Order Code RS21988
Updated January 23, 2006
CRS Report for Congress
Received through the CRS Web
Radioactive Tank Wastes: Disposal Authority
in the Ronald W. Reagan National Defense
Authorization Act for FY2005
David Bearden and Anthony Andrews
Resources, Science, and Industry Division
Aaron M. Flynn
American Law Division
Summary
How to safely dispose of waste from the production of nuclear weapons has been
an ongoing issue. The most radioactive of these wastes are stored in underground tanks
at Department of Energy (DOE) sites in Idaho, South Carolina, and Washington state.
There have been concerns about soil and groundwater contamination from some of the
tanks that have leaked. DOE proposed to remove the liquid waste, classify the sludge-
like remainder as “waste incidental to reprocessing,” and seal it in the tanks with a
cement grout. DOE has argued that closing the tanks in this manner would be a cost-
effective and timely way to address environmental risks. Questions have been raised as
to how much waste would be left in the tanks and whether the grout would contain the
wastes and prevent leaks. After considerable debate, the 108th Congress included
provisions in the Ronald W. Reagan National Defense Authorization Act for FY2005
(P.L. 108-375) authorizing DOE to grout some of the tank wastes in place in Idaho and
South Carolina. Congress did not provide such authority in Washington state. This
report provides background information on the disposal of tank wastes, analyzes waste
disposal authority in P.L. 108-375, and examines potential implications for
environmental cleanup. It will be updated as developments warrant.
Background
DOE is responsible for managing defense nuclear waste and cleaning up
contamination at sites involved in the past production of nuclear weapons. Among these
challenges are the management and disposal of radioactive waste stored in underground
tanks at sites in three states: Hanford in Washington, Savannah River in South Carolina,
and the Idaho National Laboratory (INL). The production of radioactive materials for
nuclear weapons generated 53 million gallons of radioactive waste that was stored in 177
tanks at Hanford, 37 million gallons in 49 tanks at Savannah River, and nearly 1 million
gallons in 11 tanks at the INL. Some of these tanks are deteriorating, and are known or
Congressional Research Service ˜ The Library of Congress

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suspected to have leaked, contaminating soil and groundwater. Of greatest concern are
the tanks at Hanford, 67 of which are known or suspected to have leaked radioactive
waste that has migrated through groundwater into the Columbia River. At this time,
monitoring data indicate that the level of radionuclides in the Columbia River meets
federal and state water quality standards. There are similar concerns about possible
contamination of the Snake River in Idaho and the Savannah River in South Carolina.
How to decommission (i.e., close) the tanks in a cost-effective and timely manner
that mitigates environmental risk and potential exposure of workers has been the subject
of controversy. DOE argues that removing all of the tank wastes would take too long to
respond to environmental risks from leaking tanks. DOE favors pumping out the liquid
waste and immobilizing (i.e., binding up) the sludge-like residual waste by filling the
tanks with a cement grout to prevent leaks, arguing that this would be the best method to
reduce immediate risks. The waste removed from the tanks that is classified as “high-
level” would be stored for future disposal in a centralized geologic repository (such as
Yucca Mountain in Nevada), discussed below. Questions have been raised as to how
much waste would be left in the tanks, and whether the grout would thoroughly mix with
the remaining waste to solidify it and contain it safely to prevent leaks.
Although removing all of the wastes from the tanks would eliminate the risk of
contamination, this alternative poses other risks and challenges. DOE argues that
methods to extract the residual waste after the liquid waste is pumped out would generate
a new hazardous waste stream that would need to be managed and disposed of safely to
protect the environment. DOE also asserts that there would be significant risks of
exposure to workers who would remove the residues, and manage and dispose of the
resulting new waste stream. Once a tank is cleaned, there also would be additional risks
to workers who would extract the tank from the ground, and there would be
environmental risks from the management and disposal of the contaminated tank metal.
Applicability of the Nuclear Waste Policy Act
How to dispose of the tank wastes is further complicated by the legal issue of how
much of the waste is “high-level.” Under the Nuclear Waste Policy Act of 1982 (NWPA),
high-level radioactive waste must be disposed of in a centralized geologic repository.1
Consequently, the tank wastes classified as high-level must be removed from the tanks,
processed, and stored for disposal in such a repository. In July 1999, DOE issued internal
agency Order 435.1 to classify residual tank wastes as “waste incidental to reprocessing,”
rather than as high-level.2 In effect, this order would exempt the residual tank wastes
from NWPA requirements for disposal in a geologic repository. DOE proposed to
dispose of the residual tank wastes at Hanford, Savannah River, and the INL by grouting
them in place, as discussed above. Sealing off a tank using this method would depend on
state concurrence, as DOE must obtain a permit from the state where the tank is located
before it can be closed with no further action to be taken.
1 42 U.S.C. 10101 et seq.
2 Department of Energy, DOE Order 435.1: Radioactive Waste Management. For further
discussion, see CRS Report RL32163, Radioactive Waste Streams: An Overview of Waste
Classification for Disposal, by Anthony Andrews.

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DOE grouted residual wastes in two tanks at the Savannah River site in 2000 with
state concurrence. Subsequently, DOE issued a Record of Decision to apply Order 435.1
to the closure of the remaining 49 tanks at the site, and to grout the residual tank wastes
that it classified as incidental to reprocessing.3 The Natural Resources Defense Council
(NRDC) legally challenged DOE’s authority to dispose of the wastes in this manner. The
State of South Carolina and others filed as “friends of the court,” due to concern that
states would not have a role under Order 435.1 in determining how much of the residual
waste would be left in the tanks. In 2003, a federal district court determined that DOE
does not have the legal authority to classify any of the tank wastes as other than high-
level, nor to dispose of them permanently on site through grouting or other means.4
DOE appealed the 2003 ruling, and on November 5, 2004, the U.S. Court of Appeals
for the Ninth Circuit reversed the above district court opinion, ruling that the challenge
to Order 435.1 was not “ripe” for review.5 Ripeness is a prudential judicial doctrine based
on the case or controversy requirement of Article III of the U.S. Constitution; in short, for
a case to be ripe, there must be a present injury or significant threat of imminent injury.6
The court found that the district court decision predated DOE application of Order 435.1
to a particular situation, and, thus, there was no present conflict with the NWPA.7 The
court determined that while it was possible that DOE might violate the NWPA at some
point, it might just as likely comply with all applicable law.8 Thus, under the terms of the
circuit court opinion, DOE may engage in activities pursuant to Order 435.1, and NRDC
or others then would be free to bring suit if they believe those activities violate the law.
Congressional Action
Prior to the appeals court decision, DOE had asked Congress to enact legislation to
clarify its authority for Order 435.1 and allow it to proceed with the grouting of tank
wastes at Hanford, Savannah River, and the INL. After considerable debate, the 108th
Congress included provisions in Section 3116 of the Ronald W. Reagan National Defense
Authorization Act for FY2005 (P.L. 108-375, H.R. 4200) that authorized DOE to classify
tank wastes in South Carolina and Idaho as incidental to reprocessing and to grout them
in place. Congress did not provide this authority in Washington state, where most of the
leaking tanks are located. Although the waste disposal authority provided in P.L. 108-375
is permanent, unless repealed by Congress, funding to implement it is subject to annual
authorization and appropriation. (For a discussion of recent appropriations, see CRS
Report RL32852, Energy and Water Development: Appropriations for FY2006, “Disposal
of Tank Wastes” section.)
3 67 Federal Register 160, August 19, 2002.
4 NRDC v. Abraham, 271 F. Supp.2d 1260, 1266 (D. Idaho 2003).
5 NRDC v. Abraham, No. 03-35711, 2004 WL 2480949 (Nov. 5, 2004).
6 See, e.g., Nat’l Park Hospitality Ass’n v. Dep’t of the Interior, 538 U.S. 803, 807-08 (2003).
7 NRDC, slip op. at 3.
8 Id. at 4.

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Waste Disposal Authority in P.L. 108-375
Section 3116(a) of P.L. 108-375 authorized the Secretary of Energy, in consultation
with the Nuclear Regulatory Commission (NRC), to classify tank wastes in South
Carolina and Idaho as other than high-level, upon making certain determinations. These
determinations are (1) that the waste “does not require permanent isolation in a deep
geological repository,” as is required for high-level waste, and (2) that highly radioactive
radionuclides have been removed from the waste to the “maximum extent practical.”
Assuming the waste meets these two requirements, the Secretary must then determine if
the radioactivity of the waste will exceed concentration limits for Class C low-level
waste.9 Whether or not the concentration exceeds allowable levels, the waste could be
disposed of according to the performance objectives for the disposal of Class C low-level
waste.10 Such disposal also would be subject to a state-approved closure plan and state-
issued permit authorized under other law. However, if concentration levels exceed those
for Class C waste, the Secretary must develop a plan for the disposal of such waste in
consultation with the NRC, in addition to meeting the aforementioned requirements
regarding Class C performance objectives, and state closure plans and permits.
In effect, Section 3116(a) authorized DOE to grout residual tank wastes if it consults
with the NRC and meets the performance objectives for disposal of Class C waste,
whether or not the concentration of radionuclides exceeds Class C amounts. These
performance objectives require “reasonable assurances” that concentrations of radioactive
materials that may be released into the environment do not result in human exposure to
specific levels of radiation.11 The ability of the grout to accomplish this objective would
depend primarily on the extent to which it mixes with the residual wastes to prevent leaks
from the tank. However, even if a tank leaks, the performance objectives could still be
met if the radioactivity decays to allowable levels before contamination migrates and
results in human exposure. The objectives also require that protection of individuals from
inadvertent intrusion be ensured after active institutional controls are removed. Sealing
the tanks with a cement grout arguably would provide a barrier to intrusion, and
institutional control of the grouted tanks by DOE presumably would continue as long as
the Savannah River site and the INL remain operational as federal facilities. Although the
grouting of the residual wastes also would be subject to state approval of the tank closure
plan and to the issuance of a state closure permit, the authority of the state is limited to
the hazardous component of the wastes.12 Thus, the state presumably would not have the
authority to reject a closure plan or deny a permit, based on objections to the radioactivity
left in the tank, as long as the above performance objectives are met.
Section 3116(b) required the NRC, in coordination with the States of Idaho and
South Carolina, to monitor DOE’s implementation of the above authority. If the NRC
9 10 C.F.R. 61.55. Low level waste suitable for near surface disposal is classified according to
Class A, B, and C. Class C contains the greatest concentration of radionuclides.
10 10 C.F.R. 61, Subpart C.
11 Limits of human exposure are specified as an annual dose of 25 millirems to the whole body,
75 millirems to the thyroid, and 25 millirems to any other organ.
12 There is court precedent regarding the lack of state authority to regulate radionuclides. For
example, see United States v. Commonwealth of Kentucky, 252 F.3d. 816 (6th Cir. 2001).

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determines that DOE is not in compliance, it is directed to inform DOE, the state, and
committees of Congress, including the House Committees on Armed Services, Energy
and Commerce, and Appropriations, and the Senate Committees on Armed Services,
Energy and Natural Resources, Environment and Public Works, and Appropriations.
Section 3116(b) also required DOE to reimburse the NRC for expenses, including
salaries, that are incurred in performing its monitoring duties for FY2005. In future years,
the NRC is required to include such expenses in its annual budget request.
Section 3116(c) clarified that the waste classification authority in subsection (a)
would not apply to any material transported outside of covered states, which are defined
as Idaho and South Carolina in Section 3116(d). In effect, the law does not allow DOE
to reclassify waste shipped out of South Carolina or Idaho as “incidental to reprocessing”
and to dispose of it as low-level waste in other states. The law therefore clarifies that any
waste shipped out of South Carolina or Idaho after the enactment of this statute would
continue to be subject to disposal requirements that initially applied to the waste based
on its original classification.
Section 3116(e) addressed the effect of the entire section on other laws and
regulations and their application within Idaho and South Carolina. The provision stated
that the authority in Section 3116(a) shall not “impair, alter, or modify the full
implementation of any Federal Facility Agreement and Consent Order or other applicable
consent decree” for a DOE site. These documents specify federal and state requirements
applicable to waste disposal and cleanup, and establish legally binding time frames for
disposal and cleanup actions. Thus, it appears that Section 3116 leaves the existing
agreements for Savannah River and the INL intact, and would not permit DOE to leave
more waste in the tanks than previously agreed to. Other provisions in Section 3116(e)
clarified that the authority in subsection (a) is binding only in Idaho and South Carolina
and that it did not override certain other statutes relevant to waste disposal.
Section 3116(f) clarified the availability of judicial review under the Administrative
Procedure Act (APA).13 The APA grants any person “suffering legal wrong because of
agency action, or adversely affected or aggrieved by agency action” the right to judicial
review of agency action. Section 3116(f) subjected to judicial review “any determination
made by the Secretary or any other agency action taken by the Secretary pursuant to this
section,” as well as any failure of the NRC to carry out its monitoring and reporting
responsibilities.14 Under the APA, courts may overturn final agency actions that are (1)
contrary to law or a constitutional protection, (2) beyond statutory power, (3) not
consistent with applicable statutory or regulatory procedures, or (4) unsupported by
substantial evidence. However, environmental organizations have expressed concern that
the opportunity for citizen suits may be restricted, if public notice of agency actions is not
provided. Although Section 3116 did not require public notice of determinations
13 5 U.S.C. 701-706 (judicial review provisions).
14 Under the APA, judicial review must await a “final” agency action or “[a]gency action made
reviewable by statute ....” (5 U.S.C. 704). To be “final,” an action must “mark the consummation
of the agency’s decisionmaking process,” and must determine “rights or obligations” or give rise
to “legal consequences.” Bennett v. Spear, 520 U.S. 154, 177-178 (1997). However, P.L. 108-
375 specifies that DOE’s actions are reviewable in court. Thus, it would appear that even if such
actions would not qualify as “final” under the above, judicial review would remain available.

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regarding waste classification and disposal, DOE may be required to provide it under
other federal laws, such as the National Environmental Policy Act and the APA. The
disposal of the tank wastes is also subject to a state-approved closure plan, the preparation
of which may provide opportunity for public notice under state law.
Section 3146 also authorized DOE to arrange for the National Academy of Sciences
(NAS) to study the radioactive and hazardous characteristics of the tank wastes at
Savannah River, the INL, and Hanford; DOE’s plans to dispose of and monitor these
wastes; and alternatives for disposal. The NAS released its interim report in August
2005,15 focusing on the Savannah River site, and expects to complete the final report
addressing all three sites in 2006. In its interim report, the NAS recommended that DOE
should consider waiting 5 to 10 years before grouting tanks with significant residual waste
to allow time for the development of more advanced waste retrieval technologies that
could result in less waste being left in the tanks upon closure. The NAS recommended
that DOE weigh the risks of postponing the closure of these tanks in order to wait for
more effective technologies to emerge, versus the risks of grouting the tanks earlier before
better technologies are available and having to leave more waste in place.
Potential Implications for Environmental Cleanup
DOE estimates that the cleanup of the Savannah River site will be complete in 2025
at a cost of $30.6 billion, and at the INL in 2035 at a cost of $15.1 billion. The disposal
of the tank wastes at these sites is among the greater challenges to completing cleanup,
along with remediation of existing soil and groundwater contamination. The authority in
Section 3116 has implications in terms of cost and pace of cleanup. In 2002, DOE
estimated that grouting residual tank wastes at the Savannah River site would cost
between $3.8 million and $4.6 million per tank, compared to a cost of greater than $100
million per tank to remove and dispose of all of the waste, and to clean and remove the
tank.16 The per tank closure costs at the INL likely would be lower, because the tanks
there contain less waste than those at the Savannah River site. In addition to potential
cost savings, closing the tanks by grouting the residual wastes arguably would be faster
than removing, treating, and disposing of them by other means.

There also are implications in terms of environmental risk. If the grout is effective
in solidifying the residual wastes and containing it safely in the tanks, this disposal
method could provide a less costly and faster means of closing the tanks. On the other
hand, if the grout does not mix thoroughly with the waste left in the tanks, the possibility
of future leaks and resulting environmental contamination remains. In such event, DOE
would be liable for remediating resulting contamination according to applicable federal
and state requirements. Depending on the extent of contamination and remedial actions
selected to address it, the time and costs to clean up contamination from tanks that may
continue to leak could offset the initial savings from grouting the residual wastes.
15 For the full text of the NAS interim report, see [http://books.nap.edu/catalog/11415.html].
16 DOE, Savannah River Site High-Level Waste Tank Closure Final Environmental Impact
Statement, DOE/EIS-0303, May 2002, p. S-21.

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