Report 2007-114 Summary - June 2008

Low-Level Radioactive Waste:

The State Has Limited Information That Hampers Its Ability to Assess the Need for a Disposal Facility and Must Improve Its Oversight to Better Protect the Public

HIGHLIGHTS

Our review of the State's approach to managing low level radioactive waste (low-level waste) found the following:

RESULTS IN BRIEF

Public concern related to the disposal of low level radioactive waste (low level waste) will likely increase in the near future because entities in California that generate this waste are losing access to one of the two disposal facilities they currently use. In June 2008 the disposal facility in Barnwell, South Carolina, is scheduled to cease accepting low level waste from generators in many states, including California. Generators of low-level waste will need to consider alternative methods, including long term or off site storage, to deal with their most radioactive low level waste. Unfortunately for decision makers in California, the implications of this pending closure and what it means for the State's public policy are not clear cut. The lack of its own disposal facility and incomplete data on its volume of low level waste significantly affect the State's current approach to managing low level waste.

In 1988 the State entered into an interstate agreement, known as the Southwestern Low Level Radioactive Waste Disposal Compact (Compact), for the management of its low level waste disposal needs. As the host state, California is responsible for establishing a low level waste disposal facility to accommodate the needs of member states for the first 30 years after a facility opens. However, the State's efforts to provide such a facility ceased in 1999, leaving generators in Compact states—Arizona, North Dakota, South Dakota, and California—the option of exporting the waste they generate to the only two low level waste disposal facilities—in South Carolina and Utah—that currently accept their waste. To do so, the generators need the approval of the Southwestern Low-Level Radioactive Waste Commission (Southwestern Commission), the Compact's administrative body.

Our review found that although the Southwestern Commission has an accurate understanding of its legal responsibilities and has appropriately assumed responsibility for approving the exportation of low level waste for disposal and recycling, its approach to approving these exportation requests is not consistent with federal law. Under the terms of the congressionally approved Compact, the Southwestern Commission must approve exportation requests by a two thirds vote of representatives from the member states. However, the Southwestern Commission has delegated this authority to the executive director, its employee.

The Southwestern Commission's counsel described the executive director's role in approving exportation petitions as essentially ministerial. However, the fact that the Southwestern Commission does not even ratify the executive director's decisions in handling disposal requests suggests that its delegation to the executive director is legally impermissible. Further, the Southwestern Commission's policy for handling the exportation of low level waste for recycling, which grants automatic approval of all such requests, provides weak oversight of the exportation process.

In some cases radioactive waste generators in California may ship their low level waste to Tennessee for processing and disposal under that state's Bulk Survey for Release (bulk release) program. Under this program, certain licensed facilities in Tennessee receive and process construction or demolition debris, asphalt, soil, wood, concrete, and other materials that contain levels of radioactive contamination that the Tennessee Department of Environmental Conservation has categorized as extremely low. After processing, the low level waste may be disposed of in designated municipal solid waste landfills in Tennessee. When low level or other waste is shipped from California for purposes of processing and subsequent disposal at the bulk release program in Tennessee, it is not shipped for purposes of ultimate disposal at a low level waste disposal facility, so approval by the Southwestern Commission is not legally required, nor is it within the authority of the Southwestern Commission to require a generator to seek approval because the waste will not ultimately be disposed of as low level waste. The report of an advisory committee to the Tennessee State Legislature issued in August 2007 states that what makes this program attractive to waste generators is that it provides a degree of regulatory ease that may not be available in other states. Therefore, it is likely the degree of regulatory ease is what makes this program attractive, as opposed to any practice or policy on the part of the Southwestern Commission. In analyzing whether the shipment of waste generated in California to this program subjects the State to liability, we did not become aware of any facts that would presently subject the State to liability. Nonetheless, any decision about the legality of the bulk release program rests with the courts. Moreover, a number of different laws may subject those who manage low level waste to liability if they violate the law or cause harm by their actions.

The Department of Public Health (department)1 also plays an important role in the State's oversight of low level waste, which includes licensing and inspecting those that possess sources of radiation and generate such waste. Our review found that the department has not complied with a 2002 executive order, D-62-02, that requires it to adopt dose-based decommissioning standards formally. Decommissioning is a process in which the department concludes that a physical location that formerly contained radiation is sufficiently clean for the public to use it safely and qualifies the location for release from further regulatory control. In 1998 the department's attempt to enforce a federal standard for decommissioning was challenged. In 2002 a court ruled that the department could not implement the federal decommissioning standard, or similar standard, without complying with the California Environmental Quality and Administrative Procedure acts. As a result, the department handled decommissioning on a case by case basis. Subsequently, the former governor issued an executive order directing the department to develop decommissioning standards that complied with the court order, but the department continues to use a decommissioning process that lacks public transparency and accountability.

The department's Radiologic Health Branch (branch) performs many of the oversight activities for radioactive materials or radiation emitting machines. The branch's oversight activities include inspecting entities that use radiation emitting machines, such as X ray equipment, or that possess radioactive material. Federal guidelines and state regulations prescribe the frequencies with which these inspections should occur, with more hazardous material or machines needing more frequent inspections. However, the branch's electronic data for ensuring that it conducts these inspections in a timely manner is not sufficiently reliable. Specifically, because the branch has poor management controls over data entry and because its data systems include inaccurate information, the branch cannot rely on its data systems for assessing inspection timeliness or for determining the size or extent of inspection backlogs. We found cases in which branch staff had incorrectly classified how frequently some inspections should occur, while in other cases the branch was unable to provide records of inspections that support the data appearing in its various data systems.

The branch also lacks documentation that describes how its data systems work and how these systems store information. Further, the department's information technology support staff does not know whether the data it provides to the branch is complete, acknowledging that the staff does not know why data reports exclude certain types of inspection data. The fact that the information technology staff has never resolved these issues with branch staff, along with our observations of limited coordination between these two groups, raises doubt as to whether the branch can adequately manage its inspection activities. Additionally, we found instances in which the branch did not conduct annual inspections of equipment or materials promptly. In two cases, inspections of equipment were late by more than a year. One of the materials inspections that we tested was more than two years overdue by the time the branch performed its review, and the branch had incorrectly classified the inspection as requiring an annual inspection.

Moreover, the branch continues to use the same data systems today that it determined needed replacing in 1996, 12 years ago. It has considered implementing three replacement data systems since 2001, when the Department of General Services suspended the Computer Utilization for Radiation Information and Enforcement project, intended to resolve issues caused by poor information management practices. The department states that the development of a department wide data system currently includes the branch's data needs and that the project's first phase, which supports the branch, should be complete in November 2010.

Although the branch has pointed to inadequate funding and a lack of staff as key areas that need to be addressed, its attempts to resolve these concerns have often lacked adequate analyses to demonstrate that its requests for additional resources are reasonable. In June 2005 the branch obtained approval from the Office of Administrative Law to change its fee structure. The branch funds the bulk of its operations through the fees it imposes on those licensed to possess radioactive material or radiation emitting machines and other sources. It claimed that the year end balance in the Radiation Control Fund was declining. However, in the absence of specific quantitative fiscal and workload analyses that would demonstrate how the new fees were calculated, the branch is unable to support the magnitude of the increases. We noted similar problems with its recent requests for more spending authority to hire additional staff. The branch's incomplete analyses failed to address the work backlog that it mentioned in its staffing requests. Further, these requests were based on data that were not current, and at times, were over three years old. It appears that the branch may not know how many staff members that it truly needs to accomplish all of its work, acknowledging that it has not fully evaluated its staffing needs since the mid 1990s.

The branch also lacks a reasonable explanation as to why it has not yet complied with state law enacted in September 2002 to obtain and report data on how much low level waste is stored in California or exported to other states for disposal. More than five years after the State imposed this requirement, the branch is still far from being able to report this information. In fact, the branch currently has only about 6 percent of one year's data entered. The State provided the department with $1.3 million in additional spending authority during fiscal year 2003-04 to implement a reporting system to compile this information; however, the department allowed to lapse its authority to spend more than $3 million for that budget year, choosing not to implement the reporting system.

In addition, branch staff members doubt whether the data collected will provide all the necessary information. The department recognized this problem and admits that it needs to clarify its reporting obligations with the Legislature. The branch's lack of data on low level waste storage and disposal hinders policymakers' ability to assess the State's need for a disposal facility. The lack of data also hinders the branch's own ability to develop a contingency plan that recognizes that one of the two available out of state disposal facilities will soon stop accepting low level waste from generators in California; the Barnwell, South Carolina, facility is scheduled to close its doors to low level waste from generators in many states, including California, in June 2008. Although state law requires the department to develop such a contingency plan, the department was unable to provide us with one during the audit. Instead, the department stated that this plan was last prepared in the early 1980s.

Finally, the branch lacks an adequate strategic plan. Although not required under law, its existing plan lacks best practice elements such as performance metrics, which would allow it to monitor its own performance and identify areas in need of improvement.

RECOMMENDATIONS

To provide greater public transparency and accountability for its decommissioning practices, the department should begin complying with the Executive Order D-62-02 and develop dose based decommissioning standards formally. If the department believes that doing so is not feasible, it should ask the governor to rescind this 2002 executive order.

To ensure that the branch uses sufficiently reliable data from its future data system to manage its inspection workload, the department should develop and maintain adequate documentation related to data storage, retrieval, and maintenance.

To make certain that the branch uses sufficiently reliable data from its current systems to manage its inspection workload, the department should do the following:

To ensure that the branch can sufficiently demonstrate that the fees it assesses are reasonable, the department should evaluate the branch's current fee structure using analyses that consider fiscal and workload factors. These analyses should establish a reasonable link between fees charged and the branch's actual costs for regulating those that pay specific fees. Further, the analyses should demonstrate how the branch calculated specific fees.

To make certain that it can identify and address existing work backlogs and comply with all of its federal and state obligations, the department should develop a staffing plan for the branch based on current, reliable data. The plan should involve a reevaluation of the branch's assumptions about workload factors, such as how many inspections an inspector can perform annually. The plan should also include the following components:

To inform the Legislature when it is likely to receive the information to evaluate the State's need for its own disposal facility, the department should establish and communicate a timeline describing when the report required by Section 115000.1 of the Health and Safety Code will be available. The department should also see that its executive management and the branch discuss with appropriate members of the Legislature as soon as possible the specific information required by state law that it cannot provide. Further, to the extent that the department cannot provide the information required by law, it should seek legislation to amend the law. Finally, when the branch has an understanding of the disposal needs for generators in California based on this data, it should develop an updated low level waste disposal plan.

To better manage its performance in meeting key strategic objectives, the branch should establish a new strategic plan that contains all essential elements, including performance metrics and goals that the branch believes would be relevant to ensuring its success.

AGENCY COMMENTS

The Southwestern Commission disagreed with many aspects of our audit report and its counsel believes the process by which the Southwestern Commission approves petitions is legally sufficient.

The department agrees with all but two of our recommendations. It disagrees with our recommendations concerning complying with the 2002 executive order and developing a low-level waste disposal plan that complies with the Health and Safety Code.

1 Effective July 1, 2007, the former Department of Health Services became two departments. One of these is the Department of Public Health, which inherited responsibilities for regulating sources of radiation. For simplicity, we use the term department throughout the audit report.