactive Waste Primer
Essential to any discussion of radioactive waste is a clear
understanding of how various types of wastes are defined.24
In the United States, legal definitions of radioactive waste
types are generally based on where the waste came from and
what radionuclides are present, rather than how much radio-
activity is in it (although they are sometimes related).25
The amount of each waste is generally indirectly related
to its radioactivity level, i.e., the higher the inherent radioac-
tivity level, the lower the volume of the waste (see Table
1).26
For example, although high-level waste and spent nu-
clear fuel comprise only a small portion of the volume of ra-
dioactive waste that has been buried or is being stored,27
they represent more than 95% of the radioactivity in nu-
clear waste.28
The corollary is that nearly 90% (32 million
cubic meters) of the total U.S. radioactive waste volume
is radioactive “byproduct”29
waste; whereas more than
90% of the radioactivity in U.S. radioactive waste is in
spent nuclear fuel and high-level waste from nuclear
weapons production.30
As of 1999, the United States generated and stored ap-
proximately 16,000 cubic meters (m3
) and 340,000 m3
, re-
spectively, of high-level radioactive waste.31
Annually
about 200,000 m3
of low-level and intermediate-level waste
and 10,000 m3
of high-level waste (as well as spent nuclear
fuel destined for final disposal) is generated worldwide
from nuclear power production. These volumes are increas-
ing as more nuclear power units are taken into operation, nu-
clear facilities are decommissioned, and the use of
radionuclides increases.32
A. Low-Level Waste
Low-level radioactive waste includes any radioactive waste
not classified as spent fuel, high-level waste, transuranic
32 ELR 11062 9-2002
23. U.N. Conference on Environment and Development (UNCED),
Agenda 21, U.N. Doc. A/CONF.151.26 (1992), available at
http://www.un.org/esa/sustdev/agenda21chapter28.htm [hereinaf-
ter Agenda 21].
24. U.S. DOE, Closing the Circle on the Splitting of the Atom:
The Environmental Legacy of Nuclear Weapons Produc-
tion in the United States and What the Department of En-
ergy Is Doing About It (1995 & 1996) (DOE/EM-0266); U.S.
DOE, Linking Legacies: Connecting the Cold War Nu-
clear Weapons Production Processes to Their Environ-
mental Consequences (1997) (DOE/EM-0319) [hereinafter
Linking Legacies]. For an accessible summary of nuclear waste
definitions and issues, see Susan Wiltshire, League of Women
Voters Education Fund, The Nuclear Waste Handbook: A
Handbook for Citizens (1993). Despite being several years old, it
is not substantially out of date.
25. In contrast to the U.S. system, radioactive waste is categorized in
most countries, particularly European nations, according to the level
and type of radioactivity contained in it.
26. This inventory of waste types is based largely on undecayed radioac-
tivity levels, using available data. A more precise comparison of ra-
dioactivity would require calculating the relative decay of the vari-
ous radioisotopes in each waste type. Generally, however,
long-lived isotopes, e.g., uranium and plutonium, emit less radioac-
tivity (per unit of time), and are disproportionately found in
high-level byproduct and TRU wastes. Consequently, although the
average radioactivity for these waste types might have changed less
than other waste types, e.g., low-level waste, they nonetheless con-
tain large amounts of mixed fission products, many of which decay
relatively rapidly.
27. The volume of spent nuclear fuel is largely a theoretical data point
because it must be stored with ample separation between fuel rods to
avoid a criticality (spontaneous chain reaction). Nonetheless the vol-
ume of spent nuclear fuel (commercial and DOE-owned spent nu-
clear fuel are approximately 10,000 and 1,000 m3
, respectively) is
roughly 1% of the amount of low-level waste (commercial and
DOE-disposed/stored is more than 1 million m3
). See U.S. DOE,
Integrated Database—1996: U.S. Spent Fuel and Radioac-
tive Waste Inventories, Projections, and Characteristics
0-11 (1997) (DOE/RW-0006. Rev. 13).
28. U.S. DOE, Summary Data on the Radioactive Waste, Spent
Nuclear Fuel, and Contaminated Media Managed by the
U.S. Department of Energy 2-3 (2001) (ORNL/DWG
95-8849R3) [hereinafter U.S. DOE, Summary Data on the
Radioactive Waste, Spent Nuclear Fuel, and Contami-
nated Media].
29. Also known as “11e2” waste, which is the relevant section of the
Atomic Energy Act. See 42 U.S.C. §2014(e)(2).
Nuclear Fuel, and Contaminated Media, supra note 28.
31. Id. at 4-1.
32. Agenda 21, supra note 23, ¶ 22.1 (paragraph within Chapter 22
on Safe and Environmentally Sound Management of Radioac-
tive Wastes).

waste, or byproduct material such as uranium mill tailings.33
It is commonly regarded as containing relatively low levels
of radioactivity, but it can also include relatively high levels
of radioactivity and typically includes radionuclides34
that
are as long-lived as those found in high-level waste. Al-
though low-level wastes are generally less radioactive than
high-level wastes, some types of low-level waste can be
more radioactive than some types of high-level waste.35
Nongovernmental organizations (NGOs) have long rec-
ommended changes to this radioactive waste classification
scheme,36
but no serious legislative efforts have been
made.37
Recently, however, a U.S. Department of Energy
(DOE) report recommended changes in this scheme of
waste definition, though DOE has not proposed any specific
legislation, and the reference appears to be more rhetori-
cal—to shirk “burdensome regulatory requirements”—than
a serious policy proposal.38
B. Mixed (Radioactive and Chemical) Waste
“Mixed waste” includes both radioactive constituents and
hazardous chemicals that are regulated by the Resource
Conservation and Recovery Act (RCRA).39
The term gener-
ally refers to low-level mixed wastes, but could also include
other radioactive waste forms. In fact, transuranic waste and
high-level waste are generally mixed. The regulatory
schemes for transuranic waste and high-level waste are prin-
cipally oriented to the radioactive constituents, such as plu-
tonium and other fission products.40
As of 1999, the United
States generated and stored approximately 3,000 m3
and
44,000 m3
, respectively, of mixed low-level radioactive
waste.41
The definition and regulation of mixed waste remains a
bizarre mix of legal authorities. The hazardous component
of mixed waste is subject to RCRA regulation. But, the in-
termingled radioactive constituents are subject only to
Atomic Energy Act42
control, not RCRA.43
In terms of the
radioactive portion of mixed wastes, source, special nu-
clear, and byproduct material are explicitly excluded from
the definition of “solid waste” under RCRA, and thereby ex-
empted from regulation under RCRA.44
C. High-Level Waste (Including Spent Nuclear Fuel)
High-level waste45
includes (1) the liquid waste resulting
from reprocessing spent nuclear fuel, and (2) spent nuclear
fuel, if that spent fuel is not expected to be reprocessed.46
In
the world of civilian nuclear waste, the terms “nuclear
waste,” “high-level waste” and “spent nuclear fuel” are vir-
tually synonymous. DOE, however, fastidiously avoids re-
ferring to spent nuclear fuel as “waste” largely to preserve
the option of using it as a “resource” by reprocessing it to re-
cover plutonium.47
In common parlance—including na-
NEWS & ANALYSIS
9-2002 32 ELR 11063
33. 42 U.S.C. §2021; 10 C.F.R. pts. 61-62.
34. E.g., plutonium in concentrations less than 100 nCi/gram.
35. This contrasts with the use of the term in most other countries where
radioactive waste categories are defined according to the level or
longevity of radioactivity, rather than its source. See generally B.G.
Meager & L.T. Cole, National Low-Level Radioactive
Waste Management Program, Comparison of Low-Level
Waste Disposal Programs of DOE and Selected Interna-
tional Countries 236 (1996); Scott Saleska, Low-Level Radioac-
tive Waste: Gamma Rays in the Garbage, Bull. of Atomic Scien-
tists, Apr. 1990, at 19-25; Arjun Makhijani & Scott Saleska,
Institute for Energy and Environmental Research
High-Level Dollars, Low-Level Sense (1992). The term “in-
termediate waste” is typically used in many other countries to refer
to what is generally referred to as TRU waste in the United States,
but also includes some low-level waste, i.e., Class B and C low-
level waste.
36. 42 U.S.C. §10101 (16); 10 C.F.R. §61.2. See generally Makhijani
& Saleska, supra note 35.
37. This inaction reflects a stalemate among opposing sides that would
like to see the existing U.S. waste definitions and classification sys-
tem change so that it is more similar to European classification sys-
tems. For example, environmentalists might prefer low-level waste
to be defined in a way that reflects the hazard and level of radioactiv-
ity. Nuclear industry officials might like the definition of high-level
waste to be changed to allow for certain wastes to be excluded from a
repository to make disposal easier, quicker, and cheaper. Both sides,
however, fear the unpredictable outcome of opening up the legisla-
tion to amendment.
38. U.S. DOE, Top-to-Bottom Review Team, A Review of the
Environmental Management Program (2002). The intent of
this recommendation, however, appears to emphasize the potential
for reducing financial costs more than increasing public health
protections. Also, DOE has failed to develop or seek any political
consensus or coalition that would be necessary for enactment of stat-
utory changes in waste category definitions.
39. 40 C.F.R §261; see also 42 U.S.C. §§6901-6992k, ELR Stat.
RCRA §§1001-11011.
40. In fact, despite the fact that most TRU waste contains hazardous
chemical constituents that would otherwise be subject to RCRA reg-
ulations, Congress further exempted DOE from RCRA land disposal
restrictions for the WIPP site in 1996. Waste Isolation Pilot Plant
Land Withdrawal Act of 1992, Pub. L. No. 102-579, 106 Stat. 4777,
as amended by the National Defense Authorization Act for Fiscal
Year 1997, Pub. L. No. 104-201, §§3187-88 (1996).
Nuclear Fuel, and Contaminated Media, supra note 28, at
8-1.
42. 42 U.S.C. §§2011-2286i, 2296a-2296h-13 (including Price-Ander-
son Act).
43. See 10 C.F.R. §962.
44. 42 U.S.C. §6903(27), ELR Stat. RCRA §1004(27). The regulation
of mixed waste has a tortured history that largely preceded the Rio
Summit. See generally David P. O’Very, Regulation of Radioactive
Pollution, in Controlling the Atom in the 21st Century (Da-
vid P. O’Very et al. eds., 1994); Barbara A. Finamore, Regulating
Hazardous and Mixed Waste at Department of Energy Nuclear
Weapons Facilities: Reversing Decades of Environmental Neglect,
9 Harv. Envtl. L. Rev. 83 (1985); and Terrence R. Fehner & F.G.
Gosling, Coming in From the Cold: Regulating U.S. Department of
Energy Nuclear Facilities, 1942-1996, 1 Envtl. Hist. 5 (1996).
45. Generally, liquid high-level waste includes the first and second cy-
cle raffinate, i.e., nitric or other acid combined with the tributyl phos-
phate or other solvents, used for initial extraction of the plutonium of
other nuclear materials, which includes most of the mixed fissions
products, e.g., strontium-90, cesium-137, technetium-99, initially
part of the spent fuel and target being reprocessed. It also includes
the solids, such as crusts, salt cake, and other nonliquid materials that
subsequently form in storage tanks.
46. More precisely, high-level waste is defined statutorily by the Nu-
clear Waste Policy Act as “the highly radioactive material resulting
from the reprocessing of spent nuclear fuel, including liquid waste
produced directly in reprocessing and any solid material derived
from such liquid waste that contains fission products in sufficient
concentrations,” and “other highly radioactive material that the
[Nuclear Regulatory] Commission, consistent with existing law,
determines by rule requires permanent isolation.” 42 U.S.C.
§10101(12)(A). The Nuclear Regulatory Commission (NRC) has
defined high-level waste by regulation to also include “irradiated
(spent) reactor fuel (not intended for reprocessing)” and solidified
high-level waste. 10 C.F.R. pt. 60. The term “reprocessing” gener-
ally refers to aqueous plutonium uranium extraction (PUREX)
technologies, but could also include electrometallurgical or
“pyro” processing.
47. If spent fuel is not intended for reprocessing, it is defined as
high-level waste. DOE continues to distinguish spent fuel from other
high level waste forms, e.g., raffinnate resulting from reprocessing
spent fuel, despite DOE’s 1992 decision to phase out reprocessing,

tional news media coverage—high-level waste refers to
spent nuclear fuel, especially the spent fuel stored at com-
mercial nuclear power plants. In common parlance, when
the national news media mentions nuclear waste, they are
referring to high-level waste, which is generally spent nu-
clear fuel, especially the spent fuel stored at commercial nu-
clear power plants. The definition of high-level waste and
spent nuclear fuel is more critically important because of its
potential implications for proliferation of nuclear weapons
materials, and because of recent attempts to change the defi-
nition without legislation.
Although high-level waste and spent nuclear fuel com-
prise only a small portion of the volume of radioactive waste
that has been buried or is being stored,48
they represent more
than 95% of the radioactivity in nuclear waste, and are gen-
erally more long-lived than low-level wastes.49
Conse-
quently, these waste are considered to have the most signifi-
cant potential long-term environmental impacts.50
Through the use of various reprocessing technologies,
spent nuclear fuel can be used to produce nuclear weapons
materials, by extracting from it the plutonium that would
otherwise be “locked up” in the mixed fissions products
from the nuclear reactor. Consequently, the question of
whether spent nuclear fuel is considered a radioactive
“waste” and how it is managed has potentially significant
nuclear nonproliferation implications. Also, high-level
waste is a critical tool for detecting and preventing nuclear
weapons proliferation because it can be analyzed to deter-
mine whether it has resulted from weapons grade plutonium
extraction, or reactor grade plutonium extraction.51
Al-
though not widely pursued, some components of high-level
waste could be extracted to produce weapons material.52
As noted above, there has been little attempt to redefine
nuclear waste in terms of its risks and radioactivity, instead
of its origin, except for persistent concerns raised by a lim-
ited number of sophisticated nongovernmental analyses.
The prospect of a statutory change, however, was raised in
an early 2002 DOE report that complained, “waste are man-
aged according to their origins, not their risks.” This con-
cern followed more than a decade of quiet effort by DOE to
semantically detoxify large amounts of high-level waste
from reprocessing by creating a wholly new category of
waste, called “Waste Incidental to Reprocessing.”53
DOE
made this effort explicit by its proposal, as one of its “top
priorities,” to “[e]liminate the need to process . . . 75 percent
. . . of high level waste.”54
In this way, DOE portrayed the ef-
fort as an attempt to improve efficiency. But, improving effi-
ciency requires doing more with less, or, at a minimum, do-
ing the same work at lower cost. DOE proposal involves do-
ing less with less, which requires no management break-
through. DOE’s redefinition of high-level waste to reduce
costs is made easier by the fact that DOE enjoys self-regula-
tion of its high-level waste interim storage and treatment.
Moreover, DOE’s “incidental” waste scheme could not only
result in less environmental protection for an important cat-
egory of waste, but could further institutionalize DOE’s
self-regulation and facilitate further reprocessing by reduc-
ing the costs for the resulting wastes. Not incidentally, by re-
ducing the costs for managing high-level wastes, DOE
could also reduce the overall costs for reprocessing, and,
therefore, reduce the costs for producing more nuclear
weapons material, e.g., plutonium. This DOE redefinition
attempt is being challenged.55
As long as it remains unacknowledged, the conflict be-
tween nonproliferation and nuclear safety is one that will
only grow in intensity. If nuclear technology continues to
32 ELR 11064 9-2002
and the subsequent decommissioning of all U.S. reprocessing facili-
ties except at one site (the Savannah River Site in South Carolina),
thereby making reprocessing of nearly 90% of DOE-owned spent
nuclear fuel virtually impossible, without potentially dangerous in-
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
a “waste”; and, fundamentally, (3) a hope by some in DOE (contrary
to all objective evidence) that the spent fuel might someday be repro-
cessed because it represents a valuable nuclear material asset for
weapons or energy, and should not be discarded as a “waste.”
Ironically, this view is shared by DOE’s former nemesis in Russia’s
“Minatom” nuclear agency.
48. The volume of spent nuclear fuel is largely a theoretical data point
because it must be stored with ample separation between fuel rods to
avoid a criticality (spontaneous chain reaction). Nonetheless the vol-
ume of spent nuclear fuel (commercial and DOE-owned spent nu-
clear fuel are approximately 10,000 and 1,000 m3
, respectively) is
roughly 1% of the amount of low-level waste (commercial and
DOE-disposed/stored is more than 1 million m3
. See U.S. DOE, In-
tegrated Database—1996, supra note 27.
2-3.
50. All things being equal, risk is proportional to radioactivity. All
things however are not equal, and one must be careful about mak-
ing this generalization using the basic definition of risk as product
of probability and consequence. Probability of exposure to
low-level waste may be greater because workers are more likely
to being exposed to low-level than high-level waste because of
the more common occurrence of, and reduced safety standards
applicable, to low-level waste. In addition, the practice of shal-
low land burial of low-level waste could result in more frequent in-
advertent exhumation.
51. John Carlson et al., Australian Safeguards Office, Can-
berra ACT, Plutonium Isotopics—Non-Proliferation and
Safeguards Issues (1998) (IAEA-SM-351/64).
52. In particular, neptunium-237 and americium-241 can be extracted
from liquid high-level waste to produce weapons-usable material.
New Generation of Nuclear Weapons From Nuclear Waste, Jane’s
Defence Wkly., Mar. 31, 1999 (quoting David Albright). David
Albright & Lauren Barbour, Troubles Tomorrow? Separated Neptu-
nium 237 and Americium, in The Challenges of Fissile Mate-
rial Control (David Albright & Kevin O’Neill eds., 1999); Linda
Rothstein, Explosive Secrets, Bull. of Atomic Scientists,
Mar./Apr. 1999, available at http://www.thebulletin.org/issues/
1999/ma99/ma99bulletins.html#anchor1217541 (last visited June
3, 2002).
53. See DOE Order 435.1; 64 Fed. Reg. 29393 (July 14, 1999).
54. See Memorandum from Jessie Hill Roberson, Assistant Secretary
for Environmental Management, U.S. DOE, to Director, Office of
Management, Budget and Evaluation, Chief Financial Office (Nov.
2001).
55. Natural Resources Defense Council v. Abraham, No. CV-01-
413-S-BLW, (D. Idaho), on remand Natural Resources Defense
Council v. Abraham, 244 F.3d 742, 31 ELR 20547 (9th Cir. 2001).
This straight-forward lawsuit seeking to compel DOE to abide by the
Nuclear Waste Policy Act could have far-reaching implications.
First, it could halt DOE’s current regime of capping high-level waste
in place after using only readily available late 20th century tank
waste removal technology, and could require investments in a sub-
stantial long-term science and technology program focused on
high-level waste in tanks. This would require reversing DOE’s re-
cent actions, which have essentially eviscerated the DOE environ-
mental science and technology program. In 2002, DOE cut in half its
environmental science and technology program and appointed a new
director of the program with no experience in science and technol-
ogy or research and development. Second, it could force DOE to in-
ternalize the costs of its reprocessing operations, which generate ad-
ditional high-level wastes.

be used for power, research and testing is to continue, then
the full life-cycle implications must be considered and
openly debated. The United States has provided some sup-
port for replacing nuclear fuels with comparable non-
weapons usable fuel technology,56
but it continues to sup-
port use of weapons-grade uranium in domestic research
programs,57
leading to a “do as we say, not as we do” per-
ception by other countries. This is not a sustainable ap-
proach to the challenge.
D. Transuranic Waste
Transuranic waste generally includes waste contaminated
with plutonium.58
Because commercial nuclear power oper-
ations do not involve extracting plutonium from spent fuel,
virtually all of the transuranic waste in the United States is
associated with nuclear weapons production.59
The U.S.
“transuranic” waste category overlaps significantly with
waste defined as “intermediate” level waste in other coun-
tries. As of 1999, the U.S. stored approximately 171,000 m3
of transuranic radioactive waste and has approximately
169,000 m3
of buried transuranic waste.60
The definition of what is and is not a transuranic waste
was an issue in the late 1980s when DOE unsuccessfully
sought to evade regulation of its plutonium waste by assert-
ing that certain plutonium-contaminated material was not a
“waste,” but rather it was being stored for future reuse or re-
cycling to recover the residual plutonium.61
Other disputes
are likely to arise about the definition of transuranic waste in
at least two areas. First, large quantities of transuranic waste
are buried, and DOE has not yet decided whether this waste
will be exhumed for disposal in the dedicated deep geologic
repository being operated for transuranic waste disposal
known as the Waste Isolation Pilot Plant (WIPP). This deci-
sion is currently being made piecemeal on a site-by-site ba-
sis for each cleanup decision. Second, surplus plutonium
scrap material is being considered for direct WIPP disposal
rather than being processed for potential use in nuclear reac-
tors as mixed oxide fuel or solidified with liquid high-level
waste for disposal in another deep geologic repository. If it
is declared a “waste” it is more likely to be disposed of in
WIPP, rather than the other options.
III. Summary of the Past 10 Years in Radioactive
Waste Control
The world of radioactive waste has changed fundamentally
since 1992. The most profound changes resulted from the
end of the Cold War and the changing scope of nuclear
waste. An example of such change is the rethinking in the
United States of plutonium as a liability and a waste instead
of a valuable resource for nuclear weapons, or as in some
countries, as an asset for energy production. Some changes
reflected evolving environmental regulation and manage-
ment.62
Clearly these have been major changes in radioac-
tive waste management. But, it is not yet clear whether the
netresulthasbeentomakesocietymoreorlesssustainable.
A. Nuclear Waste Assumptions Are Changed by the End of
the Cold War
Nuclear weapons and the threat of nuclear war cast a
shadow over the last half century that obscured many as-
pects of radioactive waste management. Consequently, the
lifting of that shadow in the wake of the end of the Cold
War63
has helped bring many issues to light with unprece-
dented clarity. Although the Cold War had ended just before
the 1992 Rio Summit,64
the implications of this change had
NEWS & ANALYSIS
9-2002 32 ELR 11065
56. The desirable and somewhat unique characteristic of high enriched
uranium (HEU) fuel is that it provides high flux neutrons, which are
useful in the production of certain research and medical
pharmaceuticals, and for materials testing, e.g., composite plastics
used in skis and bicycles. The United States has sponsored a pro-
gram—the Reduced Enrichment Research and Test Reactor Pro-
gram—at the Argonne National Laboratory to replace the HEU fuels
with low enriched uranium (LEU), i.e., not weapons-usable,
high-density (HD) nuclear fuel, which provides comparable reactor
performance, and convince foreign countries to use these HD-
LEU fuels. The budget for this program, however, has been chroni-
cally underfunded.
57. The location of these reactors is not given here for security reasons. It
is sufficient to indicate that they include many leading universities,
including some communities where local residents objected to final
shipments of foreign spent fuel for the phase out program, but who
acceded to—or were silent about—continued and indefinite ship-
ments of identical materials to and from local domestic reactors.
58. See 42 U.S.C. §4214ee. More precisely, TRU waste includes alpha
emitting wastes containing more than 100 nCi/gram of TRU iso-
topes, i.e., isotopes with an atomic number larger than uranium, or
more than 92 on the periodic table of elements. An alpha is a sub-
atomic particle composed of two protons and two neutrons, indistin-
guishable from a helium atom nucleus.
59. The plutonium formed in a commercial nuclear power plant fuel
is imbedded in the spent fuel with other fission products and the
original uranium, and is regarded as “high-level waste.” Some
TRU waste is generated in non-weapons research projects, but
they are typically small quantities and often involve rare, non-
plutonium isotopes.
5-3, 6-7.
61. 734 F. Supp. 946, 20 ELR 21044 (D. Colo. 1990). Many of the pluto-
nium-contaminated waste drums had been stored for more than 10
years, and were not available for immediate reuse, as required by
RCRA’s recycling amendment. DOE was storing wastes subject to
the RCRA Land Disposal Restrictions (LDR). These LDR wastes
cannot generally be stored for more than one year. 40 C.F.R.
§268.50. RCRA also prohibits “speculative accumulation” of wastes
under the guise of future recycling. Id. §261.2(c)(4).
62. Market pressure to reduce costs, forced the use of new technologies
and operating procedures to significantly reduce low-level waste
generation volume.
63. The popular view is that a nuclear explosion in a major city is less
likely after the end of the Cold War. Many analysts, however, be-
lieve that the proliferation of fissile materials among parties less pre-
dictable than the former Soviet Union makes such a threat more
likely. See Graham Allison, Fighting Terrorism: Could Worse Be
Yet to Come?, The Economist, Nov. 3, 2001, at 19.
64. The fall of the Berlin Wall on November 9, 1989, is one marker for
the end of the Cold War. Another marker is the dissolution of the So-
viet Union on December 25, 1991. The end of the Cold War was
identified as September 27, 1991, for purposes of determining
worker and facility eligibility under the National Defense Authori-
zation Act for Fiscal Year 1993. See Pub. L. No. 102-484, subtit. E,
§3161, 106 Stat. 2315 (1992) (Department of Energy Defense Nu-
clear Facilities; Work Force Restructuring Plan). The September 27,
1991, date is derived from President George H.W. Bush’s announce-
ment to cease 24/7 nuclear armed bomber flights and to eliminate nu-
clear weapons from surface ships, which was followed on October 5,
1991, by Soviet Premier Mikhail Gorbachev reducing the number of
Soviet nuclear missiles on alert. Hence, the Cold War ended less than
a year before the Rio Summit. See Robert S. Norris, Nuclear Note-
book, Bull. of Atomic Scientists, Jan. 1992, available at
http://www.thebulletin.org/issues/1992/jf92/jf92.notebook.html
(last visited June 3, 2002). See also George H.W. Bush, Address to
the Nation on Reducing United States and Soviet Nuclear Weap-
ons, Sept. 27, 1991, at http://bushlibrary.tamu.edu/papers/1991/
91092704.html (last visited June 3, 2002).

not yet permeated the nuclear establishment and its physical
infrastructure.65
But, in the years since the Rio Summit, an
enormous rethinking of the role of nuclear technology and
the management of radioactive waste has begun.
The collapse of the Soviet Union and the reduction of
U.S. and Russian nuclear weapons arsenals66
have clearly
reduced some nuclear weapons dangers,67
but other nuclear
dangers increased. At the time of the Rio Summit in 1992,
there were five openly acknowledged nuclear powers hav-
ing a military nuclear weapons capability: United States,
Russia, Great Britain, China, and France.68
Since, 1992,
however, the list of declared nuclear powers has nearly dou-
bled to include India and Pakistan69
as well as Israel, who is
widely recognized as a nuclear weapons state,70
and South
Africa71
, which has dismantled its weapons. In addition,
Iraq72
and North Korea73
were found to have undertaken sig-
nificant nuclear weapons development programs, and Saudi
ex-patriot terrorist, Osama bin Laden, last residing in Af-
ghanistan, claimed to possess nuclear weapons.74
This en-
largement of the global Nuclear Club contributed to signifi-
cant unease regarding nuclear issues. This unease contrib-
uted to more than 170 countries attending the 1995
Nonproliferation Treaty Review and Extension Conference
at the United Nations in New York75
and agreeing to extend
the treaty indefinitely and without conditions.76
This treaty
addressed the use of reprocessing of high-level radioactive
waste to produce plutonium by relying on safeguards moni-
tored by the U.N. International Atomic Energy Agency
(IAEA). Unfortunately, the IAEA has been found to be inca-
pable of aggressively monitoring aspiring nuclear states that
might reprocess high-level waste surreptitiously.77
Ten years after the end of the Cold War its full implica-
tions are still not fully appreciated. Among these implica-
tions are a variety of shifts in how nuclear waste and radio-
active contamination is managed. The complex and inter-
twined, yet rarely acknowledged, relationship between nu-
clear waste and nuclear weapons is a critical issue that de-
serves consideration in any discussion of radioactive waste
control and sustainable development. A few examples of
this relationship in the United States are summarized here
regarding the changing definition of “radioactive waste,”
the potential use of radioactive waste for extracting nu-
clear weapons material, the availability of information
about radioactive waste and materials, the use of surplus
weapons materials for peaceful purposes, the use of radio-
active waste management funding to support weapons fa-
cilities and activities.
The end of the Cold War rocked the foundations of what
we previously thought was a waste to be disposed of versus a
valuable resource to be stockpiled. High-level radioactive
waste from nuclear power may be only a definition away
from being a nuclear weapons material. For example, the
nuclear industry oracle, the Nuclear Energy Institute, regu-
larly asserts that “high-level ‘nuclear waste’ is really used
nuclear fuel.”78
Some activists with the Nuclear Energy In-
stitute and the American Nuclear Society used this semantic
device to promote “recycling” of spent nuclear fuel from the
back end of the nuclear fuel cycle, via reprocessing, to ex-
tract the plutonium and uranium for use in fresh fuel to be re-
turned to the “front end” to generate more power.79
Debating
32 ELR 11066 9-2002
65. One notable exception was then-Sen. Al Gore (D-Tenn.) who had al-
ready recognized some of opportunities from the end of the Cold
War and joined with Senate Armed Services Committee chair, Sam
Nunn (D-Ga.), in early 1992 to launch the Strategic Environmental
Research Defense Initiative (SERDP), which sought to make avail-
able enormous defense assets, e.g., oceanographic data from subma-
rines and P-2 Orion surveillance aircraft, that could be used in envi-
ronmental research.
66. Although arms control agreements have reduced the active stock-
piles and thousands of nuclear warheads have been dismantled, a
large inactive nuclear stockpile that is not covered in the agreements
remains, with the total U.S. stockpile at approximately 10,000 war-
heads. See Robert S. Norris, Nuclear Notebook: U.S. Nuclear
Forces, Bull. of Atomic Scientists, Mar./Apr. 2001, at 77.
67. The hair trigger readiness of thousands of remaining operational nu-
clear missiles, however, remains a significant risk, particularly from
technicalmalfunctionormiscalculationbyU.S.orRussianpersonnel.
68. In addition to the five declared nuclear powers, Israel, India, and
South Africa were widely regarded as de facto nuclear powers. Israel
has long been widely suspected of possessing nuclear weapons, but
has never publicly confirmed it, despite a detailed book on the sub-
ject by Seymour Hersh, see Seymour Hersh, The Sampson Op-
tion (1991), and other details disclosed by former Israeli technician
Mordechai Vanunu in 1986. Also, India had detonated a nuclear ex-
plosion in 1974, but referred to it officially as a “peaceful nuclear ex-
plosion.” After the Rio Summit, in 1993, South Africa revealed that
it had produced, and later dismantled nuclear weapons.
69. John F. Burns, Indian Scientists Confirm They Detonated a Hydro-
gen Bomb, N.Y. Times, May 18, 1998, at A1; John F. Burns, Paki-
stan, Answering India, Carries Out Nuclear Tests; Clinton’s Appeal
Rejected, N.Y. Times, May 29, 1998, at A1; M.V. Ramana & A.H.
Nayyar, India, Pakistan and the Bomb, Sci. Am., Dec. 2001, at 60,
available at http://www.sciam.com/2001/1201issue/1201ramana.
html (last visited Apr. 25, 2002).
70. Avner Cohen, Most Favored Nation, Bull. of Atomic Scientists,
Jan. 1995, at 44.
71. David Albright, South Africa and the Affordable Bomb, Bull. of
Atomic Scientists, July/Aug. 1994, at 37-47.
72. Judith Miller & James Risen, Tracking Baghdad’s Arsenal: Inside
the Arsenal: A Special Report: Defector Describes Iraq’s Atom
Bomb Push, N.Y. Times, Aug. 15, 1998, at A4; see also Letter from
Hans Blix, Director-General of the IAEA, to Secretary General of
the United Nations (Oct. 6, 1997) (addressing Fourth Consolidated
Report of the Director-General of the IAEA to the Secretary General,
Under Paragraph 16 of U.N. Resolution 1051), available at
http://www.iaea.org/worldatom/Programmes/ActionTeam/reports/
s_1997_779.pdf (last visited Apr. 25, 2002).
73. Victor Gilinsky, Nuclear Blackmail: The 1994 U.S.–Democratic
People’s Republic of Korea Agreed Framework on North Korea’s
Nuclear Program, in Hoover Institution Essays in Public Pol-
icy (1999); Remarks of Ambassador Robert Gallucci, at Carnegie
International Non-Proliferation Conference, on Proliferation Pros-
pects (Mar. 16, 2000); and Joseph Cirincione, Non-Proliferation
Project at the Carnegie Endowment for International Peace, The
Asian Nuclear Chain Reaction, Foreign Pol’y, Spring 2000; Car-
negie Endowment for International Peace (CEIP), Proliferation
Brief, Vol. 3, No. 3 (Mar. 2, 2000).
74. Tim Weiner, A Nation Challenged: Al Qaeda; Bin Laden Has Nu-
clear Arms, N.Y. Times, Nov. 10, 2001, at B4.
75. Treaty on the Non-Proliferation of Nuclear Weapons, Mar. 5, 1970,
art. IV, cl. 2, 21 U.S.T. at 489, T.I.A.S. No. 6839 at 6, 729 U.N.T.S.
The treaty was approved on May 11, 1995, to remain in force indefi-
nitely and without condition.
76. See U.S. State Department, Treaty on the Non-Proliferation of Nu-
clearWeapons,athttp://www.state.gov/www/global/arms/treaties/
npt1.html (last visited Apr. 25, 2002); and United Nations, Treaty on
the Non-Proliferation of Nuclear Weapons, at http://www.un.org/
Depts/dda/WMD/treaty/index.html (last visited Apr. 25, 2002).
77. Jared Dreicer, How Much Plutonium Could Have Been Produced in
the DPRK IRT Reactor?, 8 Sci. & Global Security 273 (2000);
Paul Leventhal, Plugging the Leaks in Nuclear Export Controls:
Why Bother?, Orbis, Spring 1992, at 177; and David Albright & K.
O’Neill, The Iraqi Maze: Searching for a Way Out, 8 Nonpro-
liferation Rev. 1 (2001).
78. See Nuclear Energy Institute, High-Level “Nuclear Waste” Is
Really Used Nuclear Fuel, at http://www.nei.org/doc.asp?catnum
=2&catid=62 (last visited Apr. 25, 2002).
79. This method of obtaining fresh fuel has never been found to be eco-
nomical, compared to the cost of newly mined and processed ura-

the definition of “waste” is not unique to radioactive
waste.80
For radioactive waste, however, this question has
far-reaching national security and environmental implica-
tions, and has undergone a profound historic shift during the
last 10 years. The declaration of plutonium surpluses by the
United States and Russia since 1992, have added to the al-
ready excessive stockpiles of plutonium.81
Even before this
dramatic expansion of plutonium surpluses, there was no
economic justification for defining spent nuclear fuel as
anything other than a “waste.” Nonetheless, dreams of end-
less plutonium supplies by reprocessing high-level radioac-
tive waste continue to swim against the current of facts and
logic. Although the United States has announced plans for a
permanent nuclear waste repository in Nevada, some offi-
cials argue that technologies involving reprocessing, not
contemplated in the Nuclear Waste Policy Act,82
may be
preferable to disposal,83
despite the fact that these technolo-
gieswouldnotobviatetheneedforageologicrepository.84
Since the end of the Cold War, enormous stockpiles of
“special nuclear materials,” e.g., plutonium (Pu)-239 and
uranium (U)-235,85
and other materials, e.g., depleted ura-
nium and lithium,86
materials that were painstakingly built
up for nuclear weapons arsenals, have been rendered sur-
plus, but not officially declared “waste.” The most well-
known example is the case of disposing of 100 metric tons of
surplus U.S. and Russian weapons-grade plutonium that
have been declared surplus.87
Generally, the U.S. policy is to
regard excess plutonium as a waste and marginal energy re-
source, while Russia regards excess plutonium as a valuable
resource that should be used, and reused, for nuclear power
fuel. Despite these different perspectives, the United States
and Russia are both seeking to blend the plutonium into nu-
clear fuel88
and “burn” it in nuclear power plants. Although
this is not the most economical method of generating nu-
clear power, it is being pursued, in part, because it will ren-
der the plutonium unusable for weapons by “poisoning” it
with fission products.89
The goal is to meet the “spent fuel
standard,” which was a concept articulated in a seminal re-
port by the National Academy of Sciences to seek to make
the plutonium from warheads as unavailable as the pluto-
nium that is embedded in spent fuel from conventional nu-
clear power plants.90
A parallel U.S. program to immobilize
plutonium in glass was initiated in 1996, but canceled in
2002 by the Bush Administration.91
Unfortunately, all plutonium is not fully accounted for
and in secure storage ready for disposal as a waste. For de-
cades, the United States and Russia provided nuclear mate-
rials as part of a Cold War technology support effort along
with economic and other measures to exert geopolitical in-
fluence. Some of these radioactive material sources, which
are commonly regarded as radioactive “waste” after use,
can be used for crude ”dirty bombs” that cannot cause a nu-
clear explosion, but could disperse radioactivity. As a result
of a 1984 Reagan Administration decision to end the track-
ing of plutonium sources, a significant number of “sealed
sources” are unaccounted for after they were provided to
foreign countries, including Columbia, Iran, Pakistan, the
Philippines, and Vietnam.92
This problem of losing radioac-
tive materials further demonstrates the fuzziness of defining
what constitutes radioactive “waste.” In addition, it reflects
the lesser degree of control given to wastes compared to a
fresh, new nuclear resource.93
The material may be techni-
NEWS & ANALYSIS
9-2002 32 ELR 11067
nium. In addition to the cost of recovering the plutonium and ura-
nium, the process produces a large amount of liquid high-level
waste, creates substantially more hazardous working conditions for
operations technicians, and contributes to global nuclear prolifera-
tion problems by fostering a market in reprocessed plutonium and
uranium. The recent process of blending down high enriched (weap-
ons-grade) uranium to low enriched (reactor-grade) uranium has
only exacerbated the economic problems of using reprocessing as a
source of nuclear reactor fuel. See William C. Sailor, The Case
Against Reprocessing, in F. for Applied Res. & Pub. Pol’y
(1999); Frank N. von Hippel, Plutonium and Reprocessing of Spent
Nuclear Fuel, 293 Science 2397-2398 (2001).
80. See, e.g., the long-running debates about the regulatory definition of
“solid waste” under RCRA. 42 U.S.C. §6903, ELR Stat. RCRA
§1004, and 40 C.F.R. §261. See Aaron Goldberg, The Federal Haz-
ardous Waste Program: A House of Cards, Env’t Rep. (BNA), June
16, 1995.
81. In 1988, the Secretary of Energy said: “We’re awash in plutonium.
We have more plutonium than we need.” John Herrington, Secre-
tary of Energy, Testimony Before the House Appropriations
Subcomm. on Interior and Related Agencies (Feb. 23, 1988).
82. 42 U.S.C. §§10101-10270.
83. Sen. Pete V. Domenici, A New Nuclear Paradigm, Inaugural Sym-
posium, Belfer Center for Science and International Affairs, Har-
vard University (Oct. 31, 1997); Lira Behrens, Domenci May Re-
think Spent Fuel Disposal, Inside Energy, Nov. 10, 1997, at 1.
84. National Academy of Sciences, Interim Report of the
Panel on Separations Technology and Transmutations
Systems (1992); National Academy of Sciences, Board on
Radioactive Wastes, Nuclear Wastes: Technologies for
Separations and Transmutation (1996).
85. See 42 U.S.C. §2014(aa).
86. U.S. DOE, Taking Stock: A Look at the Opportunities and
Challenges Posed by Inventories From the Cold War
Era—A Report of the Materials in Inventory Initiative
(1996)(DOE/EM-0275)[hereinafter U.S.DOE,TakingStock].
87. A full examination of the complex and evolving issue is beyond this
Article. For background, see Arjun Makhijani & Annie
Makhijani, Fissile Materials in a Glass, Darkly (1995),
available at http://www.ieer.org/pubs/fissmats.html (last visited
Apr. 25, 2002); Howard Hu et al., Plutonium (1992); Matthew
Bunn & John P. Holdren, Managing Military Uranium and Pluto-
nium in the United States and the Former Soviet Union, 22 Ann.
Rev. of Energy & the Env’t 403-486 (1997).
88. Known as mixed oxide (MOX) fuel this blend of plutonium and ura-
nium can be used in conventional nuclear power reactors up to ap-
proximately one-third of the fuel charge.
89. “Fission products” are created by splitting uranium and plutonium
atoms in a nuclear reactors. Examples of fission products include ce-
sium, strontium, technecium, and americium.
90. National Academy of Sciences, Committee on Interna-
tional Security and Arms Control, Management and Dis-
position of Excess Weapons Plutonium (1994): “We recom-
mend . . . plutonium disposition options that result in a form from
which the plutonium would be as difficult to recover for weapons as
the lager and growing quantity of plutonium in commercial spent
fuel. . . .” Id.
91. Matthew L. Wald, U.S. Settles on Plan to Recycle Plutonium, N.Y.
Times, Jan. 23, 2002, at A15.
92. Much of this unaccounted for plutonium is non-fissile Pu-238 rather
than the Pu-239 isotope used for nuclear warheads. See U.S. DOE,
Office of Inspector General, Accounting for Sealed
Sources of Nuclear Materials Provided to Foreign Coun-
tries (2002) (DOE/IG-0456); Walter Pincus, Report Cites Unac-
counted Plutonium: Amounts Sufficient to Create “Dirty Bomb,”
Official Says, Wash. Post, Mar. 27, 2002, at A9. Also, DOE dis-
closed in 1997 that 80 grams of weapons-grade plutonium was inad-
vertently left behind during the chaotic withdrawal of forces from
Vietnam in 1975. See U.S. DOE, Statement of Secretary Ha-
zel O’Leary, Openness: The Way to Do Business, Press
Conference Fact Sheets (1997).
93. See U.S. DOE, Plutonium, the First Fifty Years; United
States Plutonium Production, Acquisition, and Utiliza-
tion From 1944 Through 1994 (1996) (DOE/DP-0137). Appen-
dix B on plutonium waste details how plutonium that was disposed

cally identical, but a semantic or legalistic distinction can
mean that the material becomes an environmental or a na-
tional security risk.
A less well-known “waste/resource” problem, but more
pervasive, is the challenge of dealing with a variety of other
nuclear materials rendered surplus by the end of the Cold
War that have not been declared “waste,” but require dispo-
sition, largely as wastes with few opportunities for recy-
cling.94
One example is depleted uranium.95
DOE disclosed
information on the U.S. stockpile of 585,000 metric tons of
depleted uranium. The stockpile was found to be larger than
needed for any demonstrated mission needs, such as tank ar-
mor or penetrator bullets,96
the safety of which has been
questioned.97
Nonetheless, the U.S. government continues
to decline to classify depleted uranium as a waste, despite le-
gal challenges by the state of Ohio. As a result of a bipartisan
directive from the U.S. Congress, with strong support from
labor unions,98
the United States is now building facilities99
to convert the long-stored depleted uranium100
to a form
suitable for storage or disposal. Part of DOE’s recalcitrance
in reclassifying depleted uranium as a “waste” is the hope by
many within DOE that depleted uranium can be used as a
source of fissile uranium for nuclear power. The technology
for potentially spinning this nuclear straw into “nuclear
gold”101
is the Advanced Laser Isotope Separation
(AVLIS), research for which was canceled soon after
DOE’s enrichment enterprise was privatized after decades
of government-funded research. Nonetheless, the prospects
for developing AVLIS, kept alive in part by continued de-
pleted uranium storage, is troubling for international secu-
rity reasons. The same technology that was proposed for
AVLIS, and the related Special Isotope Separation, could be
used to extract weapons-usable fissile materials102
and
could be easier to conceal from verification than the large
industrial-scale reprocessing facilities used historically to
separate weapons materials. Continuing to maintain the
large stockpiles of depleted uranium (dU), preserves a po-
tential justification for AVLIS and helps keep alive the
hopes of many that some form of laser isotope separation
technology can convert the nuclear waste to an asset.103
Un-
fortunately, it also helps keep alive the threat that this tech-
nology could help promote nuclear proliferation.
During the 1990s, the United States continued operation
of the processing “canyons” at the Savannah River Site in
South Carolina104
in order to “stabilize” spent nuclear fuel
and other irradiated materials, e.g., Mark-31 plutonium pro-
duction targets, resulting in the purification of additional
quantities of weapons-grade plutonium. The “waste” spent
fuel is converted into the national security material of puri-
fied plutonium, which requires extraordinary safeguards
and security, as well as some additional radioactive waste.
These operations were conducted under the pretense of
“materials stabilization,”105
and illustrate another connec-
tion between nuclear waste and nuclear weapons produc-
tion. In some reprocessing proponent’s view, converting
spent fuel into a weapons-grade Pu-239 portion and a liq-
uid high-level waste portion is more “stable” than main-
taining the spent fuel in a solid form and using a more spe-
cialized technology to stabilize it without producing weap-
ons material.106
32 ELR 11068 9-2002
of as waste was not accounted for with the same rigor accorded to
plutonium still considered part of the production system using the
Nuclear Materials Management and Safeguards System. Id. at
app. B.
94. See U.S. DOE, Taking Stock, supra note 86.
95. Depleted uranium is defined as uranium with less than 0.71% U-235.
Natural uranium is primarily composed of non-fissile U-238, with
0.71% U-235, which is extracted through the enrichment process to
increased the relative proportion of U-238 to 3 to 4% for nuclear
power plants fuel and more than 20%, and often more than 90% (ex-
act enrichment levels are classified), for weapons grade and naval
nuclear propulsion systems, i.e., submarine and aircraft carriers.
96. Because of its extreme high density (and therefore projectile force),
depleted uranium is used in tank penetrator bullets to pierce armor
plating, and defensively for plating on U.S. tanks such as the M1A-1.
Limited amounts of depleted uranium were used for bullet and armor
production at the Special Manufacturer Capability (SMC) facility at
the Idaho National Engineering Laboratory. This enterprise was
classified as “Black”—meaning that the government did not ac-
knowledge the existence, much less provide any information about,
the SMC program—until the 1990s.
97. The safety of depleted uranium (dU) bullets have been the topic of
debate by critics who allege health threats, see Akira Tashiro, Dis-
counted Casualties: The Human Cost of Depleted Uranium, The
Chugoku Shimbun, Apr. 24, 2001; Bill Mesler, The Pentagon’s
Radioactive Bullet: An Investigative Report, The Nation, Oct. 21,
1996; and Bill Mesler, Pentagon Poison: The Great Radioactive
Ammo Cover-Up, The Nation, May 26, 1997, or others who assert
depleted uranium poses no significant risks, see Steve Fetter &
Frank von Hippel, After the Dust Settles, Bull. of Atomic Scien-
tists, Nov./Dec. 1999, at 42. Unresolved is the management issue of
whether discharging the depleted uranium from an aircraft during a
training exercise, e.g., in the Ozark Lakes of Missouri or the Nellis
range in Nevada, is radioactive waste disposal.
98. The Oil, Chemical and Atomic Workers Union, later consolidated
with the Paper and Allied Chemical Employees, faced the prospect
of massive job losses after the privatized DOE enrichment opera-
tion—the U.S. Enrichment Corporation (USEC)—announced its
plan to shut down the Portsmouth plant in Ohio, and leave only the
Paducah plant in Kentucky operating.
99. The fiscal year (FY) 2003 budget request included funding for only
one facility, although strong congressional support may direct that
theoriginallyplannedtwofacilities(OhioandKentucky)bebuilt.
100. The depleted uranium had long been stored as uranium hexafluoride
outdoors with no cover in Kentucky, Ohio, and Tennessee outside in
tens of thousands of 10- and 14-ton steel cylinders, more than 17,000
were found by DOE to be corroded. U.S. DOE, Taking Stock, su-
pra note 86, at 150.
101. Despite decades of government investment in the technology, the
high costs of constructing and operating an AVLIS facility, com-
bined with the unproven experimental nature of the project, led to the
cancellation of the program soon after the private entity, USEC, took
control of the enterprise.
102. The essential technology for both AVLIS and SIS is the vaporization
of metallic plutonium or uranium mixtures, and then selectively ion-
izing (giving it a positive or negative charge depending on the iso-
tope) various plutonium or uranium isotopes, e.g., Pu-239 or U-235,
from the hot vapor with a tuned laser, thereby allowing the desired
isotope to be collected magnetically.
103. The potential high purification levels achievable with laser isotope
separation could be used to produce relatively pure, weapons-usable
U-235 or Pu-239, even from stocks of otherwise unusable impure
uranium and plutonium, that might be regarded as “waste.”
104. Reprocessing facilities were also operated in Idaho at the Idaho
Chemical Processing Plant and the Idaho Nuclear Technology Cen-
ter at the Idaho National Engineering Laboratory; in Washington at
the Hanford Reservation PUREX and T-Plants; and in New York at
West Valley, south of Buffalo. Commercial reprocessing plants built
in Morris, Illinois, and Barnwell, South Carolina, never operated.
105. The need to stabilize the spent fuel and surplus plutonium was
clearly legitimate. See U.S. DOE, Plutonium Working Group
Report on the Environmental Safety and Health Vulnera-
bilities Associated With the Department’s Plutonium Stor-
age (1994) (DOE/EH-0415). In some cases, however the need and
urgency for stabilization of some materials was overblown, and re-
sulted in extended reprocessing canyon operations.
106. Editorial, Push for Reprocessing, Augusta Chron., May 16, 1996,
at 4A; Editorial, Reprocessing Is the Answer to Waste and Fuel Han-
dling at SRS, Aiken Standard, Mar. 21, 1996; and Greg Renkes,

DOE continues to operate and upgrade the Savannah
River Site reprocessing canyons using funding from the En-
vironmental Management budget,107
producing significant
quantities of weapons-grade plutonium as well as a variety
of nuclear materials, e.g., Pu-242, for programmatic, i.e.,
nuclear weapons, purposes.108
DOE has justified this opera-
tion based on the need to reduce risks from unstable mate-
rial. This legitimate justification has been overused, however:
material that was clearly identified as not presenting any im-
minent risk, i.e., Mark 16/22 targets, was reprocessed for
largely political reasons.109
This “stabilization” reprocess-
ing results not only in production of purified weapons mate-
rial, but generates additional liquid high-level waste, which
is added to the 90 million gallons and 2.4 billion curies of ra-
dioactivity (approximately 98% of all radioactivity in U.S.
radioactive wastes) already stored in underground storage
tanks, which have already exceeded their design life.110
The government’s strategy for managing spent nuclear
fuel supports further reprocessing operations.111
In the wake
of the decision of President George H.W. Bush’s Admin-
istration112
to phase out reprocessing, DOE performed a pro-
grammatic environmental impact statement (EIS)113
that re-
sulted in a decision to manage spent nuclear fuel according
to fuel type, e.g., aluminum clad versus, steel clad, etc.. Om-
inously, DOE decided to ship spent nuclear fuel to sites that
are best suited to perform reprocessing using existing equip-
ment.114
In 1996, DOE indicated that it would begin devel-
opment of an alternative technology to replace reprocessing
for stabilizing some spent nuclear fuel,115
but has regularly
underfunded or outright defunded this technology develop-
ment program. Despite being selected as the preferred alter-
native in a recent EIS the ability to use an alternative tech-
nology to reprocessing is in jeopardy and if stored spent nu-
clear fuel becomes unstable at the Savannah River Site,
DOE may have no feasible option to converting the spent
nuclear fuel to weapons material and liquid high-level
waste. At DOE’s Hanford site, the decisions to keep the
PUREX reprocessing facility shut down stranded spent
nuclear fuel at Hanford. Because the traditional method of
managing spent nuclear fuel (reprocessing in PUREX)
was unavailable, DOE developed and used an alternative
technology.116
A classic case of nuclear waste controls overlapping with
nuclear weapons nonproliferation efforts is the program to
return foreign spent fuel to the United States. This program
seeks to avert nuclear proliferation by accepting spent fuel
in exchange for an agreement to phase out use of weap-
ons-grade uranium in research and test reactors.117
The pro-
gram was not consistently operated, and had virtually
ceased by 1992.118
In 1993, the DOE and U.S. State Depart-
ment resuscitated this nonproliferation program, and under-
took short- and long-term operations for returning foreign
spent fuel to DOE facilities in the United States. Despite ef-
forts to characterize the shipment of spent nuclear fuel into
U.S. ports as a nonproliferation program, public perception
was that this is dangerous “nuclear waste” and the United
States should not be the “dumping ground,” or at a mini-
mum that it should not be shipped in through their local
port.119
When the United States initially shipped uranium
NEWS & ANALYSIS
9-2002 32 ELR 11069
U.S. High-Level Waste Management Policy and the Reprocessing
Option (Speech to the American Nuclear Society in Washington,
D.C.) (Nov. 1996).
107. U.S. DOE, Congressional Budget Request (2002)
(DOE/CR-0076).
108. Bette Hileman, Energy Department has Made Progress Cleaning
Up Nuclear Weapons Plants, Chem. & Engineering News, July
22, 1986, at 14.
109. See Letter from John Conway, Chair of the Defense Nuclear Facil-
ities Safety Board, to Energy Secretary Hazel O’Leary (Nov. 15,
1995); and Letter from Sen. Strom Thurmond, Chair of the Senate
Armed Services Committee, to Energy Secretary Hazel O’Leary
(Nov. 16, 1995) (on file with author). These letters were coordinated
by the two offices, and provided no new technical information, but
strongly support retaining jobs for southern South Carolina govern-
ment nuclear contractor workers. A detailed technical review by
DOE found these wastes posed no risk warranting reprocessing.
There was a list of materials “at risk” and some “not at risk.” The
M-16/22’s were reprocessed even though they were identified as not
at risk, essentially due to pressure from Sen. Strom Thurmond.
(R-S.C.) to provide additional federal jobs in South Carolina.
4-23.
111. Prior to May 2001, the U.S. policy was to consider reprocessing only
for government -owned spent fuel, and all commercial high-level
waste was to be disposed of it in a geologic repository directly. A
Bush Administration report, see National Energy Policy De-
velopment Group, National Energy Policy: Report of the
National Energy Policy Development Group 5-16 (2001),
proposed to reopen the possibility of reprocessing spent nuclear fuel
and investing in reprocessing technologies, although the FY 2003
budget did not reflect this rhetoric.
112. Memorandum from James Watkins, Secretary, U.S. DOE, to Staff
(Apr. 1992).
113. The scope of this environmental impact statement (EIS) was ex-
panded to cover spent nuclear fuel only after the legal intervention
by Gov. Cecil Andrus (D-Idaho), resulting in an injunction on Au-
gust 9, 1993, preventing additional spent nuclear fuel shipments to
Idaho.
114. U.S. DOE, Programmatic Spent Nuclear Fuel Management
and Idaho National Engineering Laboratory Environmen-
tal Restoration and Waste Management Programs Final
Environmental Impact Statement (1995) (DOE/EIS-0203-F)
(known as Programmatic Spent Nuclear Fuel and INEL EIS). See
also the records of decision for that EIS, 60 Fed. Reg. 28680 (June 1,
1995) and Programmatic Spent Nuclear Fuel Management and
Idaho National Engineering Laboratory Environmental Restoration
andWasteManagementPrograms,61Fed.Reg.9441(Mar.8,1996).
115. On February 23, 1996, EPA published a Notice of Availability of the
final EIS. U.S. Final Environmental Impact Statement on a Proposed
Nuclear Weapons Nonproliferation Policy Concerning Foreign Re-
search Reactor Spent Nuclear Fuel, 61 Fed. Reg. 6983 (Feb. 23,
1996) (DOE/EIS-0218F).
116. DOE constructed a vacuum drying facility at Hanford to prepare
spent fuel stored in water pools at the K Basins in the 100 Area for
storage in a retrofitted facility in the 200 Area.
117. During the Cold War, the United States had shipped uranium to more
than 40 countries to assist their nuclear development and to encour-
age them to refrain from developing a “home-grown” weap-
ons-grade uranium production capability. In this “Atoms for Peace”
program, the United States agreed to accept the spent fuel. Not only
did this relieve the participating countries of the burden of storing
spent fuel, but it also helped control the spread of nuclear weapons
materials. Unlike nuclear power plant fuel, this fuel contained high
enriched, or weapons-grade uranium, which could be extracted
through reprocessing.
118. The program stalled in part because of legal challenges by U.S.
NGOs, which objected to what was viewed as a duplicitous policy of
returning nuclear material to the United States in an ostensible
nonproliferation effort but then reprocessing the spent nuclear fuel
to extract weapons-grade uranium for use in the U.S. nuclear weap-
ons program. This problem ended in 1992 with the U.S. decision to
phase out reprocessing.
119. Hundreds of people attended hearings in Portland, Oregon, and Con-
cord, California, to object to the shipments through their local ports.
The California hearings were also attended many University of Cali-
fornia employees seeking contract work with DOE, and conse-
quently declined to voice support for the shipments, despite their
support and acceptance because their first priority was their market-

and fuel overseas during the Cold War, there was little con-
sideration given to the potential problems of returning and
managing the resulting spent fuel.
B. Commercial Nuclear Waste Eclipsed by Nuclear
Weapons Facilities’ Waste
To the extent that the 1992 Rio Summit addressed radioac-
tive waste, it focused on commercial nuclear waste, which
included waste from nuclear power plants and medical labo-
ratories. This focus reflected the public and political lack of
awareness of the radioactive waste legacy that had been ac-
cumulating in relative secrecy in the factories and labora-
tories120
of the U.S. nuclear weapons complex. This fog of
secrecy began to lift in the late 1980s, spurred by safety
problems in the facilities, congressional investigations, and
the newspaper coverage of these problems. The stage was
set by private publications that began to pull the cover off of
nuclear weapons activities.121
From 1988-1989, a team of
reporters from the New York Times published almost daily
articles about the environmental and safety problems with
the nation’s aging nuclear weapons facilities.122
DOE,
which is responsible for managing the U.S. nuclear weapons
complex, quietly launched a series of environmental sur-
veys between 1986 and 1989 to catalogue the environmental
problems, followed by a more public “Tiger Teams” investi-
gations. In addition, the Administration of President George
H.W. Bush created a new office of Environmental Restora-
tion and Waste Management within DOE to help focus re-
sources on the cleanup. This evolution of openness ex-
ploded in 1993 with the series of “Openness Initiative” press
conferences held by Energy Secretary Hazel O’Leary, be-
ginning on December 7, 1993.123
DOE also published a se-
ries of books and reports that provided an unprecedented
and candid account of the nuclear weapons complex and its
environmental and safety problems.124
By the end of the
1990s, there was a broadened awareness of the environmen-
tal problems with the U.S. nuclear weapons complex.
The widespread environmental problems were acknowl-
edged “officially” by the government when environmental
cleanup requirements affecting budgets in the 1990s and the
estimated costs more than doubled.125
In 1988, DOE’s first
cleanup estimate was approximately $85 billion,126
which
placed government cleanup costs on par with the roughly
$100 billion estimate for cleanup of commercial nuclear
power plants. DOE’s initial cost projection would inevitably
rise, however, because embedded in the 1988 estimate was
the assumption that most nuclear weapons facilities would
continue operating and would not require much clean-
up—one of many assumptions that changed in the wake of
the end of the Cold War. DOE later estimated the govern-
ment’s total environmental liability for radioactive waste
cleanup at approximately $230 billion.127
Combined with a
drumbeatofenvironmentalhorrorstoriesandnewDOEstud-
ies,128
these cost estimates had the effect of sweeping back a
curtain of secrecy revealing a landscape of radioactive waste
problems. These newly revealed problems were more than
twice the size of commercial nuclear waste challenges.129
For fiscal year 2003, the annual budget for DOE’s Environ-
mental Management program is nearly $7 billion—larger
thantheU.S.EnvironmentalProtectionAgency’s(EPA’s)en-
tire operating budget, and far larger than environmental ex-
penditures by commercial nuclear operations, making it the
largest single environmental program in the world.
32 ELR 11070 9-2002
ing interests rather than community education and nonproliferation.
There were also many older residents who were surprised to learn
that virtually all of the uranium proposed for return through the port
had secretly been originally shipped overseas through California
ports during the Cold War, but objected when offered the opportu-
nity to comment.
120. In Russia, nuclear waste also accumulated secretly in naval ship-
yards, e.g., Murmansk, from ships and submarines. U.S. Navy ship-
yards were largely kept free of nuclear waste by promptly shipping it
to a DOE facility in Idaho. See, e.g., Don J. Bradley, Pacific
Northwest Laboratories, Behind the Nuclear Waste Cur-
tain: Radioactive Waste Management in the Former Soviet
Union (1997).
121. Thomas B. Cochran et al., Nuclear Weapons Databook
(1987); Robert Del Tredici, At Work in the Fields of the
Bomb (1987); Howard Moreland, The H-Bomb Secret: The
Know-How Is to Ask Why, The Progressive, Nov. 1979, at 3, avail-
able at http://www.progressive.org/pdf/1179.pdf (last visited June
3, 2002).
122. William Lanouette, Tritium and the Times: How the Nuclear Weap-
ons-Production Scandal Became a National Story (JFK School of
Government, Harvard University, Research Paper R-1 1990).
123. The information that was most widely reported was the use of unwit-
ting human subjects for a series of radiation experiments that began
in the 1940s, including the use of retarded children and minority and
indigent subjects in exchange for money. Although some of this in-
formation had been reported years earlier by Rep. Edward Markey
(D-Mass.), it was made more explicit by a series of reports in the Al-
buquerque Journal, which earned the reporter a Pulitzer Prize and
was later published in a detailed book on the issue. See Eileen
Welsome, Plutonium Files: America’s Secret Medical Ex-
periments in the Cold War (1999). The larger impact of this rev-
elation was that President William J. Clinton established an inter-
agency review and a Federal Advisory Committee on Human Radia-
tion Experiments, which undertook a wide-ranging investigation of
this issue.
124. U.S. DOE, Closing the Circle on the Splitting of the Atom:
The Environmental Legacy of Nuclear Weapons Produc-
tion in the United States and What the Department of En-
ergy Is Doing About It (1995) (DOE/EM-0266); U.S. DOE, Es-
timating the Cold War Mortgage: The Baseline Environ-
mental Management Report (1995) (DOE/EM-0232); U.S.
DOE, The 1996 Baseline Environmental Management Re-
port (1996) (DOE/EM-0290); U.S. DOE, Taking Stock, supra
note 86; Linking Legacies, supra note 24; U.S. DOE, From
Cleanup to Stewardship (1998) (DOE/EM-0466); U.S. DOE,
Buried Transuranic Contaminated Waste Information for
U.S. Department of Energy Facilities (2000); and U.S. DOE,
Office of Environmental Management, Report to Congress
on Long-Term Stewardship (2001) (DOE/EM-0563) [hereinaf-
ter DOE/EM Report to Congress].
125. Some observers have suggested that DOE shifted spending to its en-
vironmental cleanup budget to help fund facility maintenance when
environmental spending became more politically popular than nu-
clear weapons production. Later analyses, see note 127 infra, con-
firmed that much of the “cleanup” budget was spent on maintenance
rather than cleanup.
126. U.S. DOE, Environment, Safety, and Health Needs of the
U.S. Department of Energy (1988) (DOE/EH-0079).
127. U.S. DOE, Estimating the Cold War Mortgage, supra note
124. This estimate was initially questioned, but was subsequently
replicated, see U.S. DOE, The 1996 Baseline Environmental
Management Report, supra note 124, and independently vali-
dated, see U.S. DOE, Accountability Report, Fiscal Year
1999 (2000) (DOE/CR-0069); Letter from Greg Friedman, Inspec-
tor General, DOE, Accompanying DOE/IG-FS-01-01 on DOE’s
Consolidated Financial Statements Report (Feb. 16, 2001) (re-
printed in DOE/CR-0071.)
128. See studies cited in note 124, supra.
129. The estimated cost for decommissioning and decontamination of
commercial nuclear facilities has been estimated at approximately
$100 billion. Gene R. Heinze, The Cost of Decommissioning U.S.
Reactors: Estimates and Experience, 12 Energy J. 87 (1991) (Spe-
cial Nuclear Decommissioning Issue).

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