All mixed up about mixed waste.

I. INTRODUCTION

Since the Manhattan Project, (1) knowledge and use of nuclear technology has increased dramatically. (2) Today, this technology is used not only to make weapons, but for civilian projects such as producing energy and advancing research in medicine. (3) Unfortunately, the enthusiasm for developing uses for nuclear technology has not inspired a like enthusiasm for developing treatment methods for the resulting nuclear waste. (4) The lag in nuclear waste treatment technology has led to a crisis in this country. In the words of the Department of Energy:

   The nation faces daunting institutional and technical challenges in dealing
   with the environmental legacy of the Cold War. We have large amounts of
   radioactive materials that will be hazardous for thousands of years; we
   lack effective technologies and solutions for resolving many of these
   environmental and safety problems; we do not fully understand the potential
   health effects of prolonged exposure to materials that are both radioactive
   and chemically toxic.... (5)

Waste production continues, but very few facilities can effectively treat or permanently store it. (6)

Since the Manhattan Project, the federal government has been one of the most significant generators of radioactive waste. (7) As a result, it has been accumulating various types of radioactive waste in its weapons complex. (8) The Idaho National Engineering and Environmental Laboratory (INEEL) is one example of a Department of Energy (DOE) facility that currently produces and stores many types of radioactive waste, including mixed waste, which is particularly problematic because it is radioactive and hazardous. (9) For over forty years, DOE believed its facilities were exempt from federal or state regulation under the Resource Conservation and Recovery Act (RCRA) (10) because of issues of national security and sovereign immunity. (11) INEEL, therefore, managed its mixed waste without regard to the waste's hazardous characteristics, treating it like all other radioactive waste. Today, the adverse environmental effects of this deficient management scheme are manifesting in the soil, sediment, and groundwater in and around the facility--groundwater 600 feet below the site is contaminated, and INEEL is now on the National Priority List for cleanup (12) under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980. (13) INEEL is but one example of the potential harm caused by management of mixed waste without regard to the waste's hazardous characteristics. The Environmental Protection Agency (EPA), however, has ignored this lesson and, in 2001, finalized a rule (MW Rule) exempting certain mixed waste from RCRA regulation. (14)

The MW Rule reverses EPA's previous position, which the D.C. Circuit affirmed, that mixed waste is regulated under RCRA and that indefinite storage of mixed waste is prohibited. (15) The MW Rule completely exempts generators of low-level mixed waste from RCRA's manifest, transportation, and disposal requirements. (16) Under the MW Rule, generators may store low-level mixed waste (17) indefinitely, subject only to standards developed by the Nuclear Regulatory Commission (NRC) designed for low-level radioactive waste. (18)

The MW Rule creates a regulatory scheme for mixed waste that is insufficient to fulfill the purpose and goals of the Hazardous and Solid Waste Amendments (HSWA) of 1984 (19) to RCRA, and it is explicitly prohibited by sections 3004(j) and (m) of RCRA. (20) Mixed waste is hazardous waste and therefore should be subject to all of RCRA's restrictions and requirements. (21) Section 3004(j) specifically prohibits indefinite storage of hazardous waste, and section 3004(m) prohibits disposal of untreated hazardous waste in land disposal facilities. (22) Congress took such strong proscriptive measures because 1) it wanted to protect the public and the environment by preventing disposal of untreated waste, and 2) it wanted to force development of new treatment technology for hazardous waste. (23) The MW Rule, however, fails to achieve either goal. First, indefinite storage at generator facilities is the functional equivalent of land disposal and poses corresponding risks to human health and the environment. (24) Second, this exemption neutralizes any incentive to develop innovative technology by allowing generators to store their own waste with no enforceable schedule for future treatment and disposal. (25) As a result, EPA's MW Rule is inconsistent with the policies and goals of RCRA.

Part II of this Comment provides background on low-level mixed waste and its tumultuous regulatory history. Part III explains EPA's MW Rule and the rule's impact on the regulated community. Part IV identifies specific reasons the NRC regulation of low-level mixed waste is insufficient to achieve RCRA's twin policy objectives--to protect human health and the environment and to force new technology for treatment and disposal of low-level mixed waste. Part IV also evaluates EPA's purported precedent for creating this exemption and compares this exemption to other allowable exemptions. Part IV argues that the MW Rule creates an exemption for generators of low-level mixed waste that is inconsistent with both legislative history and court interpretation, which dictate that low-level mixed waste must be subject to RCRA. (26) Part V concludes by suggesting that this exemption from regulation under RCRA for low-level mixed waste generators is contrary to the spirit and the letter of the law and makes serious environmental problems even worse.

II. BACKGROUND INFORMATION

A. What Is Low-Level Mixed Waste?

The MW Rule applies to low-level mixed waste, which is a subset of mixed waste. Mixed waste is waste that is considered radioactive under the Atomic Energy Act (AEA) (27) and hazardous under RCRA. (28) This definition covers a wide range of waste, from waste exhibiting low radioactivity and low concentrations of hazardous constituents to waste that is highly radioactive and contains high concentrations of hazardous material. Low-level mixed waste is comprised of all low-level radioactive material exhibiting any hazardous characteristic. (29)

Low-level mixed waste includes a wide spectrum of materials ranging from organic material (toluene, xylene, CFCs, and PCBs) (30) to heavy metals (lead and cadmium). (31) The hazardous aspect of low-level mixed waste can be significant, and these materials can result in serious adverse human health and environmental effects if mismanaged. (32) It is as important to protect humans and the environment from these types of hazardous materials as it is to protect against low-level radioactive waste. Moreover, the additional synergistic effects of exposure to mixed waste could be even more damaging than exposure to a single material. (33)

Low-level radioactive waste is a catchall term for all radioactive waste not considered high-level waste. (34) The half-life (35) of low-level radioactive waste ranges from six hours to 4.47 billion years, (36) and the appropriate isolation time for most low-level waste is a few centuries. (37) The effects of radiation exposure depend on the type and dose of the radiation and nature of the individual exposed. (38) Radiation can cause damage to body tissue, such as cancer or leukemia, and genetic effects that result in damage to future generations. (39) Although this waste is called low-level, it still produces radiation, which can cause serious health effects. (40)

Currently, there is no comprehensive and reliable estimate of how much low-level mixed waste is produced or stored in this country. This is partly due to lack of knowledge on the part of generators and partly due to fear of reporting accurate waste estimates, which would subject generators to further regulation. (41) A joint NRC-EPA survey of probable generators of low-level mixed waste gives the most recent estimate of how much low-level mixed waste is being produced. However, the agencies precede their conclusions with a disclaimer describing "uncertainties in estimates." (42) This voluntary survey revealed 1,143,000 cubic feet of low-level waste, nine percent of which was mixed waste. (43) Generators of this waste include nuclear power plants, industrial reactors, research facilities, and universities. (44) These generators produce waste in many forms including cleaning solvents, solid trash, and contaminated soil. (45) Generators currently store this waste in violation of RCRA at their facilities with no plans for treatment and disposal. (46)

B. Regulatory History of Mixed Waste

Congress established a unique regulatory scheme for mixed waste, which is jointly regulated by NRC and EPA. EPA has jurisdiction over hazardous waste through RCRA, (47) and NRC has jurisdiction over radioactive waste through the AEA. (48) The current format is a result of many adjustments to the original regulatory scheme.

Until 1984, DOE (then the primary producer of mixed waste) operated under the assumption that it was exempt from regulation by EPA under RCRA. A federal district court partially rejected DOE's assumption in Legal Environmental Assistance Foundation v. Hodel, (49) concluding that RCRA regulates DOE hazardous waste, but the court left open the question whether RCRA applies to mixed waste. (50) Meanwhile, Congress toughened RCRA's hazardous waste standards with the enactment of the Hazardous and Solid Waste Amendments (HSWA). This new statutory language added a ban on land storage of untreated hazardous waste and set time limits on temporary storage. (51)

EPA responded to this stricter language by stating it had RCRA jurisdiction over all hazardous materials, leaving only radionuclides (52) exempt. (53) This interpretation effectively gave EPA joint jurisdiction over mixed waste, as it was inseparable from those radionuclides. By 1990, EPA recognized in its Hazard Ranking System (54) that sites containing "mixed radioactive and other hazardous substances involve more evaluation than sites containing only radionuclides." (55) Finally, in 1992, EPA confirmed in a policy statement that untreated mixed wastes were prohibited from land disposal in accordance with the HSWA, (56) but the agency attempted to mitigate the harsh effect of this policy by implementing a series of guidelines that reduced the enforcement priority of the prevalent storage violations. (57)

In 1993, despite the court's sympathy for the generators' predicament, the D.C. Circuit confirmed that indefinite storage of mixed waste by generators was a violation of RCRA's express language. (58) Since then, generators have been storing waste in violation of RCRA due to the perceived difficulty of treating or finding treatment facilities willing to accept the waste. The Utility Solid Waste Activities Group (USWAG) challenged these heightened restrictions in a petition to EPA requesting an amendment to subtitle C (59) regulations. (60) The current MW Rule is EPA's response to that petition.

C. The Problem With Mixed Waste

The primary cause of the controversy over mixed waste is the perceived shortage of disposal facilities available to generators. (61) Mixed waste is unlike other wastes most facilities are capable of treating. Some critics assert that the EPA regulations for low-level mixed waste "cannot be met" because of land disposal restrictions and because there is no treatment technology for mixed wastes containing CFCs and other organic materials. (62) However, this appears to be a gross overstatement as there are some facilities (63) currently accepting mixed waste, and the capacity of those facilities is not overloaded. (64)

Not only is there capacity for disposal of low-level mixed waste, disposal facilities are developing and testing new technology for treatment of such waste to comply with RCRA. (65) Furthermore, in response to a survey asking generators why they were holding their waste instead of sending it to treatment facilities, generators did not use the perceived lack of disposal facilities as justification. They claimed confusion over acceptable treatment methods, ignorance of their waste, and fear of RCRA as the primary reasons for their actions. (66)

Despite the evidence of available treatment facilities, there is a widespread belief by generators that treatment of mixed waste in compliance with RCRA is not an available option. Rather, they believe they have only three truly viable options: 1) stop generating mixed waste altogether by developing an alternative process that does not involve hazardous materials; (67) 2) reduce the radioactive component below regulatory concern and to treat it exclusively as hazardous waste, (68) or 3) continue to generate mixed waste in violation of RCRA. Most generators have chosen the last option. Thus, rather than use the current disposal capabilities, while simultaneously working to develop new technology to deal with mixed waste, most generators currently store their mixed waste in violation of RCRA. (69) Rather than enforce its statutory obligations, EPA has responded to these violations by promulgating a rule that allows indefinite storage pending new technology. (70)

III. THE MIXED WASTE RULE

A. General Outline of the Rule

The stated goal of EPA's MW Rule is to increase storage flexibility for generators by negating the current dual regulatory structure, while still maintaining the protection of human health and the environment that RCRA requires for hazardous waste. (71) The regulated community of generators is upset by the fact that they must comply with what they perceive as burdensome and costly RCRA requirements (72) in addition to the NRC guidelines already in effect for nuclear waste. (73) They argue that there are no health or environmental benefits from these added requirements, (74) and that compliance is impossible due to limited disposal facilities. (75) EPA responded to these concerns with the MW Rule, which exempts certain generators from many RCRA requirements.

The MW Rule removes generators of certain low-level mixed waste from RCRA jurisdiction by exempting that waste from the regulatory definition of hazardous waste while that waste is in storage at the generator's facility. (76) Most significantly, the MW Rule exempts generators from the time limitation for onsite storage. (77) Mixed waste is exempt from section 3004(j) so long as the waste is kept onsite (78) and handled in accordance with NRC guidelines. (79) This exemption is valid until the waste no longer demonstrates significant radioactivity. When the waste demonstrates a radioactivity below regulatory concern for NRC, (80) it reenters RCRA jurisdiction and is subject to all of RCRA's requirements. (81) The amount of time this will take is, of course, dependent on the type of isotope and its respective half-life. Some mixed waste will remain radioactive for hundreds of years and exempt for an equally long period of time. (82)

This exemption also prevents a generator from being classified as a Transportation, Storage, Disposal Facility (TSD), a classification that normally becomes automatic when a generator holds waste longer than ninety days. (83) This is significant because TSDs are subject to even more stringent monitoring standards than generators. For example, RCRA requires TSDs to have closure plans and to show sufficient financial strength to remedy discharges and catastrophic events. (84) Because the MW Rule does not classify the waste as hazardous, the ninety-day limit on generator interim storage of hazardous waste does not apply, and TSD requirements are not triggered.

In order to qualify for the exemption under the MW Rule, any generator of mixed waste with an NRC license that satisfies certain conditions may store its mixed waste until it no longer demonstrates radioactivity. (85) The conditions include 1) maintenance of a valid NRC license, 2) compliance with that license, 3) notification to EPA of this exemption claim, 4) certification of appropriately trained personnel for waste handling, 5) performance of an annual inventory of the waste, and 6) development of an emergency contingency plan. (86) As long as the generator meets these conditions, it can claim an exemption and store its waste as long as it is radioactive.

B. Comments on the Rule

EPA gave the regulated community and the general population an opportunity to comment on the original proposed mixed waste rule by publishing an advance notice. (87) Although the comment process was not legally flawed, the responses to the proposed rule are interesting because, for the most part, they reflect the concerns of those who will most benefit from the relaxed enforcement. (88) The regulated community--academia, commercial TSDs, contractors and vendors, hospitals, industry, power producers, and trade groups--submitted the majority of comments. (89) A small number of government environmental and health agencies responded, but none of the seventy-two commenters were public interest groups. (90)

These comments reveal that the MW Rule appeals to the regulated community because it removes any requirement to change current practices. All of the generators that responded supported the MW Rule, and some generators wanted the rule to be even more lenient. (91) The reasons cited for support of the MW Rule centered around the impracticability and expense of current RCRA regulations. The comments focused almost exclusively on the costs of compliance, and there was little discussion of the effects on human health and the environment. (92) EPA subsequently considered these generator complaints and revised the proposed rule to the expansive exemption evident in the final MW Rule.

Research and development of better treatment options and use of currently available treatment facilities will be costly and generators are eager to avoid these expenses. (93) However, this is not a valid justification for an exemption from RCRA regulations. Congress meant compliance with RCRA requirements to be difficult in order to advance technology and to be as protective of human health and the environment as possible. (94)

IV. THE MIXED WASTE RULE VIOLATES RCRA

A. An Exemption for Low-Level Mixed Waste Is Unlike Other Valid Exceptions

There are a few exceptions to the general rule that all hazardous waste is regulated under RCRA. The exemption EPA has carved out for mixed waste is unlike any of the previously existing exemptions. In the few instances where a hazardous waste is not regulated under RCRA, it has been in response to an express congressional directive. The MW Rule is distinguishable from those mandated exceptions, and therefore, they cannot be used as precedent to justify the rule.

1. Statutory Exclusions

One way for regulators to avoid the general rule is to fall within one of the categories Congress excluded from RCRA jurisdiction. Examples of exclusions include mining waste, domestic sewage, and material such as common household waste that contains only small amounts of hazardous material. (95) Significantly, these are not exemptions from RCRA; they are wastes that were excluded from the Act itself pursuant to legislative mandate. The exception created for mixed waste is a true exemption, created despite the clear language that encompasses all hazardous waste unless otherwise excluded, including low-level mixed waste. (96)

2. The Military Munitions Rule

Another exception to the general rule is the military munitions rule (MMR). (97) This rule allows the military to retain jurisdiction over its fired munitions until they are removed and transported off the military facility. (98) The MMR is the legal precedent relied on by EPA for its "regulatory flexibility," (99) but the justifications for the MMR are much different than those for the rule for mixed waste generators. Thus, the MMR is not an appropriate model on which to base the MW Rule, and the MMR cannot be used as precedent to justify the MW Rule exemption.

EPA developed the MMR in response to a congressional directive. Congress enacted the Federal Facilities Compliance Act (FFCA) (100) in response to refusals by the Department of Justice to enforce the substantive and procedural requirements of RCRA at federal facilities. Congress wanted federal facilities to be regulated at the same level as private industry; however, it recognized a special area that was not appropriate for this "blanket enforcement" and therefore carved out a niche for military munitions by enacting RCRA section 3004(y). (101) In Military Toxics Project v. EPA, (102) the D.C. Circuit upheld EPA's promulgation of the MMR as a reasonable interpretation of section 3004(y). (103)

Unlike military munitions, Congress has not spoken regarding an exemption for mixed waste. The legislature's only direction on mixed waste has come in the form of the strict statutory language Congress purposefully enacted in the HSWA.

A comparison of the purposes for the exceptions to RCRA reveals another significant difference between the MMR and the MW Rule. The purpose of the exception for military munitions is to ensure national security. (104) Congress was concerned that RCRA regulations would disrupt the military's goal of maintaining well-trained soldiers, (105) and therefore, Congress directed EPA to promulgate special rules for military munitions. (106) In contrast, the primary purpose of the MW Rule is to alleviate financial and administrative burdens felt by generators. (107) This justification is not on the same scale. It should take a major public benefit such as national security to allow such an exemption--not a financial benefit to generators.

The nature of the mixed waste exemption is also different. The MMR exempts munitions only so long as they are serving a useful propose for the military. (108) When the military munitions no longer serve a useful function and are treated with an intent to discard, the waste re-enters RCRA jurisdiction. (109) On the other hand, the MW Rule exempts material that is clearly waste without requiring that it be serving any useful purpose. (110) This waste will only re-enter RCRA jurisdiction at some distant point in the future when the waste exhibits radioactivity below regulatory concern.

This low-level mixed waste exemption is not equivalent to the military munitions exemption. Accordingly, the MMR cannot be used as precedent for the MW Rule because the MW Rule is not a response to congressional action. The MW Rule exists solely for the economic benefit and convenience of generators (not for a public policy such as national security), and the regulatory framework governing the waste (NRC guidelines) was not designed for hazardous waste, whereas the MMR was designed for the express purpose of safe handling of military munitions.

B. The Low-Level Mixed Waste Exemption Contradicts the Explicit Language of RCRA Section 3004(j)

In Edison Electric Institute v. United States Environmental Protection Agency Edison, (111) the D.C. Circuit held that indefinite storage of mixed waste was a violation of RCRA section 3004(j). (112) EPA had recently confirmed that, although waste treatment capacity was limited, storage for purposes other than to accumulate quantities necessary to facilitate appropriate disposal was a violation of RCRA. (113) In applying the Chevron analysis, (114) the D.C. Circuit determined that Congress spoke to the precise issue of storage in section 3004(j) and stated that RCRA "clearly proscribes the indefinite storage of wastes pending the development of treatment and disposal capacity ... if petitioners are to obtain relief from their present predicament, that relief must come from Congress." (115) Therefore, a prohibition on indefinite storage of mixed waste is necessary to effectuate the language and intent of section 3004(j).

The petitioner in Edison offered several arguments as to why mixed waste should not be subject to section 3004(j), thereby making indefinite storage of mixed waste not a violation of RCRA. First, the petitioner conceded that the language "facilitate proper recovery, treatment or disposal" was indeed unambiguous, but argued that it actually supported its position. (116) The petitioner argued this language allowed storage until capacity became available, and because no capacity was currently available for its mixed waste, there was no violation of that section. The court rejected this interpretation, noting that "available" meant only allowing accumulation to meet minimum volume requirements imposed by waste transporters or treatment facilities. (117) The court also observed that the petitioner's interpretation of the statutory language would be redundant when viewed in conjunction with other provisions of the statute dealing with the problem of inadequate treatment or disposal options. (118) For example, section 3004(h)(3) allows EPA to provide extensions to the land disposal restrictions on a case-by-case basis, and section 3004(h)(2) allows EPA to grant national capacity variances, both of which could delay the effective date for up to two years. (119) Not only would the petitioner's interpretation be redundant, it would go against the fundamental goal of these restrictions, which is to provide an incentive to develop adequate treatment and treatment facilities for mixed waste.

The petitioner in Edison next argued that compliance would be impossible and that a statutory construction yielding "such `absurd' or `impossible' results should be avoided." (120) The court rejected this argument for much of the same reasons as the last, holding that RCRA's legislative history made it clear that the goal of the provision is to force technology to develop along with the production of waste. (121) The court contemplated whether treatment was truly impossible, or whether the scarcity of treatment was due to insufficient devotion of resources to the problem. The court concluded that EPA's interpretation should be upheld in accordance with the clear congressional intent to disallow storage for reasons other than facilitating disposal, even if compliance with this restriction would be difficult for generators. (122)

Finally, the petitioner argued that the current system of dual regulation was burdensome on generators. In response, the court cited New Mexico v. Watkins, (123) in which the D.C. Circuit had previously upheld the validity of the dual regulation system and the inherent burdens that accompanied it. (124)

Many of the petitioner's arguments in Edison are similar to those that appeared in the Comment Summary for the Rule and in the Rule Summary to justify the exemption. (125) Those unsatisfactory justifications are equally, if not more, unsuitable now. RCRA's unambiguous language and the technology-forcing goals have not changed, and there are even more treatment and disposal options today than there were when the D.C. Circuit decided Edison.

C. The Mixed Waste Rule Creates a Regulatory Framework Insufficient to Meet the Goal and Purpose of RCRA

Under the MW Rule, low-level mixed waste stored at the generator's facility is exempt from RCRA regulation. While such waste is stored by the generator it is subject to NRC guidelines, which generators currently follow for their storage of radioactive waste at these same facilities. These guidelines do not adequately fulfill RCRA's goals to protect human health and the environment from low-level mixed waste and to encourage the development of treatment technology. (126)

1. Protection of Human Health and the Environment

The NRC guidelines do not protect human health and the environment from hazardous material to the degree prescribed by RCRA. (127) The two regulatory frameworks are different because they were designed for different wastes. Radioactive waste and hazardous waste pose different threats to human health and the environment, (128) and the respective regulations reflect this difference.

The goal of waste regulation under NRC is different than under RCRA. NRC was designed to protect workers and the public from exposure to radionuclides. (129) This type of protection involves isolating waste from people for long periods of time. (130) Under RCRA, proximity between humans and the waste is not paramount; rather, Congress designed RCRA to protect against releases of hazardous material into the environment and to promote treatment of waste, by converting it into less hazardous material, to protect human health and the environment. (131)

The approaches to regulation are also different. RCRA prospectively sets national standards to define acceptable management practices for hazardous waste. (132) On the other hand, NRC requires generators to do site-specific analyses ensuring minimal radiation exposure to workers and the public near that facility. (133) NRC then approves each individual facility based on whether its proposal will protect people from radioactivity, not whether it is the best way to store a hazardous material. There are no universal guidelines or standards for storage as there are under RCRA. In addition, there is no inquiry into or analysis of the hazardous nature (other than radioactivity) of the waste. (134) Issues such as hazardous waste compatibility, storage, stability, and emergencies are also not addressed by the NRC guidelines as they are under RCRA. (135)

An NRC license is not as protective as the EPA regulations under RCRA. Some of the most significant protections under RCRA include 1) weekly inspection of a facility storing waste to ensure no discharge (NRC guidelines require inspections only quarterly), (136) 2) removal of all hazardous waste after closure of the facility (NRC guidelines require only post closure checks for radioactivity), (137) and 3) monitoring of groundwater by use of special wells (138) that test for hazardous constituents (NRC guidelines only require testing for radioactivity). (139) Congress designed these requirements specifically to protect human health and the environment from the unique dangers posed by hazardous waste, and NRC guidelines are insufficient to provide similar protections.

In addition to the insufficiencies of the regulatory standards, there is evidence of lax implementation of these standards and insufficient management of waste at sites that are currently under NRC regulation. (140) For example, significant amounts of radionuclides have been found in the groundwater and soil around nuclear waste storage sites regulated under the NRC guidelines, (141) evidencing that the NRC guidelines may not be sufficient to protect groundwater from hazardous constituents. (142) RCRA, however, contemplates protection of human health through protection of groundwater and drinking water, a standard not currently met by the NRC guidelines with respect to radionuclides. (143) If hazardous waste is also being improperly managed, these insufficiencies will magnify the harm caused by the radionuclides.

2. Advancement of Treatment Technology

RCRA's goal is to protect human health and the environment from hazardous waste. To achieve this goal, Congress included provisions in RCRA to force the creation of new technology and to create a disincentive to generate waste that is currently regarded as difficult to treat. In the "objectives and national policy" section of RCRA, Congress explicitly articulates its desire to promote a "national research and development program for improved solid waste management and resource conservation techniques" (144) and to "minimiz[e] the generation of hazardous waste." (145) These goals are enforced by the application of the strict requirements of the HSWA in section 3004(j). (146)

Exempting classes of generators from these strict requirements will work against the goal of advancement of treatment technology because there will be no incentive to spend money on developing this new technology. The D.C. Circuit articulated this aspect of the new statutory language:

   As amended by the HSWA, RCRA was clearly intended to provide draconian
   incentives--such as the prohibition of all forms of land disposal for
   specified wastes--for the rapid development of adequate treatment and
   disposal capacity. These incentives would be significantly diminished to
   the extent that generators could rely on the possibility of storing their
   wastes indefinitely in the event capacity was not developed in a timely
   fashion. (147)

Because of the MW Rule, the sanctions that Congress wrote into the statute have become null, technology will not advance along with the production of mixed waste, and the current treatment and disposal problem will never be solved.

V. CONCLUSION

EPA's MW Rule exempting low-level mixed waste from certain RCRA requirements violates the fundamental purpose and express language of the Act. RCRA's primary purpose is to protect human health and the environment through restrictions on storage and disposal of hazardous material. Exempting low-level mixed waste will endanger human health and prolong the mixed waste problem by allowing generators an easy way out of the significant financial investment necessary to keep treatment technology contemporary with the creation of such waste. Section 3004(j) expressly prohibits indefinite accumulation of hazardous waste: "Storage of ... hazardous waste is prohibited unless such storage is solely for the purpose of the accumulation of such quantities ... necessary to facilitate proper ... disposal." (148) The MW Rule creates a clear violation of that congressional directive, and thus is an invalid interpretation of RCRA.

(1) This term is used to describe the accelerated effort by scientists all over the United States to develop an atomic bomb during World War II. U.S. DEP'T OF ENERGY, OFFICE OF ENVTL. MGMT., CLOSING THE CIRCLE ON THE SPLITTING OF THE ATOM: THE ENVIRONMENTAL LEGACY OF NUCLEAR WEAPONS PRODUCTION IN THE UNITED STATES AND WHAT THE DEPARTMENT OF ENERGY IS DOING ABOUT IT 1-2 (1995) [hereinafter CLOSING THE CIRCLE].

(2) CONG. OF THE U.S. OFFICE OF TECH., COMPLEX CLEANUP: THE ENVIRONMENTAL LEGACY OF NUCLEAR WEAPONS PRODUCTION 3-4 (1991) [hereinafter COMPLEX CLEANUP].

(3) Robert A. Shaw, Low-Level Radioactive Wastes in the Nuclear Power Industry, in LOW-LEVEL RADIOACTIVE WASTE REGULATION: SCIENCE POLITICS AND FEAR 119 (Michael E. Burns ed., 1988); Michael J. Welch et al., Low-Level Radioactive Waste at University Medical Centers, in LOW-LEVEL RADIOACTIVE WASTE REGULATION, supra, at 109 (discussing technology used by industries that produce radioactive waste).

(4) RAYMOND L. MURRAY, UNDERSTANDING RADIOACTIVE WASTE 2 (Judith A. Powell ed., 4th ed. 1994) ("[D]ecisions about final disposal of wastes have had a lower priority than production in the overall nuclear development."); see also CLOSING THE CIRCLE, supra note 1, at 1-5 (discussing the rapid development of nuclear technology).

(5) CLOSING THE CIRCLE, supra note 1, at 9; see also NICHOLAS LENSSEN, WORLDWATCH PAPER 106, NUCLEAR WASTE: THE PROBLEM THAT WON'T GO AWAY 5-8 (1991) (documenting and criticizing the federal government's role in promoting nuclear technology without a solution to the waste problem). But see ROBERT C. MORRIS, THE ENVIRONMENTAL CASE FOR NUCLEAR POWER: ECONOMIC, MEDICAL, AND POLITICAL CONSIDERATIONS 29 (Paragon House 2000) (arguing that "[n]o real experts in the field of nuclear waste disposal view this problem as `unsolvable'").

(6) See CLOSING THE CIRCLE, supra note 1, at 23-56 (discussing the various types of nuclear waste and the treatment options currently available).

(7) COMPLEX CLEANUP, supra note 2, at 3-4.

(8) Id. Congress has described the Nuclear Weapons Complex as "an industrial empire--a collection of enormous factories devoted to metal fabrication, chemical separation processes, and electronic assembly." Id. at 3. Collectively, it stores high-level, low-level, transuranic, mixed high-level, mixed low-level, and mixed transuranic wastes. Id. at 42.

(9) Id. at 17; U.S. DEP'T OF ENERGY, OFFICE OF ENVTL. MGMT., IDAHO OPERATIONS OFFICE, DEPARTMENT OF ENERGY PROGRAMMATIC SPENT NUCLEAR FUEL MANAGEMENT AND IDAHO NATIONAL ENGINEERING LABORATORY ENVIRONMENTAL RESTORATION AND WASTE MANAGEMENT PROGRAMS FINAL ENVIRONMENTAL IMPACT STATEMENT SUMMARY 50 (1995).

(10) 42 U.S.C. [subsection] 6901-6992k (1994 & Supp. III 1997) (amending Solid Waste Disposal Act, Pub. L. No. 89-272, 79 Stat. 992).

(11) Atomic Energy Act of 1954, 42 U.S.C. [section] 2201(j) (1994) (giving the Nuclear Regulatory Commission authorization to dispose of radioactive materials without regard to any other law); see also id. [section] 2018 (stating that the Act "shall not be deemed to confer upon any Federal, State, or local agency any authority to regulate, control, or restrict any activities of the Commission").

(12) COMPLEX CLEANUP, supra note 2, at 34.

(13) 42 U.S.C. [subsection] 9601-9675 (1994 & Supp. III 1997).

(14) Storage, Treatment, Transportation, and Disposal of Mixed Waste, 40 C.F.R. [subsection] 266.210-.360 (2001).

(15) Edison Elec. Inst. v. EPA, 996 F.2d 326, 334-35 (D.C. Cir. 1993).

(16) Generators eligible for the exemption are nuclear utilities, universities and academic institutions, medical facilities, industrial establishments, and government facilities (including DOE facilities like INEEL). Storage, Treatment, Transportation, and Disposal of Mixed Waste, (66) Fed. Reg. 27,218, 27,220 tbl.1 (May 16, 2001).

(17) Low-level mixed waste means any radioactive material that is not classified as high-level radioactive waste, transuranic waste, spent nuclear fuel, or byproduct material, that encompasses material slightly above background levels to those that require extreme caution when handling. COMPLEX CLEANUP, supra note 2, at 210.

(18) 40 C.F.R. [section] 266.230 (2001).

(19) Pub. L. No. 98-616, 98 Stat. 3221 (1984) (codified as amended at 42 U.S.C. [subsection] 6901-6987 (1994)). Congress declared the national policy to reduce or eliminate generation of hazardous waste as expeditiously as possible, and to minimize threats to human health and the environment caused by waste nevertheless generated. 42 U.S.C. [section] 6902(b) (1994).

(20) Id. [section] 6924(j), (m).

(21) See, e.g., id. [section] 6922 (listing requirements applicable to generators of hazardous waste); id. [section] 6923 (requirements applicable to transporters).

(22) Id. [section] 6924 (j), (m).

(23) Edison Elec. Inst. v. EPA, 996 F.2d 326, 335 (D.C. Cir. 1993) ("As amended in 1984 by the HSWA, RCRA was clearly intended to provide draconian incentives--such as the prohibition of all forms of land disposal for specified wastes--for the rapid development of adequate treatment and disposal capacity.").

(24) Hazardous Waste Treatment Council v. EPA, 886 F.2d 355, 357 (D.C. Cir. 1989) ("[P]ermitting storage of large quantities of waste as a means of forestalling required treatment would involve health threats equally serious to those posed by land disposal.").

(25) Edison Elec. Inst., 996 F.2d at 335 ("[Technology-forcing] incentives would be significantly diminished to the extent that generators could rely on the possibility of storing their wastes indefinitely.").

(26) See, e.g., id. at 334-35 ("[S]ection 3004(j) cannot be read to sanction the indefinite storage of potentially unlimited amounts of mixed wastes while treatment methods or disposal capacity is being developed."); 129 CONG. REC. 27,669 (Oct. 6, 1983) (statement of Rep. Edwin Forsythe (R-NJ)) ("Storage based only on some vague hope for a future development of appropriate treatment is no longer acceptable.").

(27) Atomic Energy Act of 1954, 42 U.S.C. [subsection] 2011-2297g-4 (1994).

(28) Id. [section] 6903(41); id. [subsection] 2021(b), 2023(c).

(29) Id. [subsection] 2021(b), 2023(c) (low-level radioactive waste that is either a listed waste or characteristic waste).

(30) JOHN HARTE ET AL., TOXICS A TO Z: A GUIDE TO EVERYDAY POLLUTION HAZARDS (1991). Toluene is a chemical derived from crude oil that can adsorb into sediment and cause long-term exposure effects to aquatic life. Id. at 415-17. Xylene and CFCs are often used as solvents and can damage the skin, liver, blood, and central nervous system. Id. at 109-10. PCBs are considered highly toxic to humans and other animals, affecting immune, respiratory, and reproductive systems. Id. at 383-84.

(31) Id. at 245-46. Lead accumulates in the bones of those exposed and primarily can cause harm to the nervous system, blood, and behavior of the exposed individual. Id. at 334. Cadmium bioaccumulates as it passes through the environment by way of the natural food chain. It can cause effects such as heart disease, anemia, skeletal weakening, depressed immune system, and kidney and liver disease. Id. at 245.

(32) CONG. OF THE U.S. OFFICE OF TECH. ASSESSMENT, PARTNERSHIP UNDER PRESSURE: MANAGING COMMERCIAL LOW-LEVEL RADIOACTIVE WASTE 81, 85 (1989) [hereinafter PARTNERSHIP UNDER PRESSURE]; MURRAY, supra note 4, at 131.

(33) PARTNERSHIP UNDER PRESSURE, supra note 32, at 9.

(34) 42 U.S.C. [section] 10101(16) (1994). Low-level waste includes all radioactive waste that is not classified as high-level waste, spent fuel, or uranium mill tailings. Id.

(35) A half-life is the length of time it takes for half of any radioactive sample to decay. MURRAY, supra note 4, at 12.

(36) PARTNERSHIP UNDER PRESSURE, supra note 32, at 83 tbl.4-2.

(37) KONRAD B. KRAUSKOPF, RADIOACTIVE WASTE DISPOSAL AND GEOLOGY 113 (1988).

(38) MURRAY, supra note 4, at 20. Dose varies for different types of radiation and is dependent on the amount of energy absorbed by the individual. Id.

(39) Id. at 92-93.

(40) KRAUSKOPF, supra note 37, at 113. Damage to tissues from long-term exposure is cumulative, so that isolation from the surface environment is important for low-level waste just as it is for high-level varieties. Id.

(41) See discussion supra Part II.C.

(42) EPA RADIATION PROGRAM MIXED WASTE TEAM, NATIONAL PROFILE OF COMMERCIALLY GENERATED MIXED WASTE SUMMARY [hereinafter NATIONAL PROFILE], at http://www.epa.gov/radiation/mixed-waste/nat_prof.htm (last reviewed Nov. 29, 2000).

(43) Id. at 3.

(44) PARTNERSHIP UNDER PRESSURE, supra note 32, at 85,

(45) Id. Table 4-3 displays a comprehensive chart of which wastes are produced by which generators. Id. at 86 tbl.4-3.

(46) See NATIONAL PROFILE, supra note 42, at 6 (outlining the primary reasons for generators' reluctance to treat and dispose of low-level mixed waste).

(47) 42 U.S.C. [section] 6903(1) (1994).

(48) Id. [subsection] 2021(b), 2023(c) (1994).

(49) 586 F. Supp. 1163 (E.D. Tenn. 1984).

(50) Id. at 1167.

(51) 42 U.S.C. [section] 6924(j), (m) (1994).

(52) "Radionuclide" is another term for radioactive isotope. MURRAY, supra note 4, at 15. A radioactive isotope is a natural or man-made isotope that is "unstable and can change into another form." Id. at 11.

(53) State Authorization to Regulate the Hazardous Components of Radioactive Mixed Wastes Under the Resource Conservation and Recovery Act, 51 Fed. Reg. 24,504, 24,504 (July 3, 1986) (stating that "wastes that contain both hazardous wastes and radioactive wastes are subject to RCRA [regulation]").

(54) Hazard Ranking System, 55 Fed. Reg. 51,532, 51,583 (Dec. 14, 1990) (codified at 40 C.F.R. [section] 300 app. A(7) (2001)).

(55) 40 C.F.R. [section] 300 app. A(7) (2001).

(56) Id. [section] 268.35(d).

(57) Policy on Enforcement of RCRA Section 3004(J) Storage Prohibition at Facilities Generating Mixed Radioactive/Hazardous Wastes, 56 Fed. Reg. 42,730, 42,731 (Aug. 29, 1991).

(58) Edison Elec. Inst. v. EPA, 996 F.2d 326, 337 (D.C. Cir. 1993) ("[S]ection 3004(j) clearly proscribes the indefinite storage of wastes pending the development of treatment and disposal capacity. We wish to emphasize that we are not unsympathetic to the hardships that this decision implies for mixed waste generators.").

(59) Subtitle C of RCRA governs hazardous waste. 42 U.S.C. [section] 6921 (1994).

(60) See Storage, Treatment, Transportation, and Disposal of Mixed Waste, 66 Fed. Reg. 27,218, 27,221 (May 16, 2001) (explaining the factors that led EPA to propose this rule). USWAG is a national organization of power companies. Id. at 27,222.

(61) PARTNERSHIP UNDER PRESSURE, supra note 32, at 5.

(62) Id.

(63) NATIONAL PROFILE, supra note 42, at 5. The survey found four commercial treatment facilities offering services for mixed waste in 1990, and two more in development. Id.

(64) Id. at 5. The survey found that 95% of mixed waste produced in 1990 could be treated using existing treatment services. Id.

(65) NATIONAL PROFILE, supra note 42, at 5.

(66) Id. at 6.

(67) MURRAY, supra note 4, at 131.

(68) Id.

(69) NATIONAL PROFILE, supra note 42, at 6.

(70) See discussion infra Part III.

(71) See 42 U.S.C. [section] 6924(m)(1) (1994) (requiring EPA to set "levels or methods of treatment ... which substantially diminish the toxicity of the waste or substantially reduce the likelihood of migration of hazardous constituents for the waste so the short-term and long-term threats to human health and environment are minimized").

(72) Generators of hazardous waste would not only be subject to the land disposal restrictions, but would also have to comply with other subtitle C requirements for generators of hazardous waste including costly monitoring systems. See discussion infra Part IV.C (comparing RCRA and NRC requirements for generators storing waste).

(73) See, e.g., 10 C.F.R. [section] 50 (2001) (describing licensing requirements for nuclear production and utilization facilities).

(74) Storage, Treatment, Transportation, and Disposal of Mixed Waste, 66 Fed. Reg. 27,218, 27,222 (May 16, 2001).

(75) Id. The validity of this claim is debatable. See discussion supra Part II.C.

(76) 40 C.F.R. [section] 266.220 (2001).

(77) RCRA prohibits storage of restricted waste (including mixed waste), unless such storage is "solely for the purposes of the accumulation of such quantities of hazardous waste as are necessary to facilitate proper ... disposal." 42 U.S.C. [section] 6924(j) (1994).

(78) "Onsite" includes other areas considered within the same facility, so the waste may be moved around between areas of the facility without triggering jurisdiction. 40 C.F.R. [section] 260.10 (2001).

(79) Id. [section] 266.225.

(80) The AEA gives states the authority to regulate radioactive waste "below regulatory concern of Nuclear Regulatory Commission." 42 U.S.C. [section] 2023 (1994).

(81) While such waste may no longer be subject to the AEA, it is still hazardous under RCRA. See 40 C.F.R. [section] 261.3 (2001) (defining hazardous waste).

(82) See supra notes 34-36 and accompanying text.

(83) 42 U.S.C. [section] 6934 (1994); 40 C.F.R. [section] 262.34 (2001).

(84) 40 C.F.R. [subsection] 264.143, 264.145-.149 (2001).

(85) Id. [section] 266.255.

(86) Id.

(87) Approach to Reinventing Regulations on Storing Mixed Low-Level Radioactive Waste, 64 Fed. Reg. 10,064 (Mar. 1, 1999).

(88) EPA, COMMENT SUMMARY DOCUMENT: APPROACH TO REINVENTING REGULATIONS OF STORING MIXED LOW-LEVEL RADIOACTIVE WASTE; ADVANCE NOTICE OF PROPOSED RULEMAKING (ANPR) 1 (1999) [hereinafter COMMENT SUMMARY].

(89) Id. at 83-84 exhibit 6.

(90) Id.

(91) See id. at 2-6 (summarizing comments of generators who wanted the exemption extended to offsite waste, to cover all generators, and to include all kinds of waste).

(92) See id. at 12 (survey of comments on whether NRC regulations are sufficient to protect against RCRA hazards). Among those agencies with concerns offering conditional acceptance of the regulations were the Washington Department of Health, the Environmental Protection Branch and the Radiation Safety Branch of the Division of Safety, Office of Research Services of the National Institutes for Health, Texas Natural Resource Conservation Commission, and the Idaho Department of Environmental Quality (DEQ). Id. Those agencies that thought the NRC guidelines inadequate included Los Angeles DEQ, New York State Department of Environmental Conservation, and the Illinois Department of Nuclear Safety. Nine of the 13 state government environmental or health agencies had concerns, while only three of the 59 generators expressed doubt that the guidelines would be sufficient. Id.

(93) Id. at 6. One generator explained, "it is very expensive to dispose of this waste on a 90-day time schedule." Id.

(94) See discussion infra Part IV.C (examining RCRA's goals of protecting human health and the environment).

(95) 42 U.S.C. [section] 6921(b)(2)(A)-(B) (1994) (excludes mining and oil production waste); id. [section] 6921(i) (excludes household waste); id. [section] 6939(a) (excludes domestic sewage).

(96) Id. [section] 6921(b)(1) (requiring EPA to base its regulations identifying the wastes that will be subject to regulation under RCRA on the criteria listed in section 6921(a)).

(97) Military Munitions Rule: Hazardous Waste Identification and Management; Explosives Emergencies; Manifest Exemption for Transportation of Hazardous Waste on Right-of-Ways on Contiguous Properties, 62 Fed. Reg. 6622 (Feb. 12, 1997) (delaying classification of military munitions as waste until they are removed from range and classified as "discarded," making them subject to RCRA jurisdiction).

(98) Joshua E. Latham, Comment, The Military Munitions Rule and Environmental Regulation of Munitions, 27 B.C. ENVTL. AFF. L. REV. 467, 480-88 (2000).

(99) Storage, Treatment, Transportation, and Disposal of Mixed Waste, 66 Fed. Reg. 27,218, 27,222 (May 16, 2001).

(100) Solid Waste Disposal Act Amendments of 1992, Pub. L. No. 102-386, 106 Stat. 1513 (1992) (codified as amended at 42 U.S.C. [section] 6924(y) (1994 & Supp. III 1997)).

(101) 42 U.S.C. [section] 6924(y) (1994 & Supp. III 1997); Latham, supra note 98, at 478.

(102) 146 F.3d 948 (D.C. Cir. 1998).

(103) Id. at 958 (noting that there was "nothing in [[section] 6924(y)] that would restrict the ability of the EPA to grant conditional exemptions for military munitions").

(104) See Latham, supra note 98, at 488 ("In enacting the FFCA ... Congress recognized the potentially debilitating effect that EPA regulation of military munitions might have on combat readiness and the DOD's fundamental national defense mission.").

(105) See H.R. REP. No. 102-111, at 28 (1991), reprinted in 1992 U.S.C.C.A.N. 1287, 1311 ("RCRA regulations must clearly be modified so that the military can conduct training exercises that fulfill their fundamental purpose of training soldiers.").

(106) 42 U.S.C. [section] 6924(y)(1) (1994 & Supp. III 1997) (instructing the Administrator to propose "after consulting with the Secretary of defense and appropriate state officials, regulations identifying when military munitions become hazardous waste for the purposes of [subtitle C] and providing for the safe transportation and storage of such waste").

(107) See Storage, Treatment, Transportation, and Disposal of Mixed Waste, 66 Fed. Reg. 27,218, 27,221 (May 16, 2001) ("With this rule we are responding to the concerns of mixed waste generators regarding the burden and duplication of dual regulation.").

(108) See Latham, supra note 98, at 483-85 (discussing specific uses of military munitions that exempt them from RCRA regulation).

(109) Id. at 485-86.

(110) 40 C.F.R. [section] 266.230(b) (2001).

(111) 996 F.2d 326, 337 (D.C. Cir. 1993).

(112) Id. at 337.

(113) Id. at 328.

(114) Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). Chevron articulated a test for reviewing administrative actions. The first question is "whether Congress has spoken to the precise question at issue." Id. at 842. The court must determine this by looking at the "particular statutory language at issue, as well as the language and design of the statute as a whole." Edison Elec. Inst., 996 F.2d at 334 (quoting K Mart Corp. v. Cartier, 486 U.S. 281,291 (1988)). If the statute is clear, that is the end of the matter. Chevron, 467 U.S. at 842-43. If the statute is ambiguous, the court must determine whether the agency's interpretation is reasonable. Id. at 843.

(115) Edison Elec. Inst., 996 F.2d at 337.

(116) Id. at 335.

(117) Id.

(118) Id. ("[T]he fact that Congress has explicitly provided a statutory mechanism to deal with the contingency of inadequate treatment or disposal capacity weighs heavily against a reading of [[section] 6924(j)] that would permit storage to become an alternative avenue for dealing with such shortages.").

(119) 42 U.S.C. [section] 6924(h)(2)-(3) (1994).

(120) Edison Elec. Inst., 996 F.2d at 336.

(121) "Representative Forsythe remarked that under section 3004(j), `storage based only on some vague hope of future development of appropriate treatment is no longer acceptable." Id. at 336 (quoting 129 CONG. REC. 27,666 (Oct. 6, 1983)).

(122) Edison Elec. Inst., 996 F.2d at 336 (stating that "courts have not shrunk from adopting onerous interpretations of statutory provisions where required by the clear intent of Congress").

(123) 969 F.2d 1122 (D.C. Cir. 1992).

(124) See id. at 1130-32. The court likened this dual regulatory structure to one that exists in the Clean Water Act, which allows dual jurisdiction by states, and the Nuclear Regulatory Commission over liquid effluents from nuclear facilities. Id. at 1131.

(125) See Storage, Treatment, Transportation, and Disposal of Mixed Waste, 66 Fed. Reg. 27,218, 27,221 (May 16, 2001). The regulation preamble explained the need to address dual regulation concerns:

   [M]embers of the regulated community have informed us that the combination
   of ... requirements for low-level mixed waste is burdensome, duplicative,
   and costly.... [O]ther mixed waste generators have expressed concerns about
   limited capacity of low-level mixed waste treatment and disposal ...
   because of the very limited disposal capacity.... [W]e believe it is
   appropriate to provide safe and legal alternatives for the disposal of
   low-level mixed waste.

Id.; see also discussion of MW Rule supra Part III.

(126) 42 U.S.C. [section] 6902(a) (1994).

(127) Id. [section] 6902(a)(4) (listing objectives of RCRA including "assuring that hazardous waste management practices are conducted in a manner which protects human health and the environment"); id. [section] 6902(a)(11)(b) (declaring it national policy that "[w]aste ... should be treated, stored, or disposed of so as to minimize the present and future threat to human health and the environment").

(128) See discussion supra Part II.

(129) EPA, COMPARISON OF THE EPA's RCRA REQUIREMENTS AND THE NRC's LICENSING REQUIREMENTS FOR THE ON-SITE TREATMENT (IN TANKS & CONTAINERS) AND STORAGE OF LOW-LEVEL MIXED WASTES AT NUCLEAR FACILITIES 1 (1999) (final draft document) [hereinafter COMPARISON].

(130) Id.

(131) Id.; see also 42 U.S.C. [section] 6902(a) (1994) (stating objectives of RCRA to promote the protection of human health and the environment).

(132) 42 U.S.C. [subsection] 6921-6939 (1994 & Supp. III 1997).

(133) See COMPARISON, supra note 129, at 1. NRC's general radiation protection standards require licensees of nuclear power plants to ensure that radioactivity levels released to the environment are as low as reasonably achievable (ALARA). Id. at 7; see also EPA & NRC, Joint Guidance on the Storage of Mixed Low-Level Radioactive and Hazardous Waste, Draft for Comment (Aug. 1995) (comparing the regulatory formats from EPA's perspective), at http://www.epa.gov/radiation/mixed-waste/mw_pg27.htm (last modified Mar. 4, 1998).

(134) COMMENT SUMMARY, supra note 88, at 14. The State of Illinois Department of Nuclear Safety offered the example that the NRC standards would not sufficiently protect against chemical hazards of mixed waste because the NRC regulations do not cover the corrosive nature of nitric acid or the flammability of methyl ethyl keytone. Id.

(135) Id. at 13-14.

(136) COMPARISON, supra note 129, at 5.

(137) Id. at 37.

(138) 42 U.S.C. [section] 6924(p), (u), (v) (1994); 40 C.F.R. [section] 264.98-.100 (2001).

(139) For an example of the testing procedures used, see ENVIRONMENTAL REVIEW OF THE COMMERCIAL LOW-LEVEL RADIOACTIVE WASTE DISPOSAL FACILITY WITHIN THE U.S. DEPARTMENT OF ENERGY'S HANFORD SITE, ENVIROSPHERE COMPANY 2-61 tbl.2-13 (1985) [hereinafter HANFORD REVIEW].

(140) See generally COMPLEX CLEANUP, supra note 2.

(141) See, e.g., id. at 34 (detailing groundwater contamination beneath INEEL).

(142) See HANFORD REVIEW, supra note 139, at 2-61 tbl.2-13 (results of groundwater monitoring near Richland facility).

(143) See 42 U.S.C. [section] 6901(b) (1994) (demonstrating Congress was concerned with inadequate treatment and management of waste which could lead to environmental and health problems like contaminated drinking water).

(144) Id. [section] 6902(a)(9).

(145) Id. [section] 6902(a)(6).

(146) Id. [section] 6924(j).

(147) Edison Elec. Inst v. EPA, 996 F.2d 326, 335 (D.C. Cir. 1993).

(148) 42 U.S.C. [section] 6924(j) (1994).

REBECCA LEONARD, Articles Editor, Environmental Law, 2001-2002, J.D. and Certificate in Environmental and Natural Resources Law expected 2002, Northwestern School of Law of Lewis & Clark College; B.A. 1998, University of California at Santa Barbara (Environmental Studies and Communications). The author would like to thank Janice Weis, Assistant Dean, Environmental and Natural Resources Program, and Ric Asne for their guidance and encouragement in preparing this Comment. The author also thanks Kevin Cassidy and the staff of Environmental Law for their editorial assistance.