Texas’ provider of low-level radioactive waste disposal, plus its state regulator and other stakeholders, have firmly opposed a potential interpretation of federal rules that could make it easier to ship so-called “very low-level waste” to landfills around the nation.
That puts Waste Control Specialists in line with most comments submitted in recent months, in writing and during two virtual public meetings, as the Nuclear Regulatory Commission considers the matter.
Dallas-based “WCS is opposed to the finalization and implementation of the Proposed Interpretive Rule set forth in the Federal Register,” President and Chief Operating Officer David Carlson wrote in a 15-page letter submitted to the federal regulator on July 13 and posted to the agency website Wednesday. “Use of an ‘interpretive rule’ is neither legally permissible nor appropriate, given; (1) the conflict with the plain language and longstanding interpretations of the Commission’s regulations; (2) the magnitude of the proposed change to the long-standing national policy for near surface disposal of low-level radioactive waste; and (3) the apparent absence of any concurrent review of the environmental, social, or economic consequences of a proposal of this breadth.”
The Nuclear Regulatory Commission in recent weeks received similar messaging from the Texas Commission on Environmental Quality (TCEQ), which regulates the WCS operation; Andrews County, home to the disposal facility; and the Texas Low-Level Radioactive Waste Disposal Compact Commission, which administers a state-owned facility operated by Waste Control Specialists.
If this idea is to be pursued, it should be done via the significantly more extensive rulemaking process, according to TCEQ and other interested parties – including rival low-level waste disposal provider EnergySolutions.
Monday had been the deadline to submit comments on the NRC rule interpretation, but that has been extended to Oct. 21 due to the impact of the COVID-19 pandemic. More than 100 written comments have been provided to date.
At issue is the means of disposal for very low-level radioactive waste (VLLW): the unofficial term for the least radioactive form of Class A waste, which is the least hazardous among the three classes designated by the federal government.
This material includes incinerator ash from research sites; concrete and other contaminated debris from demolition of nuclear facilities, and other refuse. It generally would be sent for disposal at the four U.S. commercial licensed facilities for low-level waste: Waste Control Specialists in Texas; EnergySolutions operations in Utah and South Carolina; and US Ecology at the Department of Energy’s Hanford Site in Washington state.
Under existing regulations for alternate disposal, though, the NRC has over the last couple decades approved several exemptions for land burial of VLLW at solid and hazardous waste landfills on a case-by-case basis.
The rule interpretation first proposed in March would enable Resource Conservation and Recovery Act-regulated landfills to apply for an agency exemption to accept VLLW on an ongoing basis based on volume and radionuclide concentrations, without needing authorization for every shipment. Participating landfills would have to meet certain restrictions, including a cumulative dose limit under 25 millirem from all disposals per year.
The authorized sites would be an option for waste generated by the growing number of nuclear power plant decommissioning projects In public meetings conducted in March and July, NRC officials have emphasized that very low-level waste would remain under regulatory oversight, would not be shipped to any unregulated operations, and could not be reused in any fashion after disposal.
“Disposals under this proposal will be permanent, and the change would create an alternative procedure for the disposal of very low-level waste that aligns with our current regulatory framework for the disposal of low-level radioactive waste while protecting public health and safety and the environment,” Patricia Holahan, director of the NRC’s Division of Decommissioning, Uranium Recovery, and Waste Programs, said during a July 1 call.
That 25 millirem limit would represent a small percentage of the annual dose received by the average U.S. resident: 620 millirem per year, Adam Schwartzman, an NRC risk analyst, noted during the same event.
Nonetheless, participants in that meeting cited a long list of objections to the interpretive rule, including that: the 25-millirem limit is above the level allowed for at least two of the licensed sites; state regulators do not have the expertise to monitor safe disposal of VLLW at landfills; landfill employees do not have the training to manage the material; and certain regions could end up taking other regions’ waste.
Carlson spoke at the July 1 session and expanded on his case against the proposed interpretive rule in writing last week.
The measure would undermine the public health and safety measures that are required of facilities directly licensed to take low-level waste, he argued. The agency has also not evaluated the possible direct and indirect effects of a new disposal pathway, nor demonstrated that waste generators actually need it, Carlson added.
The proposed rule would also be at odds with federal law and regulations, starting with rules on waste disposal, the WCS president wrote: “As explained above, only a facility with a ‘specific license’ to dispose of radioactive waste may receive such waste for disposal under Section 20.2001(b).The Proposed Interpretive Rule creates a new process that circumvents the Commission’s requirement. Such is not an ‘interpretation that is a repeal. Such action is not permissible even by the Commission except via compliance with the Congressionally mandated administrative processes.”
The NRC should withdraw the proposal in favor of full talks on VLLW disposal involving Congress, states, the regional compacts for low-level waste disposal compacts, and other stakeholders, Carlson stated. Those discussions should address the “appropriate administrative rulemaking procedures” for changing the law on the waste type, he added.
Rather than reconsidering existing regulations, a rulemaking would create new rules or revise current regulatory language.
In its July 17 comments to the NRC, the Texas Commission on Environmental Quality also called for cancellation of the rule interpretation and instead a full rulemaking with input from impacted states, the Environmental Protection Agency, and other stakeholders. Its long list of critiques of the current approach include the potential for waste generators to skirt Department of Transportation rules for packaging, signage, and manifests for low-level waste in shipping their material, which the state agency said could end up at unlicensed facilities that do not have adequate gear or trained personnel.
“The NRC’s proposed interpretive rule could create administrative, enforcement, and compliance challenges for both regulators and the regulated community,” the state agency said in a document submitted by TCEQ Executive Director Toby Baker.
Vern Rogers, director of regulatory affairs at EnergySolutions, wrote in the company’s July 10 comments that an interpretive rule would not be “efficient, effective, or legally sound.” Instead, he recommended a rulemaking that would update regulatory language on protection against radiation or general requirements for waste disposal to “make it explicitly clear that an exempted facility (such as a RCRA-permitted facility) could accept VLLW for disposal.”
“EnergySolutions requests that NRC formally initiate rulemaking to adjust the language in 10 CFR 20.2001, instead of using an untested Interpretive Rule designed simply to adjust the guidance in NUREG-1736,” Rogers wrote. “In considering this request, it is important to note that the 10 CFR 20.2002 authorization process allowing disposal of VLLW in a non-licensed facility has two key components; an authorization granted by amendment or letter and the granting of an exemption. The approach raised in the Interpretive Rulemaking would essentially provide authorization by language change in guidance set forth in NUREG-1736 which does not seem to be sound regulatory policy for establishing an authorization.”
In March, the NRC had tentatively expected to complete the rule interpretation proceeding in late summer. There is currently no schedule for completion, agency spokesman Scott Burnell said by email Thursday.
Staff will decide whether to move ahead with the current proposal, taking into account the public input.
“The staff will consider rulemaking as an alternative moving forward,” Burnell wrote. That approach would take several years, involving development and approval by the NRC commissioners of a rulemaking plan, followed by public input, preparing a draft rule that must be considered by the commission and the public, issuing a final rule for more commission consideration, and finally publication.
