Audeen W. Fentiman
Tamara L. Leyerle
Ronald J. Veley
Between 1978 and the end of 1992, commercial low-level radioactive waste was disposed of at one of three operating disposal facilities in the United States: Beatty, Nevada; Richland, Washington; and Barnwell, South Carolina. In 1979, the governors of Nevada and Washington temporarily closed their facilities to generators of low-level radioactive waste outside their own state boundaries. They threatened permanent closure if the federal government did not make provisions for future low-level radioactive waste disposal and a more equitable distribution of disposal responsibility. Consequently, in 1980, Congress enacted the Low-Level Radioactive Waste Policy Act, which required states to take responsibility for disposal of their own commercial low-level waste. In 1985, Congress extended the deadline for providing disposal capacity and added incentives to encourage states to comply with the act by passing the Low-Level Radioactive Waste Policy Amendments Act. This fact sheet discusses the law that governs low-level waste disposal in the United States.
In 1979 the governors of Nevada and Washington believed that they should not have to bear forever the burden of low-level radioactive waste disposal for the entire country, and temporarily closed their disposal facilities. Following the action by Nevada and Washington, the National Governors' Association held meetings to discuss low-level waste disposal. The result was a proposal which led to the 1980 passage of the Low-Level Radioactive Waste Policy Act. The Act made states responsible for disposing of their own low-level radioactive waste and set forth the federal policy that waste disposal is best handled on a regional basis.
The Low-Level Radioactive Waste Policy Act encouraged states to form interstate compacts, or regional associations of states, for the purpose of low-level radioactive waste disposal. States that are not members of any compact are often referred to as unaffiliated states. At present, nine regional compacts have been formed and approved by Congress (see Figure 1). A tenth compact was being formed in mid-1993. Each compact must either designate a host state to be the first state in which the compact's disposal facility will be located or must otherwise provide for disposal of the waste (for example, through a contractual arrangement with another compact). The host state will take waste from all the compact states for a designated period of time (usually twenty years), after which another state must build and operate a facility.
To encourage states to join compacts, the Low-Level Radioactive Waste Policy Act allowed compacts approved by Congress to exclude, or refuse, all low-level radioactive waste generated outside the boundaries of the compact. If an unaffiliated state builds a disposal facility, it does not have Congressional authority to exclude waste from other states.
Ohio is part of the Midwest Compact along with Indiana, Iowa, Minnesota, Missouri, and Wisconsin. Michigan was originally designated as the Midwest Compact host state, but was expelled in 1991 after the Compact concluded that Michigan did not intend to fulfill its obligation as host state. When Michigan's membership was revoked, Ohio became the new host state.
Figure 1. Regional Low-Level Radioactive Waste Compacts (and Unaffiliated States)
After passage of the Low-Level Radioactive Waste Policy Act in 1980, all states attempted to meet the Act's requirements that they provide for disposal of their own low-level radioactive waste. The Act had established January 1, 1986, as the deadline after which a compact could exclude waste generated outside of its boundaries. However, it soon became clear that only the compacts with existing disposal facilities would be able to have a waste disposal facility in operation by the deadline. The National Governors' Association sent another proposal to Congress, which led to the passage of the Low-Level Radioactive Waste Policy Amendments Act of 1985.
The Low-Level Radioactive Waste Policy Amendments Act extended the operation of the three existing disposal sites to December 31, 1992. After that time the three sites could close or exclude waste from outside the compacts in which they were located. The Amendments Act also set up strong incentives to encourage states without sites for disposal facilities to site, license, and construct facilities. Compacts and states without sites when the 1985 Amendments Act was passed faced rising disposal charges for using existing disposal facilities. They also had to meet specific milestones in order to maintain access to the present facilities (see Table 1) .
|Table 1. Federal Milestones for New Disposal Sites|
|January 1986 States must enact compact or state legislation to prove their intent to develop their own disposal sites.|
|January 1988 Regional compacts without sites for disposal facilities must designate a host state, and host states and unaffiliated states must have developed a plan for locating and constructing a facility.|
|January 1990 Regional compacts or unaffiliated states must file a license application for a disposal facility or states must submit a certification by their governors that states will be capable of managing waste after January, 1993, until disposal capacity is available.|
|January 1992 Regional compacts and unaffiliated states without sites for disposal facilities must file a license application for a disposal facility or pay a penalty surcharge.|
|January 1993 Regional compacts and unaffiliated states without sites for disposal facilities must provide for disposal of all low-level radioactive waste generated within their borders or forfeit surcharge rebates.|
|January 1996 Regional compacts and unaffiliated states without sites for disposal facilities must provide for disposal of all low-level radioactive waste generated within their borders.|
An important aspect of the 1985 Amendments Act is that it defines a "compact" as an association, approved by Congress, between two or more states. An unaffiliated state may not form a compact by itself and does not have Congressional authority to exclude waste from outside its boundaries. The most controversial provision in the 1985 Amendments Act was the "take title" provision. The provision required states that were unable to provide for disposal capacity by the final milestones, to take legal title to (ownership of) all low-level radioactive waste generated within their borders at the request of the waste generator. This portion of the Act was found unconstitutional by the Supreme Court of the United States on June 19, 1992, after New York State and two of its counties filed suit to challenge the constitutionality of the 1985 Low-Level Radioactive Waste Policy Amendments Act. The Supreme Court ruled that all other parts of the Act are constitutional and may be legally enforced.
On January 1, 1993, the three states with operating disposal facilities were no longer required to continue accepting low-level radioactive waste from outside the borders of their compacts. On that date, Nevada closed its disposal facility. Washington continued to operate its disposal facility, but accepted waste only from the Northwest and Rocky Mountain Compacts. South Carolina has agreed to continue accepting low-level waste from some states outside of their compact, including Ohio, until June 30, 1994.
If you want to read more about the laws governing the disposal of low-level radioactive waste, some of the references and the fact sheet listed below may be helpful.
Public Law 99-240, "Low-Level Radioactive Waste Policy Amendments Act", 1985.
The State of New York, the County of Allegheny, New York, and the County of Cortland, New York v. United States et al. 112 S.Ct. 2408 (Decided June 1992).
RER-66 Factors that affect the cost of low-level radioactive waste disposal
Dr. Audeen W. Fentiman is an Assistant Professor in Nuclear Engineering at The Ohio State University. Tamara L. Leyerle is a Graduate Research Associate, Ohio State University College of Law. Ronald J. Veley is a Graduate Research Associate, Ohio State University Extension.
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