The U.S. Nuclear Regulatory Commission in stepping on federal law and its own regulations in re-assuming authority over disposal of “very low-level” radioactive waste by power plants in agency agreement states, according to the trade group for the nuclear industry.
In a Feb. 28 letter to the NRC, Nuclear Energy Institute General Counsel Ellen Ginsberg called on the agency to formally rescind a 2016 regulatory update and return to its position set in 1986.
The letter was posted to the NRC website last week. In an April 4 response, the regulator acknowledged receiving Ginsberg’s letter and said a more detailed reply would be sent at a later date.
The Nuclear Energy Institute expects it will be several months before it receives a full response from the NRC, a spokesperson said Tuesday. “Since a decision has not be made, we are waiting to consider options for next steps.”
There are currently 38 agreement states to the NRC, which assume much of the authority for regulating nuclear facilities and materials within their borders. In a 1986 information notice, the federal agency determined it had no legal standing to review and rule on requests for disposal from nuclear reactor facilities in those states for very low-level radioactive waste – an unofficial designation for the least radioactive form of Class A radioactive waste, which is the least-hazardous form of low-level waste.
However, in a November 2016 regulatory issue summary, the NRC said a subsequent regulatory review resulted in a 2012 finding that the 30-year-old document “did not provide the correct information regarding regulatory approval to dispose of very low-level waste.” Production and utilization facilities must request disposal approval from the NRC even if they are located in an agreement state, according to the update.
For the purpose of the regulatory information summary, under federal regulations, production and utilization facilities effectively mean commercial reactors. They would also encompass reprocessing plants and accelerators that use special nuclear material, “but there aren’t any of those,” according to NRC spokesman David McIntyre.
Last year, the NRC issued a notice of potential violation of federal regulations to the South Texas Project nuclear power plant on alternative disposal of low-level waste for failing to request agency approval for off-site disposal, NEI spokeswoman Mary Love said by email. Texas in an NRC agreement state.
“This action raises generic concerns in relation to NRC versus Agreement State (which in this case was Texas) jurisdictions on this matter,” Love wrote.
The Washington, D.C.-based trade group first raised its concerns on the matter after the NRC issued the 2016 regulatory issue summary. Ginsberg then reaffirmed those objections in February.
The 1954 Atomic Energy Act sets out 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.
The Nuclear Regulatory Commission’s 2016 finding expands its authority beyond those limits, NEI said. “To the contrary, the Commission allows Agreement States to regulate LLW disposal,” Ginsberg wrote.
She added that a 1985 memorandum from the NRC Office of Executive Legal Director specifically found 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.
“In summary, NEI requests that the NRC … treat this letter as a post-promulgation comment on the agency’s new interpretation in RIS 2016-11, and publish a statement in the Federal Register rescinding RIS 2016-11 and reinstating the NRC’s prior position in IN 86-90 and the referenced OELD Opinion,” Ginsberg wrote.
Very low-level waste largely encompasses contaminated soils, debris, and structural materials produced during decommissioning of nuclear facilities. Under current rules, it can be disposed of in four licensed facilities for low-level waste, all in agreement states, along with hazardous or municipal landfills via the federal alternative-disposal rules.
The NRC this spring is expected to issue a staff report on potential options for updating existing federal regulations on VLLW disposal.
