Frequently Asked Questions from the Legislative Audit:
Division of Radiation Control Performance Audit

How often does the DRC conduct onsite inspections at EnergySolutions? Could it do more?

DRC conducts unannounced inspections onsite almost daily. Shipments are received at the site Monday through Friday. DRC currently inspects between 2,000-3,000 shipments of the 5,000 to 7,000 shipments received annually. The Division agrees that additional oversight measures could enhance its compliance evaluations for shipments received at Clive and has already expanded its inspection protocols to include this additional oversight.

How can the DRC be sure that waste sent by generators doesn’t include Class B and C waste? Should the DRC conduct onsite sampling of waste before shipment to verify that the waste is Class A?

The DRC understands that Utah’s ban on Class B and C low-level waste presents public concerns about proper waste classification at generator sites. DRC inspectors will need to coordinate with the appropriate federal or state regulatory authority in order to review onsite operations at out-of-state waste generators. The additional enforcement authority will need to be put in place to address matters related to waste classification performed by out-of-state waste generators.

A new low-level radioactive waste (LLRW) facility in Texas (Waste Control Specialists) licensed to dispose of low-level Class A, B and C wastes uses a program similar to Utah’s GSA permit program. Texas requires out-of-state generators to perform self-audits on waste slated for disposal at WCS rather than relying on state personnel. This reflects the current regulatory framework and common practice for LLRW disposal in state and federal environmental programs.

Based on the audit’s recommendations, the DRC will work with the Radiation Control Board to develop and adopt rules that would extend DRC’s authority to conduct on-site audits for out-of-state generators. This additional authority would entail significant costs for out of state travel, sampling equipment, mobile computer support, lab analysis, and software programs to perform calculations and would require the DRC to amend its radioactive materials license and receive reciprocity approval for on-site sampling outside Utah in order to handle and manage waste samples containing radioactive materials.

There have been past instances in which 23 containers exceeding Class A criteria were accepted and disposed of at EnergySolutions. What can be done to prevent this from occurring again?

This is a matter that the DRC takes very seriously. In 2010, EnergySolutions notified the DRC that during a self-performed audit it discovered it had accepted and disposed of 23 containers of waste, received in a total of 15 shipments, which exceeded Class A criteria. This was due to a calculation error in its Electronic Waste Classification Waste (EWIS) computer. The DRC issued a Notice of Violation and levied an $80,000 fine on EnergySolutions as well as separate fines against the individual waste generators.

The calculation error has been remedied. In addition, EnergySolutions was required to take corrective actions in its waste acceptance process, including additional review and approval on incoming shipments whose manifest show the isotopes contained in the waste to be at 75% of Class A limits. EnergySolutions was also required to perform quarterly checks on its EWIS system to ensure that the waste classification calculations are performing correctly. DRC agrees that more frequent observations of waste sampling and analysis and validating waste classification through computational methods could improve disposal oversight.

By state law, the maximum civil penalty for violations is capped at $5,000 per violation. The DRC cannot assess civil penalties in excess of this statutory limit unless it is changed by the Legislature.

The audit states that DRC and EnergySolutions “mutually agreed” to allow the disposed waste from these 23 containers to remain in the waste embankment. Wouldn’t it have been more protective of public health and safety to extract the waste and send it back? Did the DRC rely exclusively on the EnergySolutions technical report recommendation in its decision allowing EnergySolutions to leave the waste in place?

The DRC reviewed and evaluated the EnergySolutions report and concurred with its findings that excavating the waste posed a greater exposure risk to workers and the public than leaving it in place. The DRC placed a technical assistance request with the Nuclear Regulatory Commission (NRC) to review EnergySolutions’ justification as well as DRC’s evaluation and rationale for its concurrence. The NRC reaffirmed DRC’s findings in a March 2012 Evaluation Report.

It is important to note that the waste from the 23 containers was bulk-type waste material emptied from the shipping container and spread over a waste lift in the disposal area. The use of waste lifts is typical for Class A waste disposal. Waste lifts can cover a large area, from a quarter of an acre to over an acre, and can reach a depth of 1 to 2 feet. Since the shipments arrived over a ten year period, the buried wastes were distributed horizontally and vertically across various lifts. This distribution lowered the total waste radionuclide concentrations by volume, effectively rendering them Class A.

The wastes in question were disposed of with other waste shipments, clean soils, and fill material. Removal would have required the excavation of every lift that contained even a portion of the wastes from these 23 containers. The excavation of these lifts and the transport of the waste back to the generators would have exposed workers and the public to a higher dose of radiation than leaving the waste in place.

What about foreign waste?

The Northwest Interstate Compact (NWIC) has jurisdictional authority over the disposal of foreign LLRW within the party states to the compact. As a member of the compact, Utah is governed by NWIC policy. Foreign waste is not allowed to be disposed of in the Clive facility in accordance with a NWIC resolution and a federal appeals court decision reaffirming the jurisdictional authority of NWIC over foreign waste.

The Utah GSA permit program requires “a waste collector, waste processor, or waste generator shall ensure that all radioactive wastes within a shipment for disposal at a land disposal facility in the state is traceable to the original generators and states, regardless of whether the waste is shipped directly from the point of generation to the disposal facility.” Processors such as Studsvik who receive waste from multiple sources are required to trace the waste to its point of origin. The DRC reiterated this requirement that all processors must manifest and describe the source of all waste contained in their shipments in a March 2012 letter to GSA permit holders. This requirement for GSA permit holders further insures that foreign waste is not contained in shipments to the Clive facility.

EnergySolutions is required by the Compact to submit monthly reports to NWIC on waste shipments to the Clive facility. These reports identify, among other things, the state of origin of the waste, including any prior treatment or processing. The DRC will work with the NWIC to explore potential options associated with developing a more robust reporting methods and improved record-keeping and data collection to enforce the ban on foreign waste and ensure this waste is not disposed of in Utah.

Why does the DRC rely on self-policing by the regulated entity?

This regulatory framework is quite typical. Both federal and state regulatory programs are based on the fundamental premise that the regulated community bears the burden not only of complying with requirements and standards but also maintaining the documentation to demonstrate compliance with these requirements and standards. Regulatory agencies such as the DRC ensure compliance through their oversight authority.

The DRC has implemented measures to improve upon its current NRC-approved monitoring and compliance program and will continue to explore additional oversight measures for the low-level radioactive waste acceptance process for shipments to EnergySolutions.

Additional Information