John T. Greeves, Michael J. Bell and C. William Reamer
United States Nuclear Regulatory Commission
ABSTRACT
Since mid-1995, representatives of national governments have been meeting periodically at IAEA Headquarters in Vienna, Austria, to participate in the development of an international Convention on the Safety of Radioactive Waste Management (Waste Convention). Work on the Waste Convention grows out of a request of the IAEA General Conference in 1993. The Convention on Nuclear Safety (CNS), approved and signed by the U.S. in 1994, affirmed the need to "begin promptly the development of an international convention on the safety of radioactive waste management." In Energy Secretary O'Leary's remarks to the IAEA General Conference in September 1995, she urged the rapid negotiation and completion of a document acceptable for signature that would provide broad coverage of radioactive waste management activities, including treatment, conditioning, and storage prior to disposal.
When completed, the Convention will contain obligations for the "contracting parties" (i.e., countries ratifying, accepting or approving the instrument and as to whom the convention enters into force) to establish and maintain a legislative and regulatory framework to govern the safe management of radioactive waste, implement measures concerning general safety considerations in waste management activities, and establish safety in the siting, design, construction, operation and closure of waste management facilities. If ratified by the U.S. Senate, it will have the legal authority of a treaty, and U.S. laws and regulations, if in conflict, will have to be brought into conformance. Throughout the drafting process, a goal of the NRC staff has been to avoid conflicts with the regulations of NRC or its Agreement States, and to avoid placing new requirements on our licensees.
Six meetings have been held to negotiate the articles of the Convention, and a seventh meeting is scheduled to begin on the sixth of March and run through the fourteenth of March. The meetings are chaired by Professor Alec Jean Baer of Switzerland and have been attended by more than 120 representatives from over 45 countries. The US delegation is led by the U.S. Department of State, and usually involves representatives of the NRC, DOE, and EPA. The views of other Federal agencies and NRC's Agreement States have been solicited, so that they can be brought to the table in the discussions. We have also briefed the Low-Level Waste Forum, which represents the States and State Compact groups developing low-level waste disposal facilities, to make them aware of aspects of the Convention that could impact low-level waste disposal, and we have been soliciting comments from the Nuclear Energy Institute, to obtain the views of the nuclear utility sector. We think the discussions have reached the point where it is now timely to provide visibility and to obtain input from an even broader segment of the nuclear community.
The following are some of the major issues receiving the Group of Experts (Group) attention during the meetings:
COVERAGE OF SPENT FUEL
The extent to which the management of spent fuel should be addressed in the Convention has been one of the most contentious issues in the discussions. A large majority of participants want management of spent fuel covered in the Convention, whether the spent fuel is considered a waste, or whether it is considered an asset to be reprocessed. A few who reprocess spent fuel and view it as a resource, remain adamant that spent fuel not be treated in the same instrument with radioactive waste. In the March 1996 meeting of the Group, a compromise appeared possible based on a "dual convention" that would separately cover both radioactive waste and spent fuel. However, at the June meeting, several member states said they would accept even this separate coverage of spent fuel only if it were limited to spent fuel that a Contracting Party had determined not to reprocess. Of course, limiting coverage to spent fuel that is not going to be reprocessed would result in only partial coverage of spent fuel, and a large quantity of spent fuel, identical in hazard to spent fuel destined for disposal, would not be covered. Thus, countries who favor coverage of spent fuel view this result as unsatisfactory. This is the most difficult issue that remains to be resolved in the upcoming meeting. The U.S. view has consistently been that the safe management of all spent fuel should be included within the scope of the Convention.
OVERLAP WITH CNS
One of the considerations has been whether there are any overlaps between the draft Waste Convention and the CNS, and particularly any overlaps that would create legal conflicts or cause practical problems in implementation. The Group noted that in some circumstances "radioactive waste" and "spent fuel," as defined in the Waste Convention, might well be situated at a "nuclear installation" within the meaning of the CNS, and that some CNS provisions would therefore have the potential, in particular circumstances, to cause duplicate or conflicting requirements, especially with regard to reporting. For example, there could be different reporting obligations under the two Conventions related to the same subject matter (i.e., radioactive waste and spent fuel), or the different reporting obligations might include differences in content and timing of reports (e.g., generic reporting vs. site-specific reporting, or the reporting of inventories of waste and spent fuel under one but not the other). The result could be double reporting (i.e., reporting on the same subject under both Conventions), or different reporting systems for essentially similar facilities depending on whether they are on or off the site of a "nuclear installation" under the CNS. However, the Group could identify no conflict between the provisions of the two Conventions and, therefore, no difficulties of a purely legal nature that would arise from the potential for overlap.
Initially, some experts thought the two Conventions should not overlap and, accordingly, identified a need for a clear delineation between them. Other experts pointed out, however, that such a delineation might result in an excessive focus on spent fuel and waste management issues in the CNS, as opposed to the safety of the nuclear plant. The consensus that has emerged on this issue is that the CNS should deal with broad principles for achieving safety at a nuclear installation, and details regarding the locations and inventories of spent fuel and radioactive waste will be dealt with in the Waste Convention. The experts agreed that problems due to overlap in scope could be dealt with in the meetings of the Contracting Parties to the Waste Convention, in light of the experience gained by the Contracting Parties to the CNS with its system of national reports. They also thought it important to monitor the progress of the national reporting process under the CNS after it enters into force, to incorporate lessons learned into the national reporting process for the Waste Convention.
DECOMMISSIONING
Although there is little doubt the convention covers wastes produced during the dismantling of nuclear power plants and other nuclear facilities, the Group is divided on how to cover the decommissioning process itself in the Waste Convention. Some members regard a facility undergoing decommissioning as a "waste management facility;" they, therefore, see no need to mention explicitly or provide separate obligations specifically aimed at decommissioning. Not all states, including the U.S., are prepared to adopt this view. Treatment of facilities undergoing decommissioning is one of the topics that will receive additional consideration in the next meeting.
TRANSBOUNDARY MOVEMENT
A number of outstanding issues remain regarding how to deal with transboundary movements of radioactive waste, including disused sealed sources, in the Convention.
Relationship to Basel Convention
The relationship of a Waste Convention to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal has been a topic of much discussion in the meetings of the Group. The intent is that the Waste Convention incorporate certain provisions of the non-binding IAEA Code of Practice on the International Transboundary Movement of Radioactive Waste, thereby maintaining consistency with the Basel Convention, which does not apply to transboundary movements of spent fuel and radioactive waste. Some of the details of the text of these provisions are still being developed.
Obligations Concerning Return of Used Sealed Sources From the outset, both the Chairman and some member states have urged the Group to include specific obligations concerning spent sealed sources in the Waste Convention. Their arguments appear to reflect a perception that such sources may not be acceptably covered, to the extent they are regarded as "waste," because they might be returned to the supplier as part of a private commercial arrangement. The draft Convention contains an obligation that contracting parties should not prevent the return of spent sources that are being returned to a manufacturer qualified to receive and possess the disused sealed sources. There is a sentiment among a minority in the Group that the obligation should go further, and perhaps require suppliers to accept return of spent sources, even without regard to the existence of a private arrangement requiring such return. The majority of states has not accepted this view, and the current draft does not contain such a requirement.
Coverage of Movements Involving States not Parties to the Convention
Attention was given to whether transboundary movement obligations in the Waste Convention should apply if one of the parties to a movement (i.e., either the state of origin or the state of destination), or a transit state, was not a contracting party to the convention. Although the Group's sentiment appears to favor applying the obligations to all movements of radioactive waste originating in or entering the territory of a contracting party, whether or not the other state involved was a contracting party, there is no consensus on this matter. These issues will be the subject of further discussion in the coming meeting.
SAFETY REQUIREMENTS, OPERATIONAL REQUIREMENTS AND DISCHARGES
Protection Beyond National Borders
One of the difficult issues that now appears to have reached resolution is the manner in which the convention treats the safety of waste management activities having potential impacts that extend beyond national boundaries. Some countries initially favored such situations to be governed by internationally endorsed standards. A convention requirement of this sort might accordingly require member states to incorporate into their national regulations a requirement to apply international standards. A large majority of the Group, including the U.S., did not agree that member states should be required to apply international standards in their national programs. They argued that such an obligation would be vague and open-ended, because any such standards might be subject to changes not under the control of the national regulatory body. The sentiment of the Group, however, is that contracting parties take international standards into account when setting national requirements, and wording to this effect was agreed to in the January 1997 meeting of the Group. The Group also acknowledged that a contracting party's performance in this regard could be a matter for discussion during peer review after the convention enters into force.
Discharges
A disagreement surfaced within the Group over how to apply the convention to discharges of radioactive effluents from waste management and other nuclear facilities. The disagreement reflects a difference in view over the term "discharge." One view is that discharges should be narrowly defined as controlled releases into the environment of radioactive effluents that are "within limits authorized by the regulatory body" and that originate from regulated facilities. Another view, however, is that this narrow definition might leave unauthorized releases outside the Convention and could present an opportunity for abuse. In the January meeting, it was agreed that provisions should be included in the Convention to ensure planned discharges are ALARA and within national dose limits, and that unplanned
discharges are promptly terminated and that adequate corrective measures are implemented. Detailed text to implement these concepts is still being developed.
REPORTING ON WASTE MANAGEMENT FACILITIES AND PAST PRACTICES
Like the CNS, the Waste Convention will be an "incentive convention," containing broad principles on the safety of radioactive waste management for member states to apply in their national programs. Further, like the CNS, contracting parties will periodically meet after the Convention enters into force, to review their progress in achieving the obligations in the convention. To effect this approach, the Convention will require that each contracting party submit a national report before the meeting of the parties, providing information on its national program and measures taken to implement the convention.
At the meeting of the Group, the member states continued to discuss the content of the national reports with particular attention to the obligation to provide an "inventory" of the radioactive wastes that are held in storage or have been disposed of at waste management facilities, as well as wastes that result from past practices. The present approach of the Group is to require a list of radioactive waste management facilities (i.e., facilities whose "primary purpose" is the management of radioactive waste), together with their location, main purpose and essential features. An inventory would also be required which would include a description of the material and other appropriate information on volume, activity and specific radionuclides, if available. A similar inventory would also be required with respect to wastes resulting from past practices.
WASTES FROM MILITARY OR DEFENSE PROGRAMS
Discussions continued on the convention's coverage of radioactive wastes resulting from military or defense programs. Two approaches under consideration are: 1) to allow contracting parties to voluntarily declare military or defense material as radioactive waste for purposes of the convention; and 2)mandatory coverage of wastes from military or defense programs that have been determined to be no longer required for military or defense purposes. The five nuclear weapons States as defined in the Non-Proliferation Treaty have discussed this issue extensively but as yet are unable to agree on an approach. There appeared to be some movement toward a compromise in the January meeting, and this will continue to be discussed in the upcoming meeting.
FUTURE ACTIVITIES
The Chairman has, from the beginning, set an aggressive and challenging schedule to produce a completed convention text that would be open for signature at the IAEA General Conference in September 1997. Adherence to such a schedule will require the Group to complete its drafting work by April 1997, in order to permit review of the text by the IAEA Board of Governors and convening a Diplomatic Conference before the September IAEA General Conference.
Because the discussions that take place in the meetings to draft the text of the Waste Convention are considered negotiating the text of a international treaty, the Group meetings are not public meetings, and the papers prepared for discussion at these meetings are not public documents. To facilitate NRC staff's discussions with the Agreement States and interested parties, we have therefore placed NRC staff trip reports of the meetings into our Public Document Room, an included draft Convention texts as attachments. These are now available to any interested parties. If the IAEA Board of Governors approves the draft Convention when it meets in June of this year, the IAEA will make it a public document. NRC staff are planning to make it widely available at this time -- what we have in mind is posting it on the World Wide Web on the NRC Home Page, with a mailbox for receiving public comments, much as we now do with proposed rules. Again, our goal would be to agree to a Waste Convention that would promote a high level of safety worldwide in managing radioactive wastes, but that would not impose burdensome new requirements on the NRC, Agreement States or our licensees. We would be looking for you to point out impacts we might have overlooked, so that before the U.S. signs the Convention, we would have greater confidence there would be no unintended burdensome impacts.