Jeremy L. Dillon
RW Monitor
10/10/2014
As the Texas Low-Level Radioactive Waste Compact Commission moves forward with its rule update, competitor EnergySolutions is raising questions about the legitimacy of Waste Control Specialists’ ability to accept exempt waste in its RCRA hazardous waste landfill. The Compact is currently undergoing a general rules update with a focus on better tightening its regulations on importation and exportation of waste. Also included in the update is a re-working of the Compact’s policy under rule §675.23, which adds language stating that the Compact’s policy is to “promote the health, safety, and welfare” of its citizens as well as to “distribute costs, benefits, and obligations among the party states.” EnergySolutions has argued the new language proved the WCS exempt waste cell was antithetical to Compact policy, bringing the exempt waste issue into a larger spotlight within the Compact’s rule update.
Compact Chairman Bob Wilson said this week the Compact will consider the issue in conjunction with its current rulemaking update. “This will be a Commission decision,” Wilson told RW Monitor. “Instead of having a subcommittee on this RCRA issue, I combined that subcommittee and the Rules Committee into one committee. They are now working on a combined draft to do all the rules at the same time. We hope to have a draft back at our November meeting of the Commission to at least look at. Then, we will probably vote on publishing it in the Texas Register, which is the first step we need to take to adopt it, at our December meeting.”
EnergySolutions Questions Public Safety/Disposal Cost Ramifications of Exempt Waste
EnergySolutions, using a working draft from the Compact Commission, questioned whether WCS’ exempt waste disposal capabilities fall in line with the Compact’s policies to protect public health and to protect disposal rates for in-compact generators, as well as other state compact disposal rates. “The recent exemption granted to WCS to dispose of LLRW in their RCRA Subtitle C facility significantly exceeds, by orders of magnitude, any exemption previously granted by a Federal or State regulator,” EnergySolutions spokesman Mark Walker said this week. “In addition, the Texas Compact should consult with other LLRW Compacts to ensure exportation of LLRW to the WCS Subtitle C facility does not raise jurisdictional concerns with those LLRW Compacts.”
EnergySolutions called for “an emergency rulemaking to prevent low-level radioactive waste (LLRW) or material that was low-level radioactive waste from being disposed at WCS’s exempt cell until permanent rules are adopted,” Senior Vice President of Regulatory Affairs Dan Shrum said in his Sept. 23 comments on the Compact’s working draft on its rules update. EnergySolutions claimed the exempt waste disposal and the processing of LLRW to meet exempt standards circumvents the Compact and the regulations and fees associated with it. “WCS received approval from the Texas Commission on Environmental Quality (TCEQ) to import LLRW waste into Texas for reclassification and ultimate disposal in their RCRA ‘Exempt Cell,’” Shrum said. “This Subtitle C facility was originally permitted to treat, store, and dispose of hazardous wastes—not LLRW. WCS is marketing this service as a way to circumvent the Compact’s rules requiring importation approval and as a way to circumvent the TCEQ’s requirement for Generator Certification. In addition to avoiding Compact rules regarding importation, this service also enables WCS to avoid paying fees and taxes on this waste, which is in direct contrast as to how WCS promoted their facility to the Texas Legislature and Andrews County.”
Shrum added that the Compact was taking on risk without financial benefit. With the increased disposal of exempt waste at the site, a disposal option that costs significantly lower than Class A disposal, the prices for Class A disposal for in-compact generators would increase due to the lack of disposal by others in the facility. “The Commission is required to consider the ‘projected effect, if any, on the rates to be charged for disposal of in-compact waste’ in §675.21(g)(i)(10) for waste that is exported for disposal to a non-party state,” Shrum said in his Sept. 4 comments. “The Commission recognizes that exportation of large waste volumes could result in higher disposal rates for in-compact generators due to reduced waste volumes being disposed at the Compact Facility. Similarly, the Commission should add this same condition to §675.23 since the importation rules would otherwise be bypassed allowing disposal of LLRW at the WCS RCRA Subtitle C facility which likewise will result in increased rates for in-compact generators in order to cover the high fixed costs to operate the Compact Facility.” In his subsequent letter, Shrum also argued this could apply to other Compact disposal facilities and their disposal pricing.
Shrum’s comments also questioned the safety and financial arguments of disposing of out-of-state exempt waste and LLRW waste that becomes exempt waste after processing. “Regarding Texas Compact policy, WCS has proposed that two types of waste streams are eligible for disposal at their RCRA Subtitle C cell – 1) waste that was exempted in the state of origin and shipped for disposal, and 2) waste that was shipped as LLRW but is deemed to be exempt waste as determined by WCS after the waste arrives in Texas. Both waste types pose numerous public-policy concerns for the Texas Compact,” Shrum said in his comments. “For example, can waste be imported into the Texas Compact as LLRW and NOT be disposed in the Compact Waste Facility? How does this importation fit within the Texas Compact’s mission of managing LLRW within its jurisdiction? With respect to waste that was originally LLRW but has become exempt in the state of origin, how does the Texas Compact manage the health and safety of the public, as well as financial risks associated with this activity?”
WCS: Exempt Waste Doesn’t Cut into Compact Revenue
WCS, for its part, has argued that the exempt waste does not affect the financials of Class A waste disposal, and may actually improve them. In response comments submitted Sept. 18, WCS President Rod Baltzer said that due to pricing and disposal regulations imposed by the Compact, the waste would have never gone to WCS in the first place. “The exempt waste would not go (has not gone) to the Compact Waste Facility (CWF) due to the higher cost compared to our competitor. Thus, there is no decrease in CWF revenue caused by the exemption process because the waste never would have been disposed in the CWF,” he said. “However, we believe the new exempt waste offering will generate new revenue for the CWF going forward. We believe that customers who previously had not shipped higher activity waste to WCS, because of cost, will ship both exempt waste and higher activity waste to WCS for a combined lower cost. Thus, by offering a solution for exempt waste, we may receive additional higher activity Class A waste at the CWF to fulfill our revenue requirement needs.”
WCS also argued that the public safety issue was well-covered by TCEQ’s stringent regulatory requirements. “When TCEQ permitted the exempt process at WCS, they did what they always do regarding protecting the public and the environment; they made WCS meet a more strenuous standard than anyone else in the industry,” Baltzer said. “Exemptions provided through the NRC process allow doses of ‘a few millirem’ to the public, while TCEQ limited WCS to a single millirem. The doses were determined using the same performance assessment model for our hazardous landfill that were also used to evaluate the CWF (i.e., a very conservative model). We believe it is the only hazardous landfill in the U.S. held to such standards.”
WCS: EnergySolutions of Being ‘Disingenuous’
Baltzer went on to call EnergySolutions “disingenuous” for its accusations. “We find it disingenuous that Energy Solutions has tried to equate intentionally downblending Class B/C LLW to Class A, which they do through a company called ResinSolutions, with exempting waste out of the NRC Part 61 disposal requirements due to its low activity nature,” Baltzer said. “Clearly, the exempt process allows WCS to provide the full range of solutions in a robust and cost-effective manner to the benefit of Andrews County and Texas.”
