NIMBY and Maybe: Conflict and Cooperation in the Siting of Low-Level Radioactive Waste Disposal Facilities in the United States and Canada

Beginning of article

     Waste Disposal Capacity in the United States          73
     A. Early Stages in American LLRW Management           74
     B. LLRW Regulations                                   76

C. Siting Gridlock: Problems With The Regional

        Compacts                                           81
        1. The California Case                             82
        2. Background on the Ward Valley Site              83
        3. Political Fallout                               85
     D. Where the Supreme Court Standards on LLRW Siting   88
     E. Future LLRW Capacity Assurance                     89
III. The Canadian Approach: Signs of Cooperation           90
     A. Early Stages in Canadian LLRW Management           94
     B. Port Hope and Siting Conflict                      95
     C. The Task Force and the Social Process              98
     D. Revising the Classification System                100
     E. Exploring Alternative Disposal Methods            101
     F. Defining the Social Process                       103
     G. Implementing the Social Process                   104
     H. Possible Site Volunteers                          109
IV.  When Siting Works                                    112
     A. Extensive Public Participation                    114
     B. Burden Sharing and Freedom from Exploitation      115
     C. Public-Private Partnerships                       116
V.   Transferring the Process to the United States        118
VI.  Game Theory and Facility Siting                      121

I. INTRODUCTION

The domestic use of nuclear materials has traditionally been characterized as a collective good. Millions of Canadians and Americans enjoy relatively inexpensive energy from nuclear power plants. Thousands benefit from the post-world War II application of nuclear technology to medicine. From the formation of national regulatory entities in both nations through the 1970s, few people in either nation challenged the conventional wisdom that massive federal government subsidies for the development of nuclear power and medicine were anything other than a worthy endeavor which served broad, collective goals.

That consensus has unraveled in recent years, in part because of the issue of radioactive waste disposal. Episodes such as Three Mile Island drew attention to the safety of facilities generating nuclear power, but the issue of waste disposal poses a separate set of challenges for both nations. Whereas nuclear power and nuclear medicine are perceived as collective goods, Canadians and Americans recognize radioactive waste as a threat to public health, environmental protection, and the economic stability of any community which might become contaminated.

This paper examines one aspect of radioactive waste, so-called "low-level" waste, and one aspect of the waste management problem, siting facilities for waste storage and disposal. In both Canada and the United States, the evolution of nuclear technology has followed similar patterns and comparable technical and political waste disposal problems have emerged. Facility siting and management has been transformed from a fairly consensual area of environmental policy in the 1960s and 1970s to a conflict ridden area in more recent years. Time and again, when either Canadian or American communities are confronted with the possibility of "hosting" a new waste disposal or storage facility, the political reaction is immediate and intense. This reaction has blocked construction of any new facilities in either nation.

This manifestation of the Not-In-My-Back-Yard (NIMBY) syndrome resembles the pattern exhibited with other types of waste disposal facilities, such as hazardous, solid, and biomedical wastes. This phenomenon offers some significant societal benefits, such as pressuring radioactive waste generators to explore alternative waste reduction or elimination methods. It also creates a more aware and involved citizenry on both sides of the 49th parallel. In an era in which both Canadians and Americans lament declining levels of political participation and a growing alienation from the political process, this energy and interest is heartening from the standpoint of democratic theory.(1)

However, blocking the construction of new facilities does not necessarily resolve serious waste storage and disposal policy problems. Even if no additional nuclear power plants are constructed in North America, generators will continue to produce substantial quantities of low-level radioactive waste.

Moreover, badly contaminated areas warrant careful cleanups (which involve relocating wastes) and existing facilities must be decommissioned. This complex and expensive process requires removing radioactive and non-radioactive materials. Ironically, while the United States has found itself unable to open any new facilities since the early 1970s, it has, on a de facto basis, created thousands of sites for storage and disposal, including the nuclear power plants and research facilities that generate these wastes. These facilities are widely acknowledged as unsuitable for long-term storage and disposal on both technical and equitable grounds.

The American and Canadian experiences are ripe for a comparative analysis of effectiveness. These nations nurtured their nuclear industries in similar ways and devised relatively similar regulatory structures during the early decades of development. They also encountered many similar siting problems in the late 1970s and early 1980s.

Nonetheless, the two neighboring nations took fundamentally distinct approaches to siting over the past several years and have experienced different outcomes. On the American side, a "topdown" method of site selection, whereby government or corporate officials use technical criteria to select a preferred site and disposal technology, consistently encountered tremendous political opposition. A variety of state governments, working independently or in "compact" clusters, have failed in facilitating serious public deliberation over siting options, much less in achieving any siting accords.(2)

On the Canadian side, abandoning a top-down strategy in favor of a voluntary approach has stimulated extensive public discussion of siting options in multiple communities in Ontario, where the vast majority of Canada's low-level radioactive waste is generated. This "bottom-up" approach has left the selection of sites and alternative storage and disposal technologies to participating Ontario communities. At present, five such communities remain active participants in these deliberations, and one or more of them may assume responsibility for "hosting" facilities in the years ahead.(3)

This comparative analysis of low-level radioactive waste facility siting is particularly intriguing given its direct linkage to the processes for siting hazardous waste disposal facilities. In both the United States and Canada, particularly in the provinces of British Columbia and Ontario, facility siting has proven contentious for both hazardous waste and low-level radioactive waste. Variation of the top-down approach, whether guided by government officials or for-profit waste disposal concerns, consistently meets strong public opposition.(4) Two visible exceptions to this pattern of opposition, Alberta in 1984 and Manitoba in 1992, employed a voluntary siting strategy to facilitate broad public deliberation and ultimately reached a widely supported siting accord.(5) Greensboro, North Carolina successfully used a similar approach in the mid-1980s, suggesting some transferability potential.(6) This general approach is extremely similar to the one currently being implemented for low-level radioactive waste in Ontario.

These exceptional cases of cooperation indicate that siting conflict is not inevitable. In both Alberta and Manitoba, as well as the early stages of the Ontario plan, the players set certain ground rules. Siting authorities saw their role as providing information and seeking volunteer communities, rather than imposing definitive siting decisions. Possible host communities were given every opportunity to raise questions, negotiate economic and regulatory compensation packages, and express their preferences for the type of storage or disposal technology to be used. They were also free to withdraw from further participation in the process at any time. Furthermore, the process allowed formal exploration of "burden sharing" among multiple communities, rather than assuming that a single site would accept all disposal or storage responsibility for an entire state, province or region.(7)

The ultimate viability and adaptability of this approach rests on the final outcome of the Ontario experiment. The American political system may indeed be impervious to such voluntary strategies, given its political culture and adversarial environmental policy traditions.(8) Nonetheless, the near total gridlock in low-level radioactive waste facility siting the United States indicates the desirability of looking abroad to consider other approaches. Given the hazardous waste facility siting accords in Alberta and Manitoba, Canada is an obvious first case for comparative analysis. Moreover, the strong similarities between American and Canadian environmental policy and the tradition of borrowing regulatory ideas suggests some possibility for diffusion across national borders. Indeed, a central premise of this article is that the main impediment to American adoption of the more voluntary, participative Canadian style approach is political rather than legal. Some states have, in fact, begun to experiment with this approach already, for both low-level radioactive and hazardous wastes, facing no serious legal obstacles because relevant legislation delegates most siting decisions to the individual states.(9)

This comparative case analysis draws heavily on interviews with approximately fifty key informants and a review of relevant government documents. Some direct attributions to interviewees are made, although other references are made in more general ways when guarantees of anonymity were provided. hi contrast, review of relevant academic literature proved far less useful. Relatively little has been published, in either Canada or the United States, on the Canadian low-level radioactive waste siting case. Much of the existing literature on the American experience examines the structure of the interstate compact process rather than probe the conflictive processes of implementation.(10) The lone source we encountered that directly compares the American and Canadian experiences is a 1992 book by Ray Kemp of the United Kingdom.(11) However, this analysis is limited to a basic description of the respective programs, as its primary contribution is an examination of the politics of radioactive waste disposal in Western Europe.(12)

This article is intended to begin to fill this significant gap and facilitate greater cross-border awareness of common environmental policy problems and options. It begins with an overview of the American experience in low-level radioactive waste disposal and examines in detail a recent siting conflict in California. Many observers argue that California was in the best position among the American states to reach some siting settlement. The seeming derailment of that process in 1993 underscores the severity of siting gridlock in the United States. Indeed, the remaining states give little indication of reaching any siting agreements in future years. This case will be followed by an analysis of the Canadian situation, placing particular emphasis on the development and implementation of the voluntary process. The article will conclude with a direct comparison between the American and Canadian experiences and some reflections on future policy and research options.

II. THE STRUGGLE, TO ENSURE LOW-LEVEL RADIOACTIVE WASTE DISPOSAL CAPACITY IN THE UNITED STATES.

Recent events lead a number of informed observers to question when, if ever, a new low-level radioactive waste disposal facility will be opened in the United States. The two states that were generally considered most likely to meet the legislatively mandated deadline of January 1, 1993 -- Illinois and California -- encountered serious political obstacles in 1992 and 1993.(13) Other states and compacts appear even further removed from any serious siting option deliberation, much less approaching final siting agreement. Even if another state or compact were miraculously to clear the stumbling blocks that felled other siting efforts, there would be little possibility of providing access to non compact generators requiring disposal facilities. Authority to exclude nonsignatories of regional compacts is one of the basic incentives of the current regional compact siting approach mandated by the Low-Level Radioactive Waste Policy Amendnents Act of 1985.(14) However, whether or not a go-it-alone state would have the same exclusionary authority remains an unanswered legal question.

The result of this siting gridlock is a growing number of "temporary" storage facilities scattered around the United States. In Michigan alone, more than fifty facilities are already in operation, ranging from nuclear power plants to university hospital laboratories.(15) Many of these are located in densely populated areas and were never designed for long term storage. indicate the number of these sites will soon be in the thousands, despite significant advances in volume reduction technology and the virtual halt in recent decades of new nuclear power facility construction.(16) In addition to the obvious regulatory problems of monitoring and enforcement, there is a compelling public health argument against de facto storage.

A. Early Stages in American LLRW Management

The Pacific and Atlantic Oceans served as repositories for United States low-level radioactive waste (LLRW) during the first three decades of its production. Following the enactment of the Atomic Energy Act of 1954,(17) many states began assuming responsibility for licensing and regulating radioactive waste.(18) Those states which entered into agreements with the United States Nuclear Regulatory Commission (NRC) to regulate certain types of radioactive materials, including LLRW, became known as "agreement states" -- a classification that remains in use.

The major sources of commercial LLRW include nuclear power plants, biomedical and industrial research, and nonmilitary government projects. In most states, the vast majority of wastes come from nuclear power plants, many of which were built in the 1960s and are approaching the end of their useful lives. When these plants close, they no longer generate waste but must be "decommissioned." This entails decontaminating the plant (removal of radioactive material) and dismantling plant (removal of nonradioactive material), thereby creating an entirely new type of LLRW disposal problem. The em of United States commercial land waste disposal began in 1962 with the opening of the first disposal facility in Beatty, Nevada. By 1971, five other commercial sites had opened in Richland, Washington; Maxey Flats, Kentucky, West Valley, New York, Barnwell, South Carolina and Sheffield, IIlinois. Only Illinois lacked NRC "agreement state" status.(19) All six facilities used "first generation" shallow land burial technology, which consisted of burying waste packages in trenches, usually about thirty feet deep, and covering with several feet of dirt.(20)

The Maxey Flats and West Valley disposal sites were closed prematurely in the mid-1970s after media-reported discoveries of leaking radioactive materials.(21) Maxey Flats was operated by Nuclear Engineering Company (NECO), a Louisville, Kentucky based firm. Nuclear Fuel Services operated the West Valley, New York site. The Sheffield facility was closed in 1978 after the site operator, U.S. Ecology, experienced lengthy license renewal delays. After its closure, problems developed at Sheffield due to water infiltration.(22)

In 1986, the United States Environmental Protection Agency designated Maxey Flats a federal Superfund site, adjudging it to be among the most severely contaminated sites in the nation.(23) The West Valley site was stabilized in the early 1980s after radioactive leachate was discovered on the site.(24) A final environmental impact statement is scheduled to be released on the West Valley site in late 1994.(25)

The widely reported contamination incidents at Maxey Flats and in West Valley, and the Chemobyl and Three Mile Island nuclear accidents, in combination with increased public environmental degradation concerns may make LLRW siting efforts the biggest Not-in-My Backyard (NIMBY) issue ever.(26) As a result, no new LLRW disposal sites have opened since 1971 and none seem likely to be established in the next few years.

B. LLRW Regulations

Inadequate waste separation and packaging was the most significant factor in the contamination at West Valley, Maxey Flats, and Sheffield.(27) Early operating practices and specific siting characteristics also contributed to each site's problems.(28) Learning from these incidents, in 1983 the NRC issued new regulations imposing stringent new regulatory requirements on operators for the licensing and operation of commercial LLRW disposal facilities.(29) In addition to specific technical requirements, the regulations outlined four performance objectives for LLRW disposal facilities:

(1) Protection of the general population from radioactive

releases;

(2) Protection of inadvertent intruders;

(3) Protection of facility operators, and;

(4) Stability of disposal site after closure.(30) Although no uniform manifest system has been mandated by the NRC to track LLRW, the different manifests used by United States generators and disposal companies must comply with the regulations.(31)

The 1983 NRC rules define low-level radioactive waste as "radioactive waste not classified as high-level radioactive waste, transuranic waste, spent nuclear fuel, or byproduct material."(32) Class A wastes, considered the least risky, comprise over 95 percent of the entire volume of LLRW annually; they will decay to acceptable hazard levels in 100 years or less.(33) Class B wastes decay to minimally risky levels within 100 years, but have more stringent waste form and packaging requirements.(34) By contrast, Class C wastes, which mainly comprise irridiated reactor components, have a 100-year or longer hazard life.(35)

In 1989, the Barnwell facility in South Carolina received sixty eight percent

of all commercial waste generated by volume (cubic feet) and eighty four percent of all waste by radioactivity-- in Curies (Ci). The Richland, Washington and Beatty, Nevada sites received, respectively, twenty five percent and seven percent of all commercial LLRW received by the three sites by volume and eleven percent and five percent by radioactivity.(36) In 1989, total volumes of commercial waste by category were: 1,575,349 cubic feet of Class A waste (28,639 Ci), 35,950 cubic feet of Class B waste (161,235 Ci), and 16,514 cubic feet of Class C waste (677,032 Ci).(37) In 1990, a total of 1,142,810 …