The U.S. Nuclear Regulatory Commission said this week it would not withdraw a 2016 finding re-establishing the scope of its authority to regulate disposal of very low-level radioactive waste from nuclear power plants.
The Nuclear Energy Institute, the trade association for the nuclear industry, in February requested the agency rescind Regulatory Issue Summary (RIS) 2016-11. At issue was whether NRC agreement states, which largely assume oversight of radioactive waste from the agency, can approve alternative disposal of very low-level waste for nuclear power plants within their borders.
After studying the matter, the federal agency determined that requests for approval of disposal of licensed material in such cases must be submitted to the appropriate licensor. For federally licensed production and utilization facilities and nuclear power plants, that is the NRC, according to a Sept. 16 letter from John Lubinski, director of the agency’s Office of Nuclear Material Safety and Safeguards, to NEI General Counsel Ellen Ginsberg.
The Washington, D.C.-based organization made clear Thursday it did not agree.
“The NRC has yet to resolve the concerns raised in our letter,” an NEI spokesperson said by email. “The agency still has not complied with the backfit rule, properly engaged stakeholders, or explained their novel legal interpretation. NEI is evaluating our options to get these issues addressed.”
Very low-level waste (VLLW) is an informal term for the least radioactive form of Class A radioactive waste, which is the least-hazardous type of low-level waste and represents about 90% of the total U.S. holding of that material. The waste type primarily covers contaminated soils, debris, and structural materials from decommissioning of nuclear facilities. Existing federal regulations allow disposal in the four licensed U.S. low-level waste facilities, or in hazardous or municipal waste landfills not specifically licensed for that material via applications for alternative disposal.
Regulatory Issue Summary 2016-11 was intended as a corrective to a 1986 information notice in which the NRC said it had no legal standing to review and approve requests for VLLW disposal from nuclear reactor plants in agreement states. There are currently 38 agreement states, and the NRC is considering an application from Vermont.
The federal agency said in 2016 it had four years earlier determined the 1986 information notice “did not provide the correct information regarding regulatory approval to dispose of very low-level waste.” Instead, facilities covered by federal regulations for licensing of nuclear power plants and for production and utilization facilities must receive NRC approval to dispose of very low-level waste even if they are located in an agreement state, the update says.
In a February letter to the regulator, Ginsberg said the approach laid out in the regulatory issue summary breaches federal law.
Specifically, according to Ginsberg, the 1954 Atomic Energy Act establishes two specific areas in which the NRC retains authority over low-level waste disposal in agreement states: disposal into the sea or ocean of byproduct, source, or special nuclear waste materials; and disposal of the same types of materials that pose a sufficient hazard as to require a license from the commission. Beyond that, “the Commission allows Agreement States to regulate LLW disposal,” Ginsberg wrote.
The NEI attorney also highlighted a 1985 memorandum from the NRC Office of Executive Legal Director, which she said specified that the Atomic Energy Act and NRC regulations require the agency to “maintain authority” for handling and storage of low-level waste at reactor sites, but that disposal outside the site would fall under the purview of the agreement states.
Lubinski’s letter to Ginsberg was preceded by a Sept. 6 meeting on the regulatory issue summary between NRC and NEI officials. Also attending were representatives of Waste Control Specialists and EnergySolutions, which operate three of the four licensed low-level waste disposal sites (all in agreement states), and the South Texas Project Nuclear Operating Co.
In the letter, Lubinski reaffirmed the NRC’s commitment at the meeting to streamline its process for reviewing requests for alternative disposal of VLLW, “particularly in cases where an Agreement State may have already approved or exempted a facility that would receive the VLLW that is subject to the … request.”
The NRC has not yet made any decisions on its methodology for streamling the reviews, an agency spokesman said Thursday. The regulator receives “a handful” of requests each year to approve alternative disposal, he added by email.
In 2018, the NRC issued a notice of potential violation of federal regulations to the South Texas Project nuclear power plant in Bay City on alternative disposal of low-level waste for failing to request agency approval for off-site disposal, NEI said earlier this year. The NRC spokesman said the agency in that case exercised “enforcement discretion.”
Staff at the federal agency “will consider enforcement discretion on a case-by-case basis, as appropriate,” for NRC power plant and production and utilization licensees that might have sought VLLW disposal approval from agreement states, Lubinski wrote.
NRC Says Recent VLLW Disposal Directives Don’t Cover Waste Control Specialists
In a separate letter Monday, Lubinski said the NRC directives in recent years regarding disposal of very low-level radioactive waste from nuclear power plants do not apply to the facility operated by Waste Control Specialists (WCS) on its West Texas property.
Lubinski was responding to a July 17 letter from WCS President and Chief Operating Officer David Carlson.
In that letter, Carlson said the 2016 regulatory issue summary and the 2018 enforcement action against the South Texas Project Nuclear Operating Co. had led to reluctance among certain utilities to send their very low-level waste for disposal at WCS’ Resource Conservation and Recovery Act cell.
The issue at hand is disposal of low-level radioactive waste by NRC licensees at an unlicensed facility that is not covered by low-level waste disposal rules from an agreement state to the federal agency, according to a return letter Monday from Lubinski to Carlson. However, Waste Control Specialists is regulated under the 1954 Atomic Energy Act, Texas’ agreement with the NRC, and the state’s equivalent rules to federal regulations on low-level waste disposal, the NRC official noted.
“Please feel free to share this letter with any of your utility customers with questions about … the permissible transfer of licensed material for disposal,” Lubinski wrote to Carlson.
