Background | Congress Takes Action | The Northeast Compact | The Siting Board | Volunteers | Into the Future

IN DECEMBER 1987, THE NEW JERSEY legislature passed the Regional Low-Level Radioactive Waste Disposal Facility Siting Act. This legislation, which was sponsored by then-Assemblyman John Bennett (R-Monmouth), garnered bipartisan support and was signed into law by Governor Tom Kean. It was adopted to meet the mandate of federal legislation giving states responsibility for the commercial low-level radioactive waste generated within their borders that required special disposal.

The Siting Act created the Siting Board and the New Jersey Radioactive Waste Advisory Committee, each of which is comprised of unpaid volunteers selected by the Governor with the ratification of the Senate. The quasi-independent Board was given the statutory responsibility to find a site, choose a disposal technology and site operator, and oversee the construction, operation, and eventual closure of the facility. The Advisory Committee was charged with providing objective and independent advice to the Board, and reviewing all matters related to siting and developing a facility. Amendments to the Act in 1991 authorized the Board to assess and collect fees from generators of low-level radioactive waste in New Jersey to cover the costs of planning, siting, and developing a disposal facility. It was envisioned that generators would also pay all costs related to operating and closing the facility, including monitoring and protection measures, and the compensation and benefits that were to be given to the host community.

Background

In the earliest years of the development of nuclear technologies, disposal of radioactive waste was the responsibility of the Atomic Energy Commission, the predecessor agency to the federal Department of Energy and the Nuclear Regulatory Commission. In the 1950s, several companies had also been licensed to dispose of commercially generated low-level radioactive waste at sea.

With the growth of non-military applications of nuclear technologies, the AEC announced in 1960 that "regional" land disposal sites for commercially generated low-level waste should be established by the private sector. The sites would be located on government-owned land and would be licensed and regulated by government agencies.

In response to this policy, six commercially operated shallow-land disposal facilities were licensed and operated in the United States-in Beatty, Nevada; Maxey Flats, Kentucky; West Valley, New York; Richland, Washington; Sheffield, Illinois; and Barnwell, South Carolina. The Beatty facility, which opened in 1962, was the first to begin operations; the Barnwell facility, opened in 1971, was the last. Three of the facilities (Maxey Flats, West Valley, and Sheffield) closed in the late 1970s. Water management problems led to the closing of West Valley in 1975 and Maxey Flats two years later; in 1978, Sheffield was closed after the operator experienced lengthy delays with its NRC license renewal; Sheffield’s operator had requested an increase in the lifetime and capacity of its original 20-acre tract, a request that was denied by the NRC because of the discovery of far more permeable sand and other coarse-grained deposits than had been found in the original site investigation. The Beatty facility closed to radioactive waste in December 1992 in accordance with an agreement between the Governor of Nevada and the Rocky Mountain Compact Board.

The problems experienced in the developmental years of commercial low-level waste disposal led to the recognition that the regulations controlling the licensing of radioactive materials did not contain sufficient technical standards or criteria. More comprehensive standards, technical criteria, and licensing requirements were needed for the selection of disposal site locations, the form and characteristics of waste allowed for disposal, and operational practices.

In 1982, the NRC added a new part to Title 10 Code of Federal Regulations: Part 61, Licensing Requirements for Land Disposal of Radioactive Wastes. This regulation established a series of performance objectives and technical and financial requirements which a disposal site and site operator must meet in order to ensure public health, safety, and long-term protection of the environment. The regulation established four performance objectives: to protect the general population from releases of radioactivity; to protect workers during site operations; to protect any individual who inadvertently enters a disposal site after the site is closed; and to ensure long-term stability at disposal sites to eliminate the need for ongoing active maintenance after closure.     top

Congress Takes Action

In the late 1970s, the National Governors’ Association and the Congress began to look into the disposal situation at the urging of the governors of Washington, Nevada, and South Carolina. In 1979, the governors of Washington and Nevada temporarily closed their states’ facilities to waste generated outside their borders, and 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, Congress enacted the Low-Level Radioactive Waste Policy Act of 1980, 42 U.S.C. Sec. 2021b et seq., which made states responsible for disposing of their own commercial low-level waste and set forth the federal policy that waste disposal is best handled on a regional basis. This waste does not include low-level radioactive waste produced by the U. S. Department of Energy or waste generated by the federal government from the production of nuclear weapons. Nor does it include low-level radioactive waste that has the highest concentrations of radioactivity. Disposal responsibility for all of these wastes rests with the federal government.

Recognizing that the critical issues were access as well as equity, the Act also encouraged states to enter into regional alliances, or "compacts," for the purpose of siting disposal facilities, and established January 1, 1986 as the deadline after which a compact could exclude waste generated beyond its boundaries. Compacts, which had to be constituted between two or more states, were to be approved by Congress; unaffiliated states could not form a compact unilaterally, nor could they exclude waste from outside their boundaries.

As it became clear that only those compacts having existing disposal facilities would be able to meet the 1986 deadline, the National Governors’ Association sent another proposal to Congress, which led to the passage in 1985 of the Low-Level Radioactive Waste Policy Amendments Act, 42 U.S.C. Sec. 2021d et seq. This legislation extended the operation of the three existing disposal sites to December 31, 1992; established specific milestones states had to meet in order to maintain access to the facilities operating at the time; set up strong incentives to encourage states without sites to site, license, and construct facilities; and gave congressional approval to seven compacts-Central, Central Midwest, Midwest, Northeast, Rocky Mountain, Southeast, and Northwest. In subsequent congressional sessions, two additional compacts-the Appalachian and the Southwestern-were ratified. The Texas Compact, comprised of Texas, Maine, and Vermont, awaits action by a conference committee to resolve differences in the language approving this compact. Today, all but six states-New York, Massachusetts, Michigan, New Hampshire, Rhode Island, and South Carolina-along with Puerto Rico and the District of Columbia are members of the ten compacts ratified by Congress since the passage of the Amendments Act.

The most controversial part in the Amendments Act was its "take-title" provision. This required states unable to provide for disposal capacity by January 1, 1993 to take legal title to all low-level radioactive waste generated within their borders at the request of the waste generator; it was intended as the ultimate incentive to encourage states to site regional facilities. This portion of the Act was declared unconstitutional by the United States Supreme Court in 1992 on a challenge brought by New York and two of its counties. The Supreme Court affirmed the constitutionality of the rest of the Act.

On January 1, 1993, the three states with operating disposal facilities were no longer required to continue accepting waste from outside the borders of their compacts. On that date, Nevada closed its Beatty facility. Washington continued the operation of its Richland facility, accepting waste only from the Northwest and Rocky Mountain Compacts. South Carolina continued to accept waste from some states outside its compact, including New Jersey, through June 30, 1994, when it closed Barnwell to all but Southeast Compact members. Access had been allowed under contract, provided that states were judged by the Southeast Compact to be making adequate progress in siting their own disposal facilities.

One year later, the South Carolina Legislature reopened Barnwell to all states except North Carolina, excluding its neighbor ostensibly because it had not fulfilled its commitment to the Southeast Compact to have a disposal facility in operation by 1995. The reopening of Barnwell has allowed for continued disposal of waste from New Jersey through the present. This arrangement, which exists on a year-to-year basis, is complicated by substantial financial requirements of the state of South Carolina that has led Chem-Nuclear, the operator of the Barnwell facility, to float some long-term proposals that would permit the facility to operate for at least another twenty years. The response to the proposals by generators thus far, in New Jersey and elsewhere, has been tepid at best.

The Northeast Compact

In the wake of the passage of the Low-Level Radioactive Waste Policy Act, representatives of the Coalition of Northeast Governors, an organization representing eleven states, negotiated the framework for the Northeast Compact, of which New Jersey is a member. Over an 18-month period, a series of public meetings were conducted to develop the provisions of the compact. This task was completed in 1983, and the legislation establishing the compact was sent to the governors of the eleven states. However, the legislatures of only four states-

New Jersey, Connecticut, Delaware, and Maryland-adopted the legislation. After the passage of the Amendments Act of 1985, Delaware and Maryland decided to join the Appalachian Compact, with the understanding that Pennsylvania was to be the first host state for the low-level waste generated by compact members.    top

The Siting Board

New Jersey’s Siting Board was appointed in 1988 and held its first meeting that September. The Board initially retained the services of Association Management Corporation, a professional management firm, to handle the various administrative functions of the Board’s operations. During this time, the Board developed Requests for Proposals both for technical services related to statewide screening and siting, and for public information, a critical component of the siting effort.

As the Board hired a small staff, headed by Samuel Penza, and engaged consultants, it also developed siting criteria. Acting upon the recommendation of the Advisory Committee, the Board adopted performance-based rather than prescriptive criteria: the Board emphasized what was to be protected, rather than how to protect it.

The legislation that created the Siting Board, modeled largely after the state’s hazardous waste siting commission legislation, envisioned a "top-down" approach to siting a disposal facility. This traditional method was to be geographically neutral: Technical consultants would apply the siting criteria across the state, narrowing potential candidates to 18Ð20 geologically diverse sites around the state. Then in open public forums, the Board would further narrow down the field to six sites-without knowing the specific locations. These would become public only when the Board notified the respective towns that land within their jurisdiction had been designated for preliminary analysis and evaluation, or "site characterization." The goal was to ultimately reduce the field to three for preliminary characterization and then choose one.

As part of the siting effort, the Board placed emphasis on statewide and regional outreach to civic, professional, and governmental groups across the state. In addition to seeking and generating media coverage of the issues and its activities, the Board exhibited at conventions and placed articles in various organizational publications; spoke before a variety of interested groups; and began producing a variety of public informational materials (a selection appears in the Appendix on page XX). In addition, anticipating that generators would have to begin interim storage of low-level radioactive waste after January 1, 1993, the Board worked closely with generators to ensure that the transition from out-of- state disposal to on-site storage would go smoothly.

Reviewing the experiences of other states as well as provinces in Canada, it soon became apparent to members of the Board that the top-down approach did not augur well for a successful siting process. As New Jersey was preparing to notify municipal officials that it was about to initiate statewide screening, Connecticut, which had employed this methodology, announced its proposed sites to a chorus of outrage. Public outcry led to political roadblocks. New Jersey’s Board made a sobering assessment of the lack of progress on this issue nationally, and concluded that even when this type of process produces a site, it leads to controversy and acrimony and time-consuming lawsuits. In addition, the Board felt that the top-down method rarely allowed all the people potentially affected by the facility to get meaningful information and answers to their questions and concerns before a decision has been made. So, beginning in the fall of 1992, the Board charged the Advisory Committee with developing a blueprint for siting a disposal facility using a different type of decision-making process: a voluntary approach to siting.

To accomplish its mandate, the Advisory Committee embarked on an 18-month effort, studying siting initiatives in the United States and in Canada, meeting with numerous groups and individuals across the state thought to have a stake in the siting of a disposal facility, and commissioning sessions with focus groups to further refine how to give the voluntary approach the best chance for success in New Jersey. Emergency responders, municipal officials, and planners, as well as representatives of environmental groups, labor organizations, and facilities generating low-level radioactive waste provided valuable input. After listening to all of them, and motivated by the desire to create a flexible yet environmentally sound approach to siting the disposal facility, the Advisory Committee recommended a process which it felt would encourage communities to consider volunteering a site for the facility. New Jersey generators, it should be noted, actively worked with the Board, and even formed their own organization, the New Jersey Radioactive Materials Management Group.

In grappling with the issues associated with siting a disposal facility in New Jersey, the Board anticipated that concerns about local property values in a potential host community would be a key consideration. The Board commissioned the Center for Negotiation and Conflict Resolution at Rutgers University to gather information to help the Board in designing a comprehensive multi-purpose assistance program for the host community that would address mitigation, compensation, and incentives.

In June 1994, the Board published its Proposed Voluntary Siting Plan, and during the summer and fall of 1994 sponsored a series of public meetings and hearings at locations across the state. Public comments on the proposed plan endorsed the idea of a voluntary approach. The Board revised the plan-without changing or compromising siting criteria-based on the suggestions it received both at the meetings and in writing, and adopted New Jersey’s Voluntary Plan for Siting a Low-Level Radioactive Waste Disposal Facility at its public meeting on February 2, 1995.

The Board’s efforts were spurred in 1994-95 when the disposal facility at Barnwell, South Carolina closed to all but members of the Southeast Compact. This development left generators with no option but to store all of their low-level waste on site. The emerging crisis passed when a newly elected administration in South Carolina decided to reopen Barnwell to states outside the compact, charging them a hefty surcharge for the privilege of burying their waste in the sands of Barnwell County.    top

Volunteers

Implementing the voluntary siting plan meant a focused, concentrated effort at public outreach and public information. New Board Executive Director John Weingart criss-crossed the state, speaking to a wide variety of groups, from Rotary Clubs to planning associations to governmental entities. Bolstering its initial public information effort, the Board began publishing a quarterly news update, disseminating that publication along with several brochures and reports to public officials, waste generators, environmentalists and other interested parties throughout the state. The Board set up a Web page on the Internet to assist in its effort to effectively disseminate information to anyone with interest in the issues. The Board solicited doctors, scientists, and educators from across the state to sign a statement that "A disposal facility for low-level radioactive waste would be a safe neighbor." The Board’s efforts continued to generate generally positive media coverage.

It was the guarantee of $2 million a year over the projected 50-year operating life of the disposal facility that spurred interest in dozens of communities. This amount was derived from quantifying an approximation of the host community benefits included by the Legislature in the Siting Act. In several instances, preliminary discussions indicated that a particular site or community would not meet the stringent requirements for the facility, i.e., the community was located in the Pinelands, or a possible site was in a 100-year flood plain. Discussions with those communities ceased.

Over the three years during which the voluntary approach was actively pursued by the Board, many individuals sought information to help them determine whether or not hosting the disposal facility might be a good idea for their municipality. In sixteen towns, the possibility gained enough public interest to inspire attention in the local and regional press. In fourteen of those communities, local officials began public processes intended to fully explore whether or not they should volunteer to host the disposal facility.

The difficulty the Board ran up against time and again, however, was fear-fear that having a disposal facility for low-level radioactive waste in a town would decrease property values; that it would cause irreparable harm to people’s health and well-being; that it would irredeemably pollute the environment as well as disrupt the relative tranquillity of the community; and that claims and promises by government officials-as well as the expertise of scientists and engineers-to the contrary could not be trusted. In most of the towns in which the issue was raised, fear led to opposition so immediate and intense that local officials who had supported studying the possibility felt compelled to end the study process within weeks-or at most three months-of its inception. The other potential volunteer towns were eliminated by the Board because preliminary examination indicated that they had no available locations likely to meet the stringent siting criteria.

To spur its efforts to get all the facts on the table so that people in a community could decide if considering the possibility of volunteering to host New Jersey’s disposal facility was an option worth pursuing, the Board commissioned the New Jersey Office of Dispute Settlement to compile a Sourcebook on Low-Level Radioactive Waste, which lists organizations with various points of view that could offer speakers and/or literature on the subject. The Board funded the Environmental Sciences Training Center at Rutgers University to research and produce a series of Fact Sheets on radioactive materials and low-level radioactive waste. The Board funded the New Jersey League of Women Voters’ Education Fund to compile an informational handbook, to produce a videotape that explored the various facets of siting, and to organize and co-sponsor, with the New Jersey State League of Municipalities and Rutgers, workshops designed to explore the issues.

In towns in which interest was expressed to learn more, the Board displayed its exhibit in municipal buildings. In some towns, it co-sponsored Open Houses at which organizations with various viewpoints on the use of radioactive materials and the siting of a disposal facility for low-level radioactive waste could be heard. (The Board learned fairly early on not to hold or attend a large public meeting as its first point of contact with many members of a community, since those meetings shed more heat than light.)

Although many residents of the communities that invited the Board to speak were interested in learning the facts as a prelude to making an informed decision, many of their fellow residents already had their minds made up: Not In My Back Yard! Discussion of the facts-and the not inconsiderable benefits that the host community would receive-became irrelevant. Demands that town officials cease considering the possibility not only of hosting but even of learning the facts quickly became so loud and persistent that even town officials who were absolutely convinced that the disposal facility would be safe and beneficial decided that intense local controversy over a two-year study period was too high a price to pay.

One of the difficulties that became apparent in several communities that expressed initial interest in learning more about the issues and the process was the inability of sponsors, working with the Board, to create an inclusive forum for meaningful public discussion. A second problem that proved insurmountable was the inability of sponsors to develop a vocal core group of followers who would advocate at least having the opportunity to learn and evaluate the facts and explore different points of view before rendering judgment on whether or not hosting the disposal facility might be right for their community. Almost by definition, people who believed this idea would cause cancer in their community acted with far more passion than those who thought this a potentially interesting economic development option.

In Carneys Point (Salem County), the last community to make an effort to learn about the issues, the Board, at the behest of town leaders, agreed to offer up to $750,000 up front in incentive money-money that would go to the town without obligation just to learn about the issues in the course of a 16-month process. Despite the hopes of the town’s Economic Development Commission, which had spearheaded the town’s interest, public comment against the proposal-at community meetings, in letters to the editor-undercut and quickly curtailed the development of any meaningful public dialogue.    top

Into the Future

Since the passage of the Siting Act, generators have made substantial efforts to reduce the volume, if not the activity, of the low-level waste that is the unavoidable by-product of the products and processes that use radioactive materials. At the same time, they have each constructed or designated space on-site capable of temporarily storing all the waste they expect to generate for at least five years. Many do, in fact, have a considerably longer storage capability; GPU Nuclear’s power plant at Oyster Creek can, if necessary, store all of the low-level waste it generates up until the time the plant is decommissioned. In addition, other developments nationally might expand the out-of-state disposal options for New Jersey generators. These developments, along with the dramatic reduction in waste volume in New Jersey, which call into question the economic viability at this time of building a disposal facility for low-level radioactive waste generated exclusively in New Jersey, led the Board to suspend active siting efforts.

Although active siting has ceased, the Board does anticipate continuing its efforts to monitor and track national developments in the management of low-level radioactive waste. Currently, two privately operated facilities-Barnwell in South Carolina and Envirocare in Utah-service New Jersey generators. Other private firms are seeking to open disposal sites in Colorado and Utah. And the possibility remains that disposal facilities may open in Texas and California. In addition, various private interests are exploring new technologies to treat and/or consolidate waste products. The progress of these efforts may reduce or even eliminate the need for additional disposal facilities in New Jersey and elsewhere. The Board expects to actively monitor-and keep the Governor, legislators, and generators apprised of-these and any other emergent developments, as well as the elimination of, or obstacles encountered by, once-promising technologies and options.

As Board Chairman Paul Wyszkowski cautioned in a letter to the Governor in the wake of the Board’s vote in February 1998 to suspend the active siting effort, although "the Siting Board continues to believe that a disposal facility for low- level radioactive waste would provide a safe, light industrial addition to New Jersey’s economic base...we want to stress that the problem the Board was created to address has not been solved; New Jersey’s utilities, industries, hospitals, research labs and universities do not have a secure long-term disposal option for the low-level radioactive waste they generate. While this is not a current crisis, it does require continued attention and vigilance."

And education. To fulfill its legislative mandate, the Board expects to expand its public education effort concerning the management of low-level radioactive waste. Although sound and safe management technologies now exist for handling, storing, and disposing of this waste, the general public has not reached a level of understanding and confidence that this can be accomplished in a manner that protects public health and safety.

NOTES

The following sources were cited in compiling this narrative:

Directions in Low-Level Radioactive Waste Management: A Brief History of Commercial Low-Level Radioactive Waste Disposal, published in August 1994 by the National Low-Level Waste Management Program.

Perspectives: Low-Level Radioactive Waste Management, published by the U. S. Department of Energy.

The Northeast Compact: An Interstate Agreement for Regional Low-Level Radioactive Waste Management, published in April 1995 by the Northeast Interstate Low-Level Radioactive Waste Commission.

"What Regulations Govern the Siting of a Low-Level Radioactive Waste Disposal Facility?", one of 18 Fact Sheets researched, written, produced, and disseminated by the Environmental Sciences Training Center of Rutgers University under contract to the New Jersey Low-Level Radioactive Waste Disposal Facility Siting Board.