The Nuclear Regulatory Commission is asking a federal appeals court to dismiss a petition challenging its sole authority to regulate disposal of very low-level radioactive waste (VLLW) from nuclear power plants in the agency’s agreement states.
The Nuclear Energy Institute missed the 60-day window set under the Atomic Energy Act and Hobbs Act to file a petition for review of the agency’s final determination of authority, according to a Feb. 10 motion from attorneys for the NRC and Department of Justice in the U.S. Court of Appeals for the District of Columbia Circuit. While the Washington, D.C.-based industry trade group cited a September 2019 letter from the regulator in its November petition with the court, that letter simply reaffirms the NRC’s stance since 2012, the motion says.
The “2019 Letter is a routine, informational document by the NRC responding to a request by NEI to alter the position that the NRC had expressed in both 2012 and 2016,” federal attorneys wrote. “In that sense, the 2019 Letter breaks no new ground and imposes no new binding legal requirements; it simply reaffirms the agency’s previously announced position. Such a workaday communication does not constitute a reviewable final order.”
In a 2012 letter to agreement states, and then in Regulatory Issue Summary 2016-11 four years later, the NRC reversed its 1986 interpretation on federal regulations for alternative disposal of low-level waste. In short, the agency said it was wrong 34 years ago when it said it did not have legal standing to review and approve requests for VLLW disposal from nuclear power plants in agreement states.
There are now 39 agreement states to the commission, most recently Vermont. They assume much of the agency’s authority to regulate use of radioactive materials within their borders. However, that does not cover licensing or oversight of nuclear power plants.
In 1986, reactor licensees identified the regulation as largely addressing on-site, underground disposal of low-level waste from their operations. However, that changed over a period of decades to being viewed as the approach for obtaining approval of disposal elsewhere, according to the federal motion.
Very low-level waste is the unofficial 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. It encompasses contaminated soils, debris, and other materials generated by 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.
“In the 2012 Letter, the NRC clarified that the NRC’s or Agreement State’s approval for an unlicensed disposal facility to receive very low-level radioactive waste does not by itself permit the generator to send the waste to that unlicensed facility for disposal,” according to the dismissal motion. “Rather, where the generator obtained its license form the NRC (as is necessarily the case for reactor licensees), the generator must obtain the NRC’s approval to dispose of licensed material at a disposal facility.”
The issue came to a head in 2018 when the regulator determined the operator of the South Texas Project nuclear power plant in Bay City had been shipping very low-level waste to landfills in the state without NRC approval. The licensee, STP Nuclear Operating Co., was not penalized but was informed that the disposal exemption from agreement state Texas was not sufficient.
The Nuclear Energy Institute said this week it could not comment on the NRC motion. The court had not ruled on the matter at deadline Friday for RadWaste Monitor.
