DOE bid to redefine high-level radioactive waste fails

By Kathy Helms-Hughes
There's more than one way to speed cleanup at the U.S. Department of Energy's nuclear weapons complexes. One is to eliminate tens of thousands of gallons of "high-level radioactive waste" with the stroke of a pen, simply by changing its definition.
Congress could vote later this month on a national energy bill, but for now, the Energy Conference Committee is in the process of ironing out differences in separate U.S. House- and Senate-backed versions. The committee is expected to draft a compromise version and send it back to the House and Senate for final passage.
After losing a bid in federal district court this past summer to reclassify high-level radioactive waste, the U.S. Department of Energy asked members of the Energy Conference Committee to change the definition in the final version of the energy bill.  
According to U.S. Rep. Jay Inslee, D-Wash., neither the House nor the Senate supported the change, and no hearings took place. "Any insertion of a controversial definition change at this point would be an effort to change public policy under-the-cover-of-night, because neither the House nor the Senate would have a chance to debate this change before voting on whether to pass the energy bill," Inslee said in a press release.
On Thursday, an Inslee-Spratt Motion to Instruct the Energy Conference Committee to prevent weakening high-level radioactive waste protections received unanimous approval in the House. The motion, sponsored by Inslee and Rep. John Spratt Jr., D-S.C., was a "motion to instruct" members of the committee to stay within the scope of the conference with regard to the legal definition of "high-level radioactive waste." U.S. Sen. Patty Murray has been leading efforts in the Senate to stop the change in definition.
Under existing law, known as the Nuclear Waste Policy Act, wastes from reprocessing irradiated or "spent" nuclear fuel are known as "high-level radioactive waste." The law requires these type wastes be disposed in a Nuclear Regulatory Commission-licensed high-level radioactive waste repository, such as the one proposed for Yucca Mountain in Nevada.
Changing the definition would allow DOE to save potentially billions of dollars in cleanup costs by covering underground waste tanks with concrete and leaving them in place. Inslee, who is opposed to DOE's efforts to change the definition, said it would cause waste currently considered "high-level" to instead be considered "low-level."
Inslee's home state of Washington is home to DOE's Hanford Site, a 586-square-mile plutonium production complex located along the Columbia River. Hanford played a pivotal role in the nation's defense, beginning with the Manhattan Project. Today, it is a DOE cleanup challenge, with more than 50 million gallons of high-level liquid waste in 177 underground storage tanks, 2,300 tons of spent nuclear fuel, 12 tons of plutonium in various forms, about 25 million cubic feet of buried or stored solid waste, and about 270 billion gallons of groundwater contaminated above drinking water standards.
Inslee said that while high-level waste at Hanford must be treated and removed to a repository, low-level waste could be kept in the ground on-site indefinitely.
Diane D'Arrigo of Nuclear Information and Resource Service (NIRS) in Washington, D.C., said though Inslee's motion passed, the possibility that DOE could reclassify high-level waste to "waste incidental to reprocessing" is still a threat, "but presumably not in this energy bill."
When irradiated fuel is reprocessed, liquid and sludge wastes are put into underground tanks, D'Arrigo said. "There are four places where this was done. West Valley, N.Y., [operated by Nuclear Fuel Services Inc. of Erwin, Tenn.] was the only commercial reprocessing facility. NFS eventually left, with no liability, and DOE was brought in to do the solidification.
"The other three sites were all DOE through-and-through and were in Idaho, Washington, and South Carolina as part of the weapons complex," she said. "The high-level liquid and sludge that are in the tanks, and the tanks themselves, under the Nuclear Waste Policy Act are defined as high-level waste. ... DOE wanted to just leave it -- grout it in the ground," D'Arrigo said, but under current law, the waste must be treated and disposed in a high-level waste repository.
"DOE moved to redefine the waste as waste 'incidental' to reprocessing," so that it no longer fell within high-level waste requirements, D'Arrigo said. This past summer, the Natural Resource Defense Council (NRDC), Snake River Alliance and several other organizations, with amicus briefs from some state attorneys general, went to court to challenge DOE's attempt to reclassify the waste and won.
Geoffrey Fettus, staff attorney for NRDC, said changing the definition would not amount to monetary savings for DOE. "In fact, we think it would cost more money to not do the cleanup right, because long term, DOE would be spending more money on monitoring these sites in perpetuity," he said Thursday.
"DOE could allege that they have a short-term cost savings by not having to clean up the waste. Long-term, we would have massive nuclear sacrifice zones that would be catastrophic to public health. This high-level waste would be abandoned next to important water supplies in the Southeast and the West," Fettus said. "I think we as a country would incur more costs if DOE's proposal had gone into law."
DOE lost a battle to NRDC this summer in Idaho Federal District Court. "They created for themselves an internal order to reclassify the waste -- and that is what we sued them over and won," Fettus said. DOE has appealed that loss to the 9th Circuit.
"DOE's legislative proposal to Congress was designed to legislatively reverse their loss in court," Fettus said. Had the definition change gone through, DOE could have reclassified the waste, covered it with concrete, and said, "'It's done.' But it wouldn't be cleanup in reality. It would just be 'rhetorical' cleanup," Fettus said.
"We are all for cheaper and faster cleanup, but we're also for thorough and real cleanup that's protective of public health," he said.
Critics believe the reclassification could have enormous impact for several states and for the federal budget. For this reason, Fettus said, "This kind of issue should not be done behind closed doors in a conference committee where there have been no hearings, no involvement from the states, no involvement from affected tribes, no involvement from the public.
"All Insley's motion did was say, 'Don't bring this up in conference. If you're going to do anything about it, let's do it the right way so everybody can have a seat at the table ...'"
Fettus said NRDC wants to ensure that "if Congress is going to take up an issue that significant and controversial, it will do so in an open and deliberative process, rather than hidden behind conference."