ML20043D112

2-10-20 Respondents' Motion to Dismiss (DC Cir.)(Case No. 19-1240)

ML20043D112
Person / Time
Issue date:	02/10/2020
From:	Andrew Averbach, Clark J, Grant E, Heminger J, Jennifer Scro NRC/OGC, US Dept of Justice, Environment & Natural Resources Div
To:	US Federal Judiciary, Court of Appeals, for the District of Columbia Circuit
References
1827780, 19-1240
Download: ML20043D112 (64)

Text

USCA Case #19-1240 Document #1827780 Filed: 02/10/2020 Page 1 of 29 ORAL ARGUMENT NOT YET SCHEDULED No. 19-1240 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT NUCLEAR ENERGY INSTITUTE Petitioner, v.

UNITED STATES NUCLEAR REGULATORY COMMISSION and UNITED STATES OF AMERICA, Respondents.

On Petition for Review of Action by the Nuclear Regulatory Commission RESPONDENTS MOTION TO DISMISS JEFFREY BOSSERT CLARK ANDREW P. AVERBACH Assistant Attorney General Solicitor ERIC GRANT JENNIFER SCRO Deputy Assistant Attorney General Attorney JUSTIN D. HEMINGER Office of the General Counsel Attorney U.S. Nuclear Regulatory Commission Environment and Natural Resources 11555 Rockville Pike Division Rockville, MD 20852 U.S. Department of Justice andrew.averbach@nrc.gov Post Office Box 7415 (301) 415-1956 Washington, D.C. 20044 justin.heminger@usdoj.gov (202) 514-5442 (Page 1 of Total)

USCA Case #19-1240 Document #1827780 Filed: 02/10/2020 Page 2 of 29 TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................... ii GLOSSARY...............................................................................................................v INTRODUCTION .....................................................................................................1 BACKGROUND .......................................................................................................2 I. Federal and state regulation of nuclear waste disposal. .................................. 2 II. The NRCs interpretation of 10 C.F.R. § 20.2002 and communication of its interpretation to the public. .......................................... 4 A. The NRC interprets § 20.2002 to require approval by the jurisdiction that authorized the use of the radioactive material. .................................4 B. NRC communications to the public regarding its interpretation of

§ 20.2002..................................................................................................5 III. Events following the NRCs announcement of its interpretation of § 20.2002. ....................................................................................................8 ARGUMENT ...........................................................................................................10 I. The NRCs 2019 Letter is not a final order subject to judicial review.............................................................................................................11 II. NEI cannot belatedly challenge the 2016 Regulatory Issue Summary. .......................................................................................................14 CONCLUSION ........................................................................................................22 (Page 2 of Total)

USCA Case #19-1240 Document #1827780 Filed: 02/10/2020 Page 3 of 29 TABLE OF AUTHORITIES Judicial Decisions Alliance for Safe, Efficient & Competitive Truck Transportation v.

Federal Motor Carrier Safety Administration, 755 F.3d 946 (D.C. Cir. 2014) ............................................................................18 American Iron & Steel Institute v. EPA, 886 F.2d 390 (D.C. Cir. 1989) ............................................................................19 Bennett v. Spear, 520 U.S. 154 (1997) ......................................................................................11, 12 Blue Ridge Environmental Defense League v. NRC, 668 F.3d 747 (D.C. Cir. 2012) ............................................................................11 California Communities Against Toxics v. EPA, 934 F.3d 627, 637-38 (D.C. Cir. 2019)...............................................................13 Clayton County, v. FAA, 887 F.3d 1262 (11th Cir. 2018) ....................................................................13, 20 CTIA-Wireless Association v. FCC, 466 F.3d 105 (D.C. Cir. 2006) ............................................................................18 General Motors Corporation v. EPA, 363 F.3d 442 (D.C. Cir. 2004) ............................................................................13 Honicker v. NRC, 590 F.2d 1207 (D.C. Cir. 1978) ..........................................................................11 Independent Equipment Dealers Association v. EPA, 372 F.3d 420 (D.C. Cir. 2004) ..........................................................12, 13, 14, 21 JEM Broadcasting Co. v. FCC, 22 F.3d 320 (D.C. Cir. 1994) ..............................................................................17 ii (Page 3 of Total)

USCA Case #19-1240 Document #1827780 Filed: 02/10/2020 Page 4 of 29 Massachusetts v. ICC, 893 F.2d 1368 (D.C. Cir. 1990) ..........................................................................19 National Association of Reversionary Property Owners v.

Surface Transportation Board, 158 F.3d 135 (D.C. Cir. 1998) ............................................................................18 Natural Resources Defense Council v. NRC, 666 F.2d 595 (D.C. Cir. 1981) ............................................................................16 Ohio v. EPA, 838 F.2d 1325 (D.C. Cir. 1988) ..........................................................................18 United Transportation Union-Illinois Legislative Board v.

Surface Transportation Board, 132 F.3d 71 (D.C. Cir. 1998) ..............................................................................18 U.S. Army Corps of Engineers v. Hawkes Co.,

136 S. Ct. 1807 (2016) ........................................................................................15 Valero Energy Corporation v. EPA, 927 F.3d 532 (D.C. Cir. 2019) ............................................................................15 Weaver v. Federal Motor Carrier Safety Administration, 744 F.3d 142 (D.C. Cir. 2014) ........................................................................... 11 iii (Page 4 of Total)

USCA Case #19-1240 Document #1827780 Filed: 02/10/2020 Page 5 of 29 Statutes 28 U.S.C. § 2342 ........................................................................................................1 42 U.S.C. § 2021 ....................................................................................................3, 5 42 U.S.C. § 2239 ........................................................................................................1 42 U.S.C. §§ 2131-2133 ............................................................................................2 42 U.S.C. § 2021 ........................................................................................................3 42 U.S.C. § 6901 ........................................................................................................4 Regulations 10 C.F.R. § 20.1003 ...................................................................................................2 10 C.F.R. § 20.1301 ...................................................................................................3 10 C.F.R. § 20.2001 ...................................................................................................3 10 C.F.R. § 20.2002 ...................................................................................................3 10 C.F.R. § 20.2003 ...................................................................................................3 10 C.F.R. § 20.2004 ...................................................................................................3 10 C.F.R. Part 20, Subpart K .................................................................................2, 6 10 C.F.R. Pt. 50 ..........................................................................................................1 10 C.F.R. Pt. 52 ..........................................................................................................1 40 C.F.R. Pts. 260-270 ...............................................................................................4 iv (Page 5 of Total)

USCA Case #19-1240 Document #1827780 Filed: 02/10/2020 Page 6 of 29 GLOSSARY AEA Atomic Energy Act APA Administrative Procedure Act EPA Environmental Protection Agency NEI Nuclear Energy Institute NRC Nuclear Regulatory Commission RCRA Resource Conservation and Recovery Act v

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USCA Case #19-1240 Document #1827780 Filed: 02/10/2020 Page 7 of 29 INTRODUCTION On September 16, 2019, the U.S. Nuclear Regulatory Commission (NRC) responded to an unsolicited letter from Petitioner, Nuclear Energy Institute (NEI),

and informed NEI that the NRC would continue to adhere to a previously announced interpretation of 10 C.F.R. § 20.2002. The NRCs interpretation provides the agencys views as to whether the NRC or states are required to approve certain alternate methods of disposal of low-level nuclear waste. NEIs Petition for Review challenges the agencys issuance of this letter.

The NRC and the United States of America (together, Respondents) jointly move to dismiss NEIs Petition for lack of jurisdiction. The September 16, 2019, letter from the NRC to NEI (2019 Letter, attached as Exhibit 1) does not constitute final agency action. Nor can NEI use the 2019 Letter as a vehicle to challenge positions that the agency has held and communicated to the public since 2012.

Under the Atomic Energy Act, 42 U.S.C. § 2239(a), (b), and the Hobbs Act, 28 U.S.C. § 2342(4), the NRC must issue a final order before this Court may exercise jurisdiction over a petition challenging the result of an NRC proceeding.

Once a final order issues, a 60-day window opens for parties to file petitions for review. NEI filed its Petition within 60 days of the NRC issuing the 2019 Letter.

But 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 (Page 7 of Total)

USCA Case #19-1240 Document #1827780 Filed: 02/10/2020 Page 8 of 29 2016. In that sense, the 2019 Letter breaks no new ground and imposes no new binding legal requirements; it simply reaffirms the agencys previously announced position. Such a workaday communication does not constitute a reviewable final order. And NEI cannot use the 2019 Letter to revive a challenge to other NRC actions that could only have been timely brought years ago, if at all.

BACKGROUND I. Federal and state regulation of nuclear waste disposal.

The Atomic Energy Act empowers the NRC to issue licenses for the construction and operation of nuclear power plants. See 42 U.S.C. §§ 2131-2133; 10 C.F.R. Pts. 50, 52. Reactor licensees are likewise responsible for the disposal of low-level wasteitems that have become contaminated with radioactive material or have become radioactive through exposure to neutron radiation. See 10 C.F.R. § 20.1003 (definition of waste); id. Subpart K (Waste Disposal).

States also have a role in the regulation of waste disposal. Under Section 274 of the Atomic Energy Act (AEA), Agreement States may enter into agreements with the NRC whereby the NRC may discontinue its regulatory authority over certain aspects of its jurisdiction, and states may assume this responsibility (though even in Agreement States, the AEA requires the NRC to maintain exclusive regulatory authority over nuclear power plants with respect to radiological hazards). 42 U.S.C. §§ 2021(b), (c)(1). Thus, in Agreement States 2

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USCA Case #19-1240 Document #1827780 Filed: 02/10/2020 Page 9 of 29 that have assumed regulatory responsibility for such subject matters, low-level waste disposal facilities are subject to the licenses and regulations issued under state law. See id. § 2021(b).

State authority over such facilities is generally circumscribed by the NRCs requirements. As a precondition to the discontinuance of its regulatory authority pursuant to Section 274 of the AEA, the NRC must certify that the states program for regulation is adequate to protect the public health and safety and is compatible with the NRCs program. Id. § 2021(d)(2). In addition, the NRC conducts periodic reviews of each Agreement State program to ensure that actions taken by the state are consistent with the AEA. Id. § 2021(j)(1).

NRC-approved methods for disposal of waste includes transfer to an authorized recipient, 10 C.F.R. § 20.2001(a)(1); decay in storage, id.

§ 20.2001(a)(2); or, under certain carefully prescribed limits, release in effluents, id. § 20.1301, release into sanitary sewers, id. § 20.2003, and incineration, id.

§ 20.2004. Should an NRC licensee wish to dispose of waste using a method not specified in Subpart K, NRCs regulations provide an avenue for seeking approval of alternative methodsnamely, 10 C.F.R. § 20.2002. This provision allows NRC licensees to apply to the NRC for approval of an alternative method for disposal of waste not already contemplated by Subpart K.

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USCA Case #19-1240 Document #1827780 Filed: 02/10/2020 Page 10 of 29 II. The NRCs interpretation of 10 C.F.R. § 20.2002 and communication of its interpretation to the public.

NEI seeks to challenge the NRCs interpretation of its regulation allowing approval of alternative methods of waste disposal, 10 C.F.R. § 20.2002, and NEI contends that the NRCs articulation of its interpretation in its 2019 Letter constitutes reviewable agency action. To provide context for the 2019 Letter, this section summarizes: (1) the NRCs interpretation of § 20.2002; and (2) the NRCs communications about its interpretation of § 20.2002.

A. The NRC interprets § 20.2002 to require approval by the jurisdiction that authorized the use of the radioactive material.

At issue in this case is NRCs interpretation of § 20.2002, particularly when NRC reactor licensees request approval to dispose of very low-level radioactive waste at offsite facilities that are not licensed by the NRC, for example, a municipal landfill or a Resource Conservation and Recovery Act (RCRA) disposal facility. 1 As reflected in the communications issued by the NRC and described below, the NRC interprets the approval process for such offsite disposal requests to entail two separate regulatory actionsfirst, the approval for the generator of the 1

RCRA provides a framework for the regulation of solid waste disposal. See 42 U.S.C. § 6901 et seq. In the context of 10 C.F.R § 20.2002 requests, RCRA disposal facilities are typically those regulated under Subtitle C of RCRA meaning that they are authorized by the Environmental Protection Agency (EPA),

or the implementing State agency, to dispose of hazardous waste (but not radioactive material). See 40 C.F.R. Pts. 260-270.

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USCA Case #19-1240 Document #1827780 Filed: 02/10/2020 Page 11 of 29 waste to use this method of disposal under 10 C.F.R. § 20.2002; and, second, approval for the recipient of the waste to receive the material and dispose of it, typically through an exemption from otherwise applicable regulatory requirements (either from an Agreement State or from the NRC).

The NRC has determined that for reactor licensees, the 10 C.F.R. § 20.2002 approval must be by the NRC (and not Agreement States). The NRC interprets

§ 20.2002 to require reactor licensees to obtain approval from the NRC because the AEA confers exclusive authority on the NRC over regulation of nuclear power plant operations. See 42 U.S.C. § 2021(c)(1). If the generator of the waste is a nuclear power plant licensee, it must receive approval from the NRC under 10 C.F.R. § 20.2002 to avail itself of an alternative disposal method. NEI disputes the NRCs interpretation, asserting that the § 20.2002 approval for a reactor licensee can be made by Agreement States, even if the NRC originally licensed the use of the material or facility at issue, and even if the NRCs regulatory authority to regulate such material or facility is exclusively reserved to the NRC under the AEA.

B. NRC communications to the public regarding its interpretation of

§ 20.2002.

The NRC has communicated its interpretation of § 20.2002 in several public documents. As relevant here, the first interpretation was expressed in 1986, at a time when reactor licensees primarily saw § 20.2002 as a means to dispose of low-5 (Page 11 of Total)

USCA Case #19-1240 Document #1827780 Filed: 02/10/2020 Page 12 of 29 level waste by onsite land burial. The NRC issued an Information Notice (Exhibit 2) that advised nuclear power facilities that Agreement States had jurisdiction to approve disposal of very low-level radioactive waste by NRC licensees under the equivalent of what today is § 20.2002.

Over time, licensees increasingly began to use § 20.2002 as a means of securing approval for offsite (rather than onsite) disposal, prompting the NRC to reassess its understanding of the provision in light of jurisdictional issues that this practice had created (and, specifically, the possibility that Agreement States were authorizing disposal of wastes at out-of-state unlicensed facilities). The NRC addressed these concerns in a March 2012 letter to Agreement States (the 2012 Letter, attached as Exhibit 3). In the 2012 Letter, the NRC clarified that the NRCs or Agreement States 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. See id. at 1-3. Rather, where the generator obtained its license from the NRC (as is necessarily the case for reactor licensees), the generator must obtain the NRCs approval to dispose of licensed material at a disposal facility in a manner not otherwise authorized by 10 C.F.R.

Subpart K. Id. 2 2

The 2012 Letter provided guidance reflecting the allocation of authority in several different jurisdictional scenarios. Of particular note here, it examined a scenario 6

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USCA Case #19-1240 Document #1827780 Filed: 02/10/2020 Page 13 of 29 The 2012 Letter communicated the NRCs interpretation of the relevant regulations, but it did not purport to create any legally binding obligations not otherwise contained in 10 C.F.R. § 20.2002. Nor did the agency seek comments from the public before issuing it. The 2012 Letter also advised recipients that specific guidance regarding the review process for the evaluation of requests under 20.2002 is under development. This information will be shared with the Agreement States once it has been finalized. Id. at 3.

In November 2016, the NRC issued Regulatory Issue Summary 2016-11, Requests to Dispose of Very Low-Level Radioactive Waste Pursuant to 10 C.F.R.

§ 20.2002 (Exhibit 4), in which it reiterated the interpretation of § 20.2002 announced in the 2012 Letter.3 The agency did not provide an opportunity for public comment, explaining that the summary was informational and pertains to

[an NRC] staff position that does not represent a departure from current regulatory requirements and practice. Exhibit 4 at 3.

where [a]n NRC licensee requests authorization under 20.2002 to dispose of material at an unlicensed facility in an Agreement State. It explained that the NRC would need to approve the disposal of the material under 20.2002 and that

[t]he unlicensed facility would then need to obtain a license or an exemption from the Agreement States regulations prior to accepting the material for disposal.

Exhibit 3 at 2 (scenario 4).

3 Regulatory Issue Summaries are one means that the NRC uses to communicate with stakeholders concerning issues affecting nuclear licensees and the nuclear industry. See https://www.nrc.gov/reading-rm/doc-collections/gen-comm/reg-issues/ (last visited Feb. 10, 2020).

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USCA Case #19-1240 Document #1827780 Filed: 02/10/2020 Page 14 of 29 Consistent with the 2012 Letter, the 2016 Regulatory Issue Summary provided the agencys view that a licensees request to dispose of licensed material under § 20.2002, or the equivalent Agreement State regulations, must be submitted to the regulatory authority that issued the license for use of the radioactive material. Id. at 2. The 2016 Regulatory Issue Summary confirmed that for licensees under 10 C.F.R. Part 50 or 10 C.F.R. Part 52 (that is, operators of nuclear power plants who are subject to exclusive NRC authority), the licensees request should be made to the NRC. Id.

III. Events following the NRCs announcement of its interpretation of

§ 20.2002.

NEIs Petition for Review references recent events that, it believes, provide a basis for judicial review of the agencys interpretation of § 20.2002 at this time.

As NEI recounts, during a 2018 inspection, an NRC inspector discovered that the licensee operating South Texas Project, a nuclear reactor in Texas, had been disposing of very-low level radioactive waste at landfills in Texas without receiving NRC approval to use this alternative method of disposal under 10 C.F.R.

§ 20.2002. In an October 2018 letter (Exhibit 5), the NRC acknowledged that the State of Texas (an Agreement State) had issued an exemption permitting disposal at unlicensed storage facilities, but the NRC informed the licensee that, because it was licensed by the NRC, it needed to obtain NRC authorization under 10 C.F.R.

§ 20.2002 before disposing of licensed material at unlicensed sites. The agency 8

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USCA Case #19-1240 Document #1827780 Filed: 02/10/2020 Page 15 of 29 also explained that, as an exercise of its enforcement discretion, it would excuse the licensees past non-compliance with that provision and that [g]oing forward, it would continue to exercise enforcement discretion for [the licensees] existing process for disposal of low-level waste while the NRC evaluates regulatory options to address this issue. Exhibit 5 at 2.

In February 2019, NEI, an industry group that represents a large number of NRC licensees, sent a letter to NRC (Exhibit 6) requesting that the NRC rescind the 2016 Regulatory Issue Summary. NEI raised a series of legal arguments related to the position that NRC had adopted and requested that the agency, in accordance with 10 [C.F.R.] § 2.804(f), treat [its] letter as a post-promulgation comment on the agencys new interpretation in [the 2016 Regulatory Issue Summary], and publish a statement in the Federal Register rescinding [the Summary] and reinstating what it understood to be the position that NRC had adopted in 1986. Exhibit 6 at 10. NEIs letter also prompted other stakeholders to submit letters (Exhibits 7, 8) to the NRC about § 20.2002. On September 6, 2019, the NRC held a public meeting with interested stakeholders to discuss these issues.

See Exhibit 9. Shortly thereafter, the NRC issued the 2019 Letter responding to NEIs letter.

In the 2019 Letter, the Director of the NRCs Office of Nuclear Material Safety and Safeguards rejected NEIs request that the NRC rescind the 2016 9

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USCA Case #19-1240 Document #1827780 Filed: 02/10/2020 Page 16 of 29 Regulatory Issue Summary. The 2019 Letter noted that the Summary correctly stated that any licensees request for approval to dispose of licensed material under

[10 C.F.R. §] 20.2002, or the equivalent Agreement State regulations, must be submitted to the regulatory authority that issued the license for use of the radioactive material. Exhibit 1 at 1. The NRC also noted that for reactor licensees that have sought approval from Agreement States rather than the NRC, the NRC staff will consider enforcement discretion on a case-by-case basis, as appropriate. Id.

ARGUMENT This Petition for Review is an attempt to obtain review of the NRCs interpretation of its regulation by challenging the 2019 Letter. To secure this Courts review, NEI advances two alternative theories for treating the 2019 Letter as a final order. Neither theory holds true.

First, NEI contends that the NRCs 2019 Letter substantively alter[ed] the 2016 Regulatory Issue Summary so that the 2019 Letter is a new NRC position subject to challenge. Petition for Review at 1, Document No. 1816696 (Nov. 15, 2019). Second, NEI asserts in the alternative that the 2019 Letter constitutes renewed adherence to the 2016 Regulatory Issue Summary, presumably so that NEI can now challenge the NRC position set forth in the Summary. Id.; see also Petitioners Non-Binding Statement of Issues at 1, Document No. 1825011 (Jan.

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USCA Case #19-1240 Document #1827780 Filed: 02/10/2020 Page 17 of 29 21, 2020). We address these two theories, and the reasons that neither supports jurisdiction under the Hobbs Act, in the two Sections below.

I. The NRCs 2019 Letter is not a final order subject to judicial review.

To the extent that NEI challenges the 2019 Letter as a new agency position, it cannot be reviewed under the Hobbs Act because it is not a final order.

Finality under the Hobbs Act is narrowly construed. Blue Ridge Environmental Defense League v. NRC, 668 F.3d 747, 753 (D.C. Cir. 2012)

(quotation marks and citation omitted). A Hobbs Act final order is one that imposes an obligation, denies a right, or fixes some legal relationship, usually at the consummation of an administrative process. Honicker v. NRC, 590 F.2d 1207, 1209 (D.C. Cir. 1978). In determining the finality of an agencys actions under the Hobbs Act, courts have looked to the familiar framework established by the Supreme Court in Bennett v. Spear, 520 U.S. 154, 177-78 (1997).4 For an agency order to be final under Bennett, the action (1) must mark the consummation of the agencys decision-making processit must not be of a merely tentative or interlocutory nature; and (2) must be one by which rights or 4

The two-prong test in Bennett v. Spear was formulated to determine whether an agency decision constitutes final agency action under the Administrative Procedure Act (APA). Although the Hobbs Act and the APA use different terminologyfinal order versus final agency actionthis Court has stated that although the terms were not equivalent in all respects, they were equivalent for the purposes of finality. Weaver v. Federal Motor Carrier Safety Administration, 744 F.3d 142, 146 (D.C. Cir. 2014).

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USCA Case #19-1240 Document #1827780 Filed: 02/10/2020 Page 18 of 29 obligations have been determined, or from which legal consequences will flow.

520 U.S. at 177-78 (internal citations and quotation marks omitted).

Courts have long-recognized that routine, informational letters from agencies reiterating agency policies and legal interpretations are not final agency actions subject to judicial review. For example, in Independent Equipment Dealers Association v. EPA, this Court held that it lacked jurisdiction to review an EPA letter responding to an industry trade associations letter, in which the agency stated that it did not concur in the trade associations proposed interpretation of certain emissions regulations. 372 F.3d 420, 421 (D.C. Cir. 2004). This Court held that the EPA letter failed to satisfy the second prong of Bennett and therefore was not a final agency action. Id. at 425-29. This Court reasoned that the EPA letter merely restated in an abstract settingfor the umpteenth timeEPAs longstanding interpretation of the [relevant emissions] regulations. Id. at 427.

Thus, the EPA letter was the type of workaday advice letter that agencies prepare countless times per year in dealing with the regulated community. Id. (internal quotation marks omitted)

The reasoning in Independent Equipment Dealers applies with full force to the 2019 Letter and precludes a finding of finality under prong two of Bennett.

Barely exceeding one page, the 2019 Letter merely restates what the NRC already made clear in both the 2012 Letter and the 2016 Regulatory Issue Summarythat 12 (Page 18 of Total)

USCA Case #19-1240 Document #1827780 Filed: 02/10/2020 Page 19 of 29 any licensees request for approval to dispose of licensed material under [10 C.F.R. § 20.2002], or the equivalent Agreement State regulations, must be submitted to the regulatory authority that issued the license for use of the radioactive material. Exhibit 1 at 1. In the 2019 Letter, the NRC reiterated that the interpretation in the 2016 Regulatory Issue Summary was correct, quoted the Summarys language and rationale nearly verbatim, and declined NEIs invitation to rescind it. Thus, like the EPA letter in Independent Equipment Dealers, the NRCs 2019 Letter covered no new ground; rather, it left the world just as it found it, and thus cannot be fairly described as implementing, interpreting, or prescribing law or policy. 372 F.3d at 428; see also Clayton County, v. FAA, 887 F.3d 1262, 1267-68 (11th Cir. 2018) (FAA letter that merely restate[d] the agencys regulatory interpretation that had been established two years earlier in a policy clarification was not reviewable agency action); General Motors Corporation v. EPA, 363 F.3d 442, 449 (D.C. Cir. 2004) (EPA letters did not constitute reviewable agency action where, [i]n response to industry inquiries, the agency repeated its regulatory interpretation from a prior policy document issued years earlier). Because the 2019 Letter imposed no new legal consequences, it is not a final order under the Hobbs Act. See California Communities Against Toxics v. EPA, 934 F.3d 627, 637-38 (D.C. Cir. 2019).

Absent a final order, this Court lacks jurisdiction.

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USCA Case #19-1240 Document #1827780 Filed: 02/10/2020 Page 20 of 29 This result is not only legally correct, but it reflects sensible agency practice.

The NRC wrote the 2019 Letter in response to an unsolicited, informal inquiry from NEIan organization that represents companies that the NRC regulates.

Seeking to be responsive to NEIs request, the NRC summarized its preexisting views about the regulatory requirements in § 20.2002. Subjecting agencies such as the NRC to judicial review when they merely restate a regulatory interpretation in response to inquiries from the regulated community would chill future interactions.

As this Court observed in Independent Equipment Dealers, it is silly to permit parties to challenge an established regulatory interpretation each time it is repeated. 372 F.3d at 428. Such a regime would quickly muzzle any informal communications between agencies and their regulated communities communications that are vital to the smooth operation of both government and business. Id. This Court should not allow NEI to convert the NRCs routine, informal communication into a final agency action.

II. NEI cannot belatedly challenge the 2016 Regulatory Issue Summary.

In addition to challenging the 2019 Letter directly, NEI also uses it as a vehicle to attempt to launch a procedural and substantive challenge to the 2016 Regulatory Issue Summary. But its arguments are little more than an attempt to 14 (Page 20 of Total)

USCA Case #19-1240 Document #1827780 Filed: 02/10/2020 Page 21 of 29 evade the Hobbs Acts jurisdictional 60-day window, and this Court has repeatedly rejected similar attempts by petitioners.5 NEIs primary procedural challenge is that the NRC violated 10 C.F.R.

§ 2.804(e)(2) in issuing the 2016 Regulatory Issue Summary without notice and comment and that its February 2019 letter to the NRC should be treated as a post-promulgation comment to the Summary. Presumably, NEIs argument is that the NRCs actions in responding to this comment in its 2019 Letter restarted the Hobbs Acts 60-day jurisdictional clock in relation to the Summary. Exhibit 6 at 8-9, 10; Petitioners Non-Binding Statement of Issues at 3, Document No. 1825011 (Jan.

21, 2020). 6 But this theory, as well as NEIs other procedural challenges (including its challenge based on the NRCs backfit rule), is foreclosed by this 5

NEIs argument also appears to be founded on the incorrect assumption that the 2016 Regulatory Issue Summary itself is reviewable agency action. Granted, the position articulated in the Summarythat NRC licensees must apply to the NRC for approval of alternative disposal method under 10 C.F.R. § 20.2002satisfies the first prong of Bennett in that this position is not tentative or interlocutory in nature. U.S. Army Corps of Engineers v. Hawkes Co., 136 S. Ct. 1807, 1813 (2016). But the Summary fails to satisfy the second prong of Bennett because it has no independent legal effect. See Valero Energy Corporation v. EPA, 927 F.3d 532, 536 (D.C. Cir. 2019) (Absent some identifiable effect on the regulated community, an agency works no legal effect merely by expressing its view of the law. (quotation marks and citation omitted)).

6 NEI also asserts that the NRCs issuance of the 2016 Regulatory Information Summary diverges from the NRCs backfit rule, as set forth at 10 C.F.R.

§ 50.109 (providing guidelines for the agencys application of new requirements to previously licensed activities). See Exhibit 6 at 9; Petitioners Non-Binding Statement of Issues, Document No. 1825011 (Jan. 21, 2020), at 3.

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USCA Case #19-1240 Document #1827780 Filed: 02/10/2020 Page 22 of 29 Courts decision in Natural Resources Defense Council v. NRC, 666 F.2d 595, 602 (D.C. Cir. 1981) (NRDC).

In NRDC, the petitioner asserted that the NRC had amended its regulations without notice and comment. Id. at 600-01. Instead of directly challenging the amendments, however, the petitioner appealed the NRCs denial of its petition for rulemaking calling for the NRC to repeal the amendments on the grounds that the NRC unlawfully promulgated them without notice and comment. Id. This Court dismissed the petitioners challenge for lack of jurisdiction. Id. at 603. In so holding, this Court reasoned that the finality purposes underlying the Hobbs Acts 60-day window would be frustrated if untimely procedural challenges could be revived by simply filing a petition for rulemaking requesting rescission of the regulations and then seeking direct review of the petition's denial. Id. at 602.

Indeed, this Court noted that the petitioners position would permit procedural challenges to be brought twenty, thirty, or even forty years after the regulations were promulgated. No greater disregard for the principle of finality could be imagined. Id.

So too here. Like the petitioner in NRDC, NEI seeks to revive challenges to the manner in which the 2016 Regulatory Issue Summary was issued more than three years after the fact, by asserting those challenges within a challenge to the 2019 Letter. But the 60-day window for seeking judicial review would mean little 16 (Page 22 of Total)

USCA Case #19-1240 Document #1827780 Filed: 02/10/2020 Page 23 of 29 if, as the theory underlying NEIs Petition suggests, a party could restart the limitations period simply by sending a letter challenging the manner by which a decision was reached and characterizing the agencys response as a new form of final agency action. Moreover, the 2016 Regulatory Issue Summary explicitly stated that the NRC was not providing an opportunity for public comment because it [was] informational and pertain[ed] to a staff position that d[id] not represent a departure from current regulatory requirements and practice. Exhibit 4 at 3. It further stated that no backfit analysis was required. Id. If NEI now contends that the NRC erred in issuing the 2016 Regulatory Issue Summary without notice and comment or without a backfit analysis, it had ample opportunity to timely raise such challenges to its adoption (as well as any others) when the Summary was issued. NEI cannot circumvent the jurisdictional 60-day window for review under the Hobbs Act by using the 2019 Letter to bring a back door procedural challenge to the 2016 Regulatory Issue Summary more than three years too late.

See JEM Broadcasting Co. v. FCC, 22 F.3d 320, 325 (D.C. Cir. 1994) (procedural challenges to agency regulations will not be entertained outside the 60-day period provided in the Hobbs Act).

NEIs attempt to use the 2019 Letter as a basis for substantive challenges to the 2016 Regulatory Issue Summary is likewise time-barred by the Hobbs Act. To be sure, there are circumstances under the reopening doctrine when an agencys 17 (Page 23 of Total)

USCA Case #19-1240 Document #1827780 Filed: 02/10/2020 Page 24 of 29 renewed promulgation of a position can create[] the opportunity for renewed comment and objection. Ohio v. EPA, 838 F.2d 1325, 1328 (D.C. Cir. 1988);

United Transportation Union-Illinois Legislative Board. v. Surface Transportation Board, 132 F.3d 71, 75-76 (D.C. Cir. 1998). But the doctrine only applies . . .

where the entire context demonstrates that the agency has undertaken a serious, substantive reconsideration of the existing rule. Alliance for Safe, Efficient &

Competitive Truck Transportation v. Federal Motor Carrier Safety Administration, 755 F.3d 946, 954 (D.C. Cir. 2014) (internal quotation marks and citation omitted);

see also CTIA-Wireless Association v. FCC, 466 F.3d 105, 110 (D.C. Cir. 2006)

(concluding that an agency does not reopen a rulemaking or policy determination merely [by] respond[ing] to an unsolicited comment by reaffirming its prior position (internal quotation marks and citation omitted)); National Association of Reversionary Property Owners v. Surface Transportation Board, 158 F.3d 135, 145 (D.C. Cir. 1998) (The mere act of repeating old reasons for an old policy in response to unsolicited comments is not the equivalent of reconsidering, and therefore reopening, the old issue.).

Those circumstances are not present here. The NRC did not initiate a dialogue with stakeholders on the question of which regulatory authoritythe NRC or Agreement Stateshould review § 20.2002 requests from reactors; it simply responded to the points set forth in NEIs letter (and considered the views 18 (Page 24 of Total)

USCA Case #19-1240 Document #1827780 Filed: 02/10/2020 Page 25 of 29 of others in the industry, after the issue had been raised by NEI). The NRC did not republish the 2016 Regulatory Issue Summary, did not propose any changes to 10 C.F.R. § 20.2002, and did not make a sustained attempt to reiterate the reasons for issuing it. American Iron & Steel Institute v. EPA, 886 F.2d 390, 398 (D.C.

Cir. 1989) (reopening doctrine did not apply where the agency reaffirmed its previous position and at most briefly reiterated its prior reasoning (internal quotation marks omitted)); see also Massachusetts v. ICC, 893 F.2d 1368, 1372 (D.C. Cir. 1990) (reopening doctrine not applicable where [t]he agency did not hold out the unchanged calculation of value as a proposed regulation; it did not explain the unchanged procedure; it did not solicit comment on the substance of the value calculation; and it responded to Massachusetts comments only to deny them as inconsistent with long established practice and policy and summarily to find them antithetical to established goals).

Undoubtedly, NEI disagrees with the position articulated in the 2016 Regulatory Issue Summary. This Court has made clear, however, that [t]he reopening rule of Ohio v. EPA is not a license for bootstrap procedures by which petitioners can comment on matters other than those actually at issue, goad an agency into a reply, and then sue on the grounds that the agency had re-opened the issue. American Iron & Steel Institute, 886 F.2d at 398. Moreover, to permit NEI to manufacture a challenge to the 2016 Regulatory Issue Summary, over three 19 (Page 25 of Total)

USCA Case #19-1240 Document #1827780 Filed: 02/10/2020 Page 26 of 29 years after its issuance, based on the NRCs plain restatement of its position in response to a wholly unprompted call for the NRC to reverse course, would not only chill communications between agencies and the regulated communities (including the type the NRC engaged in here) but would undermine the finality principles embodied in the Hobbs Acts strict time limitations. See Clayton County, 887 F.3d at 1269 (If a court intervened now, it might mean that regulated parties could bring lawsuits whenever an agency advises a party of its already-existing obligations. Such a result would discourage agencies from offering advisory guidance which in turn would harm regulated parties who appreciate and rely on such guidance.).

Finally, while NEI concedes that the 2016 Regulatory Issue Summary had no legal consequence at the time it was issued, it seems to suggest that the Summary ripened into reviewable agency action when the NRC allegedly started using the [Summary] as justification for enforcement action. Petition at 3 n.1. In making this argument, NEI likely is referring to the NRCs October 2018 Letter to the South Texas Project licensee. However, NRC issued this letter in the context of a response to the licensees written inquiry. And, as stated in its October 2018 letter, the NRC did not take enforcement action against the South Texas Project licensee. See Exhibit 5 at 2. Moreover, any potential enforcement action that the agency considered was not based on that licensees noncompliance with the 2016 20 (Page 26 of Total)

USCA Case #19-1240 Document #1827780 Filed: 02/10/2020 Page 27 of 29 Regulatory Issue Summary, but, rather, on its noncompliance with 10 C.F.R.

§ 20.2002 itself. Exhibit 5 at 2 (reasoning that enforcement discretion was appropriate given the low safety significance of the South Texas Project licensees non-compliance with 10 CFR 20.2002). And the NRC informed the licensee that it was continuing to evaluate regulatory options to address [the] issue. Id.

Notwithstanding NEIs characterizations, the NRC has not taken enforcement action, has not suggested that enforcement action is imminent, and has not claimed that the 2016 Regulatory Issue Summary itself has the force of law.

And even accepting NEIs apparent argument that the NRC relied on the 2016 Regulatory Issue Summary as the basis for the potential violation instead of the regulation itself, the NRCs actions would still not constitute reviewable final agency action. As this Court stated in Independent Equipment Dealers, the threat of having to defend itself in an administrative hearing should the agency actually decide to pursue enforcement, [is] insufficient to bring an agencys conduct under

[this Courts] purview. 372 F.3d at 428 (internal quotation marks and citation omitted). In the event that enforcement action were taken against a licensee based on a failure to comply with § 20.2002, the NRC would need to assert its interpretation of the regulation in that proceeding, and the licensee would have the opportunity to challenge that interpretation in a hearing before the agency (and to seek judicial review if it disagreed with the NRCs final decision). But the 21 (Page 27 of Total)

USCA Case #19-1240 Document #1827780 Filed: 02/10/2020 Page 28 of 29 agencys re-articulation of its position, long after any window to challenge has closed, is not subject to judicial review at this time.

CONCLUSION For the foregoing reasons, Respondents respectfully request that this Court dismiss the Petition for Review for lack of jurisdiction.

Respectfully submitted,

/s/ Justin D. Heminger /s/ Andrew P. Averbach JEFFREY BOSSERT CLARK ANDREW P. AVERBACH Assistant Attorney General Solicitor ERIC GRANT Office of the General Counsel Deputy Assistant Attorney General U.S. Nuclear Regulatory Commission JUSTIN D. HEMINGER (301) 415-1956 Attorney Environment and Natural Resources Division U.S. Department of Justice (202) 514-5442 DJ Number 90-13-3-15901 Dated: February 10, 2020 22 (Page 28 of Total)

USCA Case #19-1240 Document #1827780 Filed: 02/10/2020 Page 29 of 29 CERTIFICATE OF COMPLIANCE WITH FEDERAL RULE OF APPELLATE PROCEDURE 27(D)

I certify that this filing complies with the requirements of Fed. R. App. P.

27(d)(1)(E) because it has been prepared in 14-point Times New Roman, a proportionally spaced font.

I further certify that this filing complies with the type-volume limitation of Fed. R. App. P. 27(d)(2)(A) because it contains 5,191 words, excluding the parts of the filing exempted under Fed. R. App. P. 32(f), according to the count of Microsoft Word.

/s/ Andrew P. Averbach ANDREW P. AVERBACH Counsel for Respondent United States Nuclear Regulatory Commission (Page 29 of Total)

USCA Case #19-1240 Document #1827780 Filed: 02/10/2020 Page 1 of 1 CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES (A) Parties and Amici The petitioner is the Nuclear Energy Institute. The respondents are the United States and the United States Nuclear Regulatory Commission.

(B) Ruling Under Review The ruling under review is a letter sent by the Nuclear Regulatory Commission to the Nuclear Energy Institute on September 16, 2019. It is attached to this motion as Exhibit 1.

(C) Related Cases There are no related cases.

(Page 30 of Total)

USCA Case #19-1240 Document #1827780 Filed: 02/10/2020 Page 1 of 3 September 16, 2019 Ms. Ellen C. Ginsberg Vice President, General Counsel

& Secretary Nuclear Energy Institute 1201 F Street, NW, Suite 1100 Washington, DC 20004

SUBJECT:

RESPONSE TO YOUR FEBRUARY 28, 2019, LETTER, COMMENTS ON REGULATORY ISSUE

SUMMARY

2016-11, REQUESTS TO DISPOSE OF VERY LOW-LEVEL RADIOACTIVE WASTE PURSUANT TO 10 CFR 20.2002

Dear Ms. Ginsberg:

I am responding to your February 28, 2019, letter to Ho Nieh and Scott Moore, Comments on Regulatory Issue Summary 2016-11, Requests to Dispose of Very Low-Level Radioactive Waste Pursuant to 10 CFR 20.2002 (Agencywide Documents Access and Management System [ADAMS] Accession No. ML19086A320), where you requested that the U.S. Nuclear Regulatory Commission (NRC) rescind Regulatory Issue Summary (RIS) 2016-11.

We have reviewed the information you provided and the history of this issue and determined that RIS 2016-11 correctly stated that any licensees request for approval to dispose of licensed material under Title 10 of the Code of Regulations (10 CFR) Section 20.2002, or the equivalent Agreement State regulations, must be submitted to the regulatory authority that issued the license for use of the radioactive material. In the case of 10 CFR Part 50 or 52 licensees, this requirement is based on the NRCs jurisdiction over the operation of nuclear power plants, which cannot be delegated to an Agreement State.

For Very Low-Level Waste (VLLW) at unlicensed facilities such as Resource Conservation Recovery Act disposal facilities that have received appropriate exemptions from VLLW disposal requirements, the NRC staff intends to avoid an unnecessarily complicated approval process.

Therefore, as indicated during a public meeting on September 6, 2019, the staff plans to provide updated guidance describing a streamlined approach for reviewing 10 CFR 20.2002 requests, 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 20.2002 request. The NRC staff envisions an approach that appropriately considers the Agreement States review and approval in the NRC staffs review. The staff will solicit stakeholder comments before issuing final guidance on this issue.

For any 10 CFR Part 50 or 52 licensees that have used Agreement State approvals in the past in lieu of an NRC 10 CFR 20.2002 approval, the NRC staff will consider enforcement discretion on a case-by-case basis, as appropriate.

(Page 31 of Total)

USCA Case #19-1240 Document #1827780 Filed: 02/10/2020 Page 2 of 3 E.

Ginsberg 2 In addition to the streamlined approach to 10 CFR 20.2002 reviews for VLLW discussed above, the NRC staff plans to review the scope of acceptable disposal of VLLW under 10 CFR 20.2001. The staff will also seek public and stakeholder comments as part of this review before finalizing guidance.

In accordance with 10 CFR 2.390 of the NRCs Agency Rules of Practice and Procedure, a copy of this letter will be available electronically for public inspection in the NRC Public Document Room or from the Publicly Available Records component of NRCs ADAMS. ADAMS is accessible from the NRC Web site at https://www.nrc.gov/reading-rm/adams.html Thank you for submitting your comments. If you have any questions, please contact Stephen Dembek at stephen.dembek@nrc.gov or 301-415-2342.

Sincerely,

//RA//

John W. Lubinski, Director Office of Nuclear Material Safety and Safeguards (Page 32 of Total)

ML19224A774 *via email OFFICE DUWP MSST DUWP OE NRR SKoenick* PMichalak* BPham* JPeralta* RPascerelli DATE 9/12/19 9/12/19 9/11/19 9/11/19 9/11/19*

OFFICE OGC TECH ED NMSS NAME BHarris* CGoode JLubinski DATE 9/11/19 9/12/19 9/16/19 USCA Case #19-1240 Document #1827780 Filed: 02/10/2020 Page 1 of 3 SSINS No.: 6835 IN 86-90 UNITED STATES NUCLEAR REGULATORY COMMISSION OFFICE OF INSPECTION AND ENFORCEMENT WASHINGTON, D.C. 20555 November 3, 1986 IE INFORMATION NOTICE NO. 86-90: REQUESTS TO DISPOSE OF VERY LOW-LEVEL RADIOACTIVE WASTE PURSUANT TO 10 CFR 20.302 Addressees:

All nuclear power reactor facilities holding an operating license or a construction permit and research and test reactors.

Purpose:

This notice is to inform nuclear reactor licensees of the authority ofmight Agreement States in reviewing and approving disposals of waste that in the past have been reviewed by the NRC pursuant to 10 CFR 20.302(a). In those cases where the reactor facility was in an Agreement State, the NRC did not have a legal basis for performing the reviews and granting approvals.

It is suggested that recipients review the information provided for applicability to their facilities. However, information contained in this notice does not constitute-NRC requirements; therefore, no specific action or written response is required.

Discussion:

In February 1983, the NRC issued IE Information Notice 83-05, "Obtaining Approval for Disposing of Very Low-Level Radioactive Waste - 10 CFR Section 20.302.' The purpose of this information notice was to call attention to the little-used obtaining section of NRC regulations, 10 CFR 20.302(a), that provides a method for in a manner approval of proposed procedures for disposing of radioactive material the not otherwise authorized in the regulations. The notice identified NRR as NRC Office to receive and process utility applications. Neither the Notice nor 10 CFR 20.302(a) addresses NRC versus Agreement State jurisdiction. As afor matter of practice, reactor licensees who requested such approvals from the NRC must radioactive waste disposal in Agreement States were advised that they also obtain the approval of the Agreement State. However, in a recent legal opinion regarding regulatory jurisdiction, the NRC's Executive Legal Director made within it clear that in Agreement States NRC approval is not necessary for disposal or outside of the exclusion area of low-level radioactive waste from a reactorFor facility. Such approval is within the jurisdiction of the Agreement State.

disposal of very low-level radioactive waste in States that are not Agreement States, only NRC approval is required.

8610290045 (Page 34 of Total)

USCA Case #19-1240 Document #1827780 Filed: 02/10/2020 Page 2 of 3 IN 86-90 November 3, 1986 Page 2 of 2 In Agreement States, regulation of the handling and storage (including waste treatment) at the reactor site of low-level waste resulting from the reactor operation is reserved to the NRC pursuant to 10 CFR 150.15(a)(1). For this purpose, the reactor site includes the exclusion area since it represents specifically the area of greatest and most immediate public health and safety concern in the operation of the reactor.

Therefore, applications for disposal by reactors in Agreement States should be submitted to the Agreement State. Applications for disposal pursuant to 10 CFR 20.302 by reactors in Non-Agreement States should be submitted to the NRC Office of Nuclear Reactor Regulation.

This may change at some point in the future since NRC staff is presently drafting a change to 10 CFR 150.15 that would clearly establish the NRC as having sole authority over all low-level radioactive waste activities, including disposal, within the exclusion area at NRC-licensed reactors and at certain fuel cycle facilities.

No specific action is required by this information notice. If you have any questions about this matter, please contact one of the individuals listed below or this office.

danKX@ rector ivisio of Emergency Preparedness and Engineering Response Office of Inspection and Enforcement Technical Contacts: Faith N. Brenneman, NRR (301) 492-7856 John D. Buchanan, IE (301) 492-9657 Legal

Contact:

Robert L. Fonner, ELD (301) 492-8692

Attachment:

List of Recently Issued IE Information Notices (Page 35 of Total)

USCA Case #19-1240 Document #1827780 Filed: 02/10/2020 Page 3 of 3 Attachment 1 IN 86-90 November 3, 1986 LIST OF RECENTLY ISSUED IE INFORMATION NOTICES Information Date of Notice No. Subject Issue Issued to 86-89 Uncontrolled Rod Withdrawal 10/16/86 All BWR facilities Because Of A Single Failure holding an OL or CP 86-05 Main Steam Safety Valve Test. 10/16/86 All power reactor Sup. 1 Failures And Ring Setting facilities holding Adjustments an OL or CP t86-25 Traceability And Material 10/15/86 All power reactor Sup. 1 Control of Material And facilities holding Equipment, Particularly an OL or CP Fasteners 86-88 Compensatory Measures For 10/15/86 All power reactor Prolonged Periods Of Security facilities holding System Failures an OL or CP; fuel fabrication and processing facilities 86-87 Loss Of Offsite Power Upon An 10/10/86 All power reactor AutomatIc-Riis Transfer - facilities holding an OL or CP 86-86 Clarification Of Requirements 10/10/86 All registered users For Fabrication And Export Of of NRC certified Certain Previously Approved packages Type 8 Packages 86-85 Enforcement Actions Against 10/3/86 All NRC medical Medical Licensees For licensees Willfull Failure To Report Misadministrations 86-84 Rupture Of A Nominal 9/30/86 All NRC medical 40-Millicurie Iodine-125 institution licensees Brachytherapy Seed Causing Significant Spread Of Radioactive Contamination 86-83 Underground Pathways Into 9/19/86 All power reactor Protected Areas, Vital Areas, facilities holding Material Access Areas, And an OL or CP; fuel Controlled Access Areas fabrication and processing facilities OL = Operating License CP = Construction Permit (Page 36 of Total)

USCA Case #19-1240 Document #1827780 Filed: 02/10/2020 Page 1 of 3 (FSME-12-025, March, Other, 10 CFR 20.2002)

March 13, 2012 ALL AGREEMENT STATES CLARIFICATION OF THE AUTHORIZATION FOR ALTERNATE DISPOSAL OF MATERIAL ISSUED UNDER 10 CFR 20.2002 AND EXEMPTION PROVISIONS IN 10 CFR (FSME-12-025)

Purpose:

To clarify the use of 10 CFR 20.2002 and similar Agreement State processes for the disposal of radioactive materials in RCRA disposal facilities or other unlicensed facilities (unlicensed facilities), when the unlicensed facility is located in another State.

Background:

The Nuclear Regulatory Commission (NRC) and the Agreement States can authorize waste generators to dispose of radioactive materials in facilities other than 10 CFR Part 61 (or Agreement State equivalent) disposal facilities in accordance with 10 CFR Part 20 Subpart K (or equivalent Agreement State regulations). If the Agreement State has not adopted regulations equivalent to 10 CFR 20.2002, the State may accomplish the same regulatory authorization through application of its specific exemption authority, which would grant the disposal request.

When a licensee obtains 20.2002 approval to send material to a disposal facility that is not licensed by the NRC or an Agreement State, the disposal facility operator must obtain either an NRC or Agreement State license or an exemption from the NRC or Agreement State licensing requirements. The NRC, for example, can grant exemptions from its licensing requirements under 10 CFR 30.11, 40.14, or 70.17.

In some cases, it is necessary for the NRC and an Agreement State or multiple Agreement States to become involved in the disposal process. For example, if a licensee in Agreement State A wants to send material for disposal at an unlicensed facility in Agreement State B, then the licensee would need to receive approval under Agreement State As 20.2002 provisions, and the unlicensed facility would need to receive an exemption or license from Agreement State B.

Discussion: There are several situations where the NRC and an Agreement State or multiple Agreement States would be involved in the disposal of material at an unlicensed facility:

1. An Agreement State licensee requests authorization under the States 20.2002-equivalent regulation to dispose of material at an unlicensed facility in that Agreement State. In this situation, only one Agreement State is involved, and that Agreement State would evaluate both the 20.2002-equivalent request and would license or exempt the unlicensed facility.

2. An Agreement State licensee requests authorization under the States 20.2002-equivalent regulation to dispose of material at an unlicensed facility in another Agreement State. In this situation, both Agreement States would need to become involved. The Agreement State that regulates the licensee seeking to dispose of (Page 37 of Total)

USCA Case #19-1240 Document #1827780 Filed: 02/10/2020 Page 2 of 3 FSME-12-025 material at an unlicensed facility in another Agreement State would need to approve disposal under the Agreement States 20.2002-equivalent regulation. The unlicensed facility would then need to obtain a license or an exemption from its Agreement State prior to accepting the material for disposal.

3. An Agreement State licensee requests authorization under the States 20.2002-equivalent regulation to dispose of material at an unlicensed facility in a non-Agreement State (a state under NRC jurisdiction). In this situation, both the Agreement State and the NRC would need to become involved. The Agreement State that regulates the license seeking to dispose of the material at an unlicensed facility in another state would need to approve disposal under the Agreement States 20.2002-equivalent regulation. The unlicensed facility would then need to obtain a license or an exemption from the NRC prior to accepting the material for disposal.

4. An NRC licensee requests authorization under 20.2002 to dispose of material at an unlicensed facility in an Agreement State. In this situation both the NRC and the Agreement State would need to become involved. The NRC would need to approve the disposal of the material under 20.2002. The unlicensed facility would then need to obtain a license or an exemption from the Agreement States regulations prior to accepting the material for disposal.

5. An NRC licensee requests authorization under 20.2002 to dispose of material at an unlicensed facility in a non-Agreement State. In this situation the NRC will review both the 20.2002 request and the exemption or license request. No Agreement State involvement is required. This issue was first addressed for a specific facility in a letter dated December 16, 2004 to the State of Idaho (ADAMS ML043510144).

In some cases, scenarios 2, 3, and 4 may not require the involvement of the NRC or another Agreement State because some materials are already exempt from the NRCs licensing requirements (and those of the Agreement States). When this is the case, the unlicensed facility does not need a specific exemption or license to dispose of the material. For example, a source material licensee may transfer unimportant quantities of source material (10 CFR 40.13(a)) to persons exempt (10 CFR 40.51(b)(3) & (4)). This can be done without any specific licensing action by the NRC (or Agreement State).

As noted in the scenarios discussed above, an Agreement State cannot authorize disposal at an unlicensed facility outside of its jurisdiction. If an Agreement State licensee requests authorization to send material to another Agreement State or a non-Agreement State for disposal at an unlicensed facility, then the Agreement State should contact the other Agreement State or the NRC to ensure that the disposal facility has a license for receiving and disposal of the material or receives an exemption prior to disposal.

All licensing actions taken by the Agreement States are subject to review under the Technical Quality of Licensing indicator during their Integrated Materials Performance Evaluation Program review.

(Page 38 of Total)

USCA Case #19-1240 Document #1827780 Filed: 02/10/2020 Page 3 of 3 FSME-12-025 In summary, the operator of an unlicensed facility receiving NRC and Agreement State regulated waste for disposal must receive either an exemption or a license from the appropriate regulatory authority (either the NRC or an Agreement State depending on the location of the disposal site) prior to receiving or disposal of the material.

In order to inform NRC licensees and interested stakeholders, specific guidance regarding the review process for the evaluation of requests under 20.2002 is under development. This information will be shared with the Agreement States once it has been finalized.

If you have any questions regarding the correspondence, please contact me at 301-415-3340 or the individual named below.

POINT OF CONTACT: Stephen Poy INTERNET: stephen.poy@nrc.gov TELEPHONE: (301) 415-7135 FAX: (301) 415-5955

/RA/

Brian J. McDermott, Director Division of Materials Safety and State Agreements Office of Federal and State Materials and Environmental Management Programs (Page 39 of Total)

USCA Case #19-1240 Document #1827780 Filed: 02/10/2020 Page 1 of 5 UNITED STATES NUCLEAR REGULATORY COMMISSION OFFICE OF NEW REACTORS OFFICE OF NUCLEAR REACTOR REGULATION OFFICE OF NUCLEAR MATERIAL SAFETY AND SAFEGUARDS WASHINGTON, DC 20555-0001 November 13, 2016 NRC REGULATORY ISSUE

SUMMARY

2016-11 REQUESTS TO DISPOSE OF VERY LOW-LEVEL RADIOACTIVE WASTE PURSUANT TO 10 CFR 20.2002 ADDRESSEES All NRC licensees. All Agreement State Radiation Control Program Directors and State Liaison Officers.

INTENT The U.S. Nuclear Regulatory Commission (NRC) is issuing this Regulatory Issue Summary (RIS) to correct the information provided in Information Notice (IN) 1986-90, Requests to Dispose of Very Low-Level Radioactive Waste Pursuant to 10 CFR 20.302. This RIS clarifies the application process for obtaining approvals to dispose of low-level waste (LLW) in accordance with Title 10 of the Code of Federal Regulations (10 CFR) 20.2002 regulations, or equivalent Agreement State regulations.

The NRC expects recipients to review the information for applicability to their facilities and to consider actions, as appropriate. However, this RIS requires no specific action or written response on the part of an addressee. The NRC is providing this RIS to the Agreement States for their information and distribution to their licensees as appropriate. This RIS supersedes Information Notice (IN) 1986-90.

BACKGROUND INFORMATION On November 3, 1986, the NRC issued IN 1986-90, Requests to Dispose of Very Low-Level Radioactive Waste Pursuant to 10 CFR 20.302, to inform nuclear reactor licensees of the authority of Agreement States in reviewing and approving requests to dispose of low-level radioactive waste pursuant to 10 CFR 20.302 (now 10 CFR 20.20021). IN 1986-90 incorrectly stated that in cases where a nuclear reactor facility is located in an Agreement State, the NRC does not have the legal basis for performing the reviews and granting approvals. The NRC performed a regulatory review of the 10 CFR 20.2002 process and determined that IN 1986-90 did not provide the correct information regarding regulatory approval to dispose of very low-level waste. The NRC issued an official clarification of the process to Agreement State regulators on March 13, 2012, entitled, Clarification of the Authorization for Alternate Disposal of Material Issued Under 10 CFR 20.2002 and Exemption Provisions in 10 CFR (FSME-12-025). This letter was issued to clarify the use of 10 CFR 20.2002 and similar Agreement State processes 1

10 CFR 20.2002 replaced 10 CFR 20.302 on May 21, 1991 (56 FR 23403).

ML16007A488 (Page 40 of Total)

USCA Case #19-1240 Document #1827780 Filed: 02/10/2020 Page 2 of 5 RIS 2016-11 Page 2 of 4 for the disposal of radioactive materials in Resource Conservation Recovery Act disposal facilities or other unlicensed facilities when the unlicensed facility is located in another State.

This clarification confirmed that an Agreement State would need to provide an exemption under its 10 CFR 20.2002-equivalent State regulations to a licensee seeking to dispose of waste at a facility in another State. The Agreement State where the facility is located, or the NRC in the case of non-Agreement State facilities, would need to license or exempt the unlicensed facility accepting the waste. This All Agreement States letter is accessible to the public in NRCs Agencywide Documents Access and Management System (ADAMS) under Accession No. ML12065A038.

SUMMARY

OF ISSUE NRC regulations in 10 CFR 20.2002 provide that a licensee or applicant for a license may apply to the Commission for approval of procedures to dispose of licensed material not otherwise authorized in 10 CFR Part 20 for disposal. Licensees have used 10 CFR 20.2002 to dispose of very LLW on a site-specific basis. This RIS makes the clarification that any licensees request for approval to dispose of licensed material under 10 CFR 20.2002, or the equivalent Agreement State regulations, must be submitted to the regulatory authority that issued the license for use of the radioactive material. For licensees under 10 CFR Part 50, Domestic Licensing of Production and Utilization Facilities, or Part 52, Licenses, Certifications, and Approvals for Nuclear Power Plants, this request should be made to the NRC in accordance with 10 CFR 50.4, Written Communications or 10 CFR 52.3, Written Communications. For NRC-issued licenses under 10 CFR Parts 30 (Rules of General Applicability to Domestic Licensing of Byproduct Material), 40 (Domestic Licensing of Source Material), and 70 (Domestic Licensing of Special Nuclear Material), the request should be made in accordance with 10 CFR 30.6, 10 CFR 40.5, or 10 CFR 70.5, Communications. For Agreement State licensees, this request should be made directly to the Agreement State regulatory authority. If the Agreement State has not adopted regulations equivalent to 10 CFR 20.2002, then the State may accomplish the same regulatory authorization through application of its specific exemption authority, which could approve the request to dispose of licensed material using procedures not otherwise authorized. Also, radioactive material licensees receiving a 10 CFR 20.2002 approval must follow other permitting requirements.

Details related to exemption request requirements and the involvement of the NRC and Agreement States are discussed in FSME-12-025, Clarification of the Authorization for Alternate Disposal of Material Issued under 10 CFR 20.2002 and Exemption Provisions in 10 CFR. These details include a discussion of several situations where the NRC and an Agreement State or multiple Agreement States would be involved in reviewing requests for and authorizing alternate procedures to dispose of licensed material under 10 CFR 20.2002 (or the equivalent Agreement States regulations).

Unlicensed disposal (or other) facilities that intend to take possession of licensed material must either obtain a license or an exemption from the requirement to have a license to possess the material. In Agreement States, this license or exemption must be obtained from the regulatory authority in the Agreement State. In non-Agreement States, the license or exemption must be obtained from the NRC. NRC staff practice is to issue an exemption from the requirement for a license for possession of the radioactive material to the facility intended to take possession of the material in conjunction with issuance of the 10 CFR 20.2002 authorization to the licensee disposing of the material.

(Page 41 of Total)

USCA Case #19-1240 Document #1827780 Filed: 02/10/2020 Page 3 of 5 RIS 2016-11 Page 3 of 4 In some cases, the involvement of the NRC or Agreement State may not be required because the licensed materials may be exempt from NRC or Agreement State licensing requirements. In this case, the unlicensed facility does not need a specific exemption or license to dispose of the material. For example, items meeting the criteria in 10 CFR 30.15, Certain items containing byproduct material, would not require a license or an exemption from either the NRC or the Agreement State.

Also, a source material licensee may transfer or dispose of unimportant quantities2 of source material under the regulations of 10 CFR 40.51(b)(3) and (4) to persons exempt under 10 CFR 40.13(a). Licensees are not required to request and receive NRC approval for these transfers. However, if requested, NRC staff will, on a case-by-case basis, review and approve such transfers. Additional information on NRC staff reviews of requests to transfer material under 10 CFR 40.51(b)(3) and (4) to persons exempt under 10 CFR 40.13(a) can be found in an Office of Nuclear Material Safety and Safeguards (NMSS) procedure, Review, Approval, and Documentation of Low-Activity Waste Disposals in Accordance with 10 CFR 20.2002 and 10 CFR 40.13(a) (ADAMS Accession No. ML092460058). If licensees have questions related to the necessity of a 10 CFR 20.2002 exemption with regard to disposing exempt materials, they can contact the NRC or Agreement State for clarification.

BACKFITTING THE ISSUE AND FINALITY DISCUSSION This RIS requires no action or written response. Any action that licensees take to implement changes or procedures in accordance with the information contained in this RIS ensures compliance with current regulations, is strictly voluntary, and, therefore, is not a backfit under any of the backfitting provisions contained in 10 CFR 50.109, 70.76, 72.62, 76.76, or the issue finality provision of 10 CFR Part 52, Licenses, Certifications, and Approvals for Nuclear Power Plants. Consequently, the staff did not perform a backfit analysis.

FEDERAL REGISTER NOTIFICATION A notice of opportunity for public comment on this RIS was not published in the Federal Register because it is informational and pertains to a staff position that does not represent a departure from current regulatory requirements and practice.

CONGRESSIONAL REVIEW ACT This RIS is not a rule as defined in the Congressional Review Act (5 U.S.C. §§ 801-808).

PAPERWORK REDUCTION ACT STATEMENT This RIS does not contain new or amended information collection requirements that are subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). Existing requirements were approved by the Office of Management and Budget (OMB), approval numbers 3150-0009, 3150-0011, 3150-0014, 3150-0017, 3150-0020, and 3150-0151.

2 There have been cases where licensees decontaminate material to exempt concentration levels as defined in 10 CFR 30.70, Exempt Concentrations.

(Page 42 of Total)

USCA Case #19-1240 Document #1827780 Filed: 02/10/2020 Page 4 of 5 RIS 2016-11 Page 4 of 4 PUBLIC PROTECTION NOTIFICATION The NRC may not conduct or sponsor, and a person is not required to respond to, an information collection unless the requesting document displays a currently valid OMB control number.

CONTACTS This RIS requires no specific action, or written response. If you have any questions about this summary, please contact the technical contacts listed below or the appropriate regional office.

/RA Pamela Henderson for / /RA/

Daniel S. Collins, Director Louise Lund, Director Division of Material Safety, State, Tribal, Division of Policy and Rulemaking and Rulemaking Programs Office of Nuclear Reactor Regulation Office of Nuclear Material Safety and Safeguards

/RA/

Michael C. Cheok, Director Division of Construction Inspection and Operational Programs Office of New Reactors Technical Contacts:

Donald Lowman, NMSS Stephen Poy, NMSS (301) 415-5452 (301) 415-7135 Donald.Lowman@nrc.gov Stephen.Poy@nrc.gov Micheal Smith, NRR (301) 415-3763 Micheal.Smith@nrc.gov Note: NRC generic communications may be found on the NRC public Web site, http://www.nrc.gov, under NRC Library/Document Collections (Page 43 of Total)

ML16007A488 *via email OFC NMSS/MSTR/ASPB NMSS/MSTR/ASPB *NMSS/MSTR/MSEB *NMSS/FCSE *NRR/DRA/ARCB/BC NAME SPoy PMichalak AMcIntosh KRamsey UShoop DATE 1/20/16 1/27/16 9/11/15 1/05/16 3/14/16 OFC *QTE *OCIO *OGC (NLO) NMSS/DUWP/D *NMSS/DSFM/D NAME CHsu DCullison OMikula JTappert MLombard DATE 1/08/16 4/04/16 10/20/16 5/5/16 9/19/16 OFC *NRO/DSEA/RPAC/BC *NRO/DCIP/D *NRR/DPR/PGCB/LA *NRR/DPR/PGCB/BC NRR/DPR/D NAME LBurkhart MCheok ELee (ABaxter for) SStuchell LLund DATE 08/02/16 10/06/16 09/27/16 10/06/16 10/21/16 OFC NMSS/MSTR/D NAME PHenderson for DCollins DATE 11/13/16 USCA Case #19-1240 Document #1827780 Filed: 02/10/2020 Page 1 of 3 UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 20555-0001 October 31, 2018 Mr. G. T. Powell EA-18-137 President and CEO/CNO STP Nuclear Operating Company South Texas Project P.O. Box 289

\Nadsworth, TX 77483

SUBJECT:

SOUTH TEXAS PROJECT, UNITS 1 AND 2 - RESPONSE TO THE AUGUST 14, 2018, LEDER ON THE DISPOSAL OF VERY LO\N-LEVEL RADIOACTIVE MATERIAL AND EXERCISE OF ENFORCEMENT DISCRETION (EPID L-2018-LR0-0032)

Dear Mr. Powell:

I am responding to your letter to Mr. Brian Holian, Acting Director, Office of Nuclear Reactor Regulation, dated August 14, 2018 (Agencywide Documents Access and Management System Accession No. ML18226A352), on the disposal of very low-level radioactive waste from the South Texas Project, Units 1 and 2 (STP). In the letter, STP Nuclear Operating Company (STPNOC, the licensee) requested that the U.S. Nuclear Regulatory Commission (NRC) acknowledge the existing agreement between STPNOC and the State of Texas for the disposal of certain waste streams.

The NRC staff evaluated your request and determined that, by law, STPNOC must dispose of

. licensed material in accordance with Title 10 of the Code of Federal Regulations ( 10 CFR)

Section 20.2001, "General requirements," unless it selects a different method, as is permitted under 10 CFR 20.2002. STPNOC chose to dispose of licensed material using a different method. In particular, STPNOC sent very low-level waste for disposal in an exempt waste facility in the State of Texas. The NRC acknowledges the existing exemption between the State of Texas 1 and unlicensed disposal facilities; however, NRC authorization for STPNOC to use these sites for disposal of this material is also required, as discussed below.

As discussed in the guidance set forth in Regulatory Issue Summary (RIS) 2016-11, "Requests to Dispose of Very Low Level radioactive \Nastes Pursuant to 10 CFR 20.2002," an Agreement State does not have the authority to grant permission to a nuclear power plant licensee for proposed procedures to dispose of low-level waste. Rather, a licensee must receive approval of proposed procedures not otherwise authorized in the regulations to dispose of licensed material under 10 CFR 20.2002, "Method for obtaining approval of proposed disposal procedures." This 1 Letter dated March 7, 2008, from Dr. Hans Weger, Texas Commission on Environmental Quality (TCEQ), to Mr. R.A. Gangluff, STPNOC. STPNOC included a copy of this letter as Attachment 2 to its letter dated August 14, 2018. This TCEQ letter concluded that the specified STPNOC waste streams are exempt under the relevant provisions of the Texas regulations and could be disposed of in a Texas Class 1 or 2 industrial landfill.

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USCA Case #19-1240 Document #1827780 Filed: 02/10/2020 Page 2 of 3 G. Powell approval must come from the regulatory authority that issued the license for use of the radioactive material; in this case, that is the NRC. Thus, the NRC is the regulatory authority to grant approvals for disposal procedures under 10 CFR 20.2002 for STP.

STPNOC has raised issues associated with the RIS and with prior guidance. The NRC is evaluating the issue generically to provide further clarity. In view of that effort, and in light of the low safety significance of the non-compliance with 10 CFR 20.2002, I have been authorized, after consultation with the Director, Office of Enforcement, to exercise enforcement discretion for past non-compliance associated with this issue in accordance with Section 3.5 of the Enforcement Policy. Going forward, the NRC staff will continue to exercise enforcement discretion for STPNOC's existing process for disposal of low-level waste while the NRC staff evaluates regulatory options to address this issue. Once a resolution path is determined, the NRC will contact STPNOC to provide additional information.

If you have any questions, please contact Lisa Regner at 301 415-1906 or via e-mail at Lisa.Regner@nrc.gov.

Sincerely,

~C.~

Craig G. Erlanger, Director Division of Operating Reactor Licensing Office of Nuclear Reactor Regulation Docket Nos. 50-498 and 50-499 cc: Listserv (Page 46 of Total)

ML18260A250 *via e-mail OFFICE NRR/DORL/LPL4/PM NRR/DORL/LPL4/LA NRR/DORL/LPL4-1 /BC NAME LRegner PBlechman RPascarelli DATE 10/30/2018 10/17/2018 10/30/2018 OFFICE RIV/DRS/PB2/BC* OGC/GCHEA/AGCMLE* OGC/GCLR/RMR*

NAME HGepford MLemoncelli (NLO) TCampbell I NLO DATE 10/30/2018 10/30/2018 10/30/2018 OFFICE NRR/DRA/D* OE/D NRR/DORL/D NAME MFranovich ABoland CErlanger DATE 10/30/18 10/30/2018 10/31/2018 USCA Case #19-1240 Document #1827780 Filed: 02/10/2020 Page 1 of 10 ELLEN C. GINSBERG Vice President, General Counsel & Secretary 1201 F Street, NW, Suite 1100 Washington, DC 20004 P: 202.739.8140 ecg@nei.org nei.org February 28, 2019 Mr. Ho Nieh Mr. Scott Moore Director, Office of Nuclear Reactor Regulation Acting Director, Office of Nuclear Material U.S. Nuclear Regulatory Commission Safety and Safeguards Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001

Subject:

Comments on Regulatory Issue Summary 2016-11, Requests to Dispose of Very Low-Level Radioactive Waste Pursuant to 10 CFR 20.2002

Dear Mr. Nieh and Mr. Moore:

The Nuclear Energy Institute (NEI) 1 writes to express our concerns with Regulatory Issue Summary (RIS) 2016-11, Requests to Dispose of Very Low-Level Radioactive Waste Pursuant to 10 CFR 20.2002 (Nov. 13, 2016), and the recent U.S. Nuclear Regulatory Commission (NRC) staff action to give RIS 2016-11 the force and effect of law in the agencys enforcement process. Reversing decades of agency guidance and practice, RIS 2016-11 (at page 2) declared that any licensees request for approval to dispose of licensed material under 10 CFR 20.2002, or the equivalent Agreement State regulations, must be submitted to the regulatory authority that issued the license for use of the radioactive material.

Prior to this change in policy, the NRC had long held that the licensing and regulatory authority over the disposal of low-level waste (LLW) generated by a reactor facility located within an Agreement State resided with the Agreement State in which the waste was generated (although the NRC maintained authority over the handling and storage of LLW at all reactor facilities). 2 Without acknowledging the well-reasoned legal underpinnings of the NRCs prior interpretation of section 274 of the Atomic Energy Act of 1954, as amended (AEA) and 10 CFR § 150.15, RIS 2016-11 and subsequent enforcement actions simply reverse course. To remedy these clear violations of the AEA, the Administrative Procedure Act (APA), and Commission regulations, NEI requests that the NRC, in accordance with 10 CFR § 2.804(f), treat this letter as a post-promulgation comment on the agencys new interpretation, and publish a statement in the Federal Register rescinding RIS 2016-11 and reinstating the NRCs prior longstanding position in IN 86-90 and the referenced OELD Opinion.

1 NEI is responsible for establishing unified policy relating to matters affecting the nuclear energy industry, including the regulatory aspects of generic operational and technical issues. NEIs members include entities licensed to operate commercial nuclear power plants in the United States, nuclear plant designers, major architect and engineering firms, fuel cycle facilities, nuclear materials licensees, and other organizations involved in the nuclear energy industry.

2 See Office of Executive Legal Director (OELD) Opinion, Jurisdiction Over Low Level Waste Management at Reactor Sites in Agreement States (Sept. 13, 1985) (ML103430218); Information Notice (IN) No. 86-90, Requests to Dispose of Very Low-Level Radioactive Waste Pursuant to 10 CFR 20.302 (Nov. 3, 1986) (ML031250358).

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USCA Case #19-1240 Document #1827780 Filed: 02/10/2020 Page 2 of 10 NEI Comments on RIS 2016-11 February 28, 2019 Page 2 A. The AEA and NRC Regulations Allow Agreement States to Assume Jurisdiction Over the Disposal of LLW Generated at Reactor Facilities.

Section 274 of the AEA authorizes the NRC to transfer regulatory and licensing authority over specific categories of nuclear materials within a state to the state government. 3 Under that provision, Congress allows the NRC to enter into agreements with the Governor of any State providing for discontinuance of the regulatory authority of the [NRC] and the assumption of the authority by the state. 4 Before doing so, the NRC must find that the regulatory regime of the proposed Agreement State is compatible with the [NRCs] program and that the states program is adequate to protect the public health and safety. 5 In accordance with section 274, many Agreement States have been transferred regulatory and licensing authority over LLW disposal, including states with reactor and fuel-cycle facilities. Section 274(c),

however, provides that such agreements for NRC discontinuance of authority may not cover the regulation of waste disposal falling under two enumerated categories: (i) disposal into the ocean or sea of byproduct, source, or special nuclear waste materials as defined in regulations or orders of the Commission; and (ii) disposal of such other byproduct, source, or special nuclear material as the Commission determines by regulation or order should, because of the hazards or potential hazards thereof, not be so disposed of without a license from the Commission.6 The clear implication of this language is that Agreement States can assume regulatory authority over LLW disposal that does not fall within either of these two categories. Importantly, the issues addressed in RIS 2016-11 do not involve either the disposal of nuclear materials (i) in the ocean or sea, or (ii) that the Commission has determined by regulation or order should, because of the hazards or potential hazards thereof, not be so disposed of without a license from the Commission. To the contrary, the Commission allows Agreement States to regulate LLW disposal. In particular, using 10 CFR § 20.2002 or compatible Agreement State processes, the Commission has long allowed the disposal of so-called Very LLW in Resource Conservation and Recovery Act (RCRA) permitted facilities that are neither licensed by the NRC nor Agreement State programs. 7 Nothing in section 274 directs the NRC to treat the disposal of LLW from reactor facilities (or any other production or utilization facility) any differently than LLW from other sources. Section 274(c) does provide that agreements for NRC discontinuance of authority may not cover the regulation of the 3

42 U.S.C. § 2021.

4 42 U.S.C. § 2021(b).

5 42 U.S.C. § 2021(d)(2).

6 42 U.S.C. § 2021(c)(3), (4).

7 Very LLW refers to waste that contains residual radioactivity falling well below the Class A LLW limits found in 10 CFR Part 61. Very LLW can be safely disposed in landfill facilities that are regulated under RCRA.

(Page 49 of Total)

USCA Case #19-1240 Document #1827780 Filed: 02/10/2020 Page 3 of 10 NEI Comments on RIS 2016-11 February 28, 2019 Page 3 construction and operation of any production or utilization facility or any uranium enrichment facility. 8 But notably, Congress included only the construction and operation of production and utilization facilitiesnot the disposal of waste from production and utilization facilities within this prohibition.

Congress made this choice even thoughand likely becauseit imposed different, risk-based limitations on the discontinuance of authority over disposal of nuclear material in other subparagraphs in section 274(c).

Had Congress intended to impose a blanket limitation on the ability of Agreement States to regulate the disposal of wastes from production and utilization facilities it could have done so. Instead, Congress provided the Commission with the authorityby regulation or orderto determine which wastes presented sufficient hazards such that only the Commission could remain the regulatory and licensing authority. But the Commission has neither by regulation nor by order determined that it must retain authority over LLW generated by production and utilization facilities. To the contrary, LLW from production and utilization facilities is regularly disposed of in Agreement State facilities and, in the case of Very LLW, RCRA-permitted facilities.

The NRCs regulations implementing and interpreting section 274(c) in 10 CFR Part 150 further demonstrate the jurisdictional lines over LLW. Restating the requirement of section 274(c), 10 CFR

§ 150.15(a)(1) provides that persons in Agreement States are not exempt from the Commissions licensing and regulatory requirements with respect to . . . [t]he construction and operation of any production or utilization facility. That regulation further provides that operation of a facility, as that term is used in that subparagraph, includes, but is not limited to (i) the storage and handling of radioactive wastes at the facility site by the person licensed to operate the facility, and (ii) the discharge of radioactive effluents from the facility site. 9 Had the Commission intended to retain jurisdiction over the disposal of LLW generated at a production or utilization facility site, it would have said so.

The Statement of Considerations for Part 150 conclusively demonstrates that the Commission deliberatively omitted disposal of LLW generated at a reactor facility site from 10 CFR § 150.15(a)(1).

After receiving comments from some fifty organizations and individuals, the Atomic Energy Commission (AEC) explained that many comments received were concerned in the main with the question of whether the Commission should continue control in agreement States of the commercial land burial of byproduct, source, or special nuclear wastes . . . . 10 After considering the various comments, the Commission decided against blanket reservations of control over land burial of waste . . . . 11 It further explained: Control over the handling and storage of waste at the site of a reactor, including 8

42 U.S.C. § 2021(c)(1).

9 10 CFR § 150.15(a)(1) (emphasis added).

10 Atomic Energy Commission, Part 150Exemptions and Continued Regulatory Authority in Agreement States Under Section 274, 27 Fed. Reg. 1351, 1351 (Feb. 14, 1962).

11 Id.

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USCA Case #19-1240 Document #1827780 Filed: 02/10/2020 Page 4 of 10 NEI Comments on RIS 2016-11 February 28, 2019 Page 4 effluent discharge, will be retained by the Commission as a part of the control of reactor operation. The states will have control over land burial of low level wastes. 12 Thus, the Commission clearly and intentionally distinguished between the storage and handling of LLW (authority over which the NRC must always maintain), and the disposal of LLW (authority over which may be transferred to Agreement States).

B. NRCs Longstanding Position Is That an Agreement State Has Authority over the Disposal of LLW Generated by a Reactor Facility within the Agreement State.

For decades, the NRC affirmed the AECs interpretation of section 274 and 10 CFR § 150.15 discussed in the previous section that the Agreement Statenot the Commissionwas the proper authority to review and approve the disposal of Very LLW generated by a reactor facility under the states equivalent of 10 CFR 20.2002. The NRCs Office of Executive Legal Director (OELD) specifically addressed NRC versus Agreement State jurisdiction over LLW at reactor sites in a memorandum entitled, Jurisdiction over Low Level Waste Management at Reactor Sites in Agreement States (Sept.

13, 1985). The OELD Opinion looked to the plain language and structure of section 274 and 10 CFR

§ 150.15 to draw a distinction between the need for the NRC to maintain authority to license and regulate the handling and storage of LLW at the reactor facility site, and the ability of the Agreement States to maintain authority to license and regulate the disposal of LLW outside the reactor facility site.

After concluding that in Agreement States, the NRC continues to maintain authority to license and regulate the handling and storage of low-level waste in the exclusion area (i.e., part of the reactor facility site), the OELD Opinion explained:

The conclusion differs, however, regarding the disposal of low level radioactive waste generated by the operation of the nuclear reactor. The omission of low level waste disposal in 10 CFR 150.15 as a function reserved to the Federal Government implies that it has been relinquished to the Agreement States. The Statement of Considerations accompanying Part 150 when it was promulgated clearly demonstrates that the Atomic Energy Commission considered the question of Agreement State authority over the disposal of reactor low level waste and decided to relinquish the function, while retaining handling and storage. 13 The OELD Opinion supported this conclusion by quoting the Part 150 Statement of Considerations, which declared that: (1) [t]he Commission has decided against blanket reservations of control over land burial of waste . . .; (2) [c]ontrol over the handling and storage of waste at the site of a reactor, 12 Id. (emphasis added).

13 OELD Opinion at 2.

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USCA Case #19-1240 Document #1827780 Filed: 02/10/2020 Page 5 of 10 NEI Comments on RIS 2016-11 February 28, 2019 Page 5 including effluent discharge, will be retained by the Commission as a part of the control of reactor operation; and (3) [t]he states will have control over land burial of low level wastes. 14 Importantly, the OELD Opinion went on to note that because the AEA requires that the agency identify, by regulation or order, the regulatory authority over which, if any, forms of LLW disposal cannot be transferred to Agreement States, the NRC is not at liberty to vary the clear meaning given to this regulation by the Atomic Energy Commission without a rulemaking proceeding, or by issuance of appropriate orders, pursuant to Section 274c. of the Atomic Energy Act, as amended. 15 This conclusion was incorporated into Generic Letter 85-14, Commercial Storage at Power Reactor Sites of Low-level Radioactive Waste Not Generated by the Utility (Aug. 1, 1985), which states: [I]nterim storage of LLW within the exclusion area of a reactor site, as defined in 10 CFR 100.3(a), will be subject to NRC jurisdiction regardless of whether or not the reactor is located in an Agreement State, pursuant to the regulatory policy expressed in 10 CFR 150.15(a)(l). Within Agreement States, for locations outside the exclusion areas, the licensing authority is in the Agreement State. 16 The OELD interpretation of section 274 and 10 CFR § 150.15 was also incorporated into Information Notice (IN) No. 86-90, Requests to Dispose of Very Low-Level Radioactive Waste Pursuant to 10 CFR 20.302 (Nov. 3, 1986). IN 86-90 states:

This notice is to inform nuclear reactor licensees of the authority of Agreement States in reviewing and approving disposals of waste that in the past might have been reviewed by the NRC pursuant to 10 CFR

§ 20.302(a). In those cases where the reactor facility was in an Agreement State, the NRC did not have a legal basis for performing the reviews and granting approvals. 17 IN 86-90 further states that 10 CFR § 20.302(a) (which has since been re-designated as 10 CFR

§ 20.2002(a)) does not address NRC versus Agreement State jurisdiction, but that in a recent legal opinion regarding regulatory jurisdiction, the NRCs Executive Legal Director made it clear that in Agreement States NRC approval is not necessary for within or outside of the exclusion area of low-level waste from a reactor facility. Such approval is within the jurisdiction of the Agreement State. For 14 Id. (quoting 27 Fed. Reg. at 1351) (emphasis added by OELD Opinion).

15 Id.

16 Generic Letter 85-14, Commercial Storage at Power Reactor Sites of Low-level Radioactive Waste Not Generated by the Utility (Aug. 1, 1985) (ML031150709) (emphasis added). The OELD Opinion was itself also included in NUREG/CR-5569, Rev. 1, Health Physics Positions (HPPOS) Data Base at 173 (Feb. 1994) (ML093220108) as HPPOS-097 PDR-9111210206.

17 IN 86-90 at 1.

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USCA Case #19-1240 Document #1827780 Filed: 02/10/2020 Page 6 of 10 NEI Comments on RIS 2016-11 February 28, 2019 Page 6 disposal of very low-level radioactive waste in States that are not Agreement States, only NRC approval is required. 18 C. The NRCs Change in Position in RIS 2016-11 Violates the AEA, APA, and NRC Regulations.

For decades, licensees relied on the position set forth in IN 86-90, Generic Letter 85-14, and the OELD Opinion. Despite the longstanding, well-reasoned interpretation of section 274, 10 CFR § 150.15, and 10 CFR § 20.2002, the NRC issued RIS 2016-11 on November 13, 2016 without first soliciting input from industry, the Agreement States, or any other stakeholders. RIS 2016-11 simply declared that:

IN 1986-90 incorrectly stated that in cases where a nuclear reactor facility is located in an Agreement State, the NRC does not have the legal basis for performing the reviews and granting approvals. The NRC performed a regulatory review of the 10 CFR 20.2002 process and determined that IN 1986-90 did not provide the correct information regarding regulatory approval to dispose of very low-level waste. 19 According to RIS 2016-11, the NRC was making a clarification that any licensees request for approval to dispose of licensed material under 10 CFR 20.2002, or the equivalent Agreement State regulations, must be submitted to the regulatory authority that issued the license for use of the radioactive material. 20 In the case of licensees for production and utilization facilities, therefore, the request would now need to be made to the NRC. But RIS 2016-11 provided no discussion of the jurisdictional issues discussed in the OELD Opinion and offered no alternative interpretations of section 274 and 10 CFR

§ 150.15. It did not, for example, point to any regulation or order in which the Commission determined that itnot the Agreement Statesmust retain licensing and regulatory authority over the disposal of low-level waste as required by section 274 and Part 150. As discussed below, RIS 2016-11 and its subsequent invocation in enforcement actions violate the AEA, APA, and NRC regulations.

1. RIS 2016-11 relies on an interpretation not in accordance with Section 274 and Part 150.

The OELD Opinion and IN 86-90 conclusions that the NRC has no authority over the disposal of LLW from a reactor facility located in an Agreement State was based on the plain language and structure of 18 Id.

19 RIS 2016-11 at 1. It is unclear which regulatory review is referenced here, but in 2012, the NRC issued Clarification of the Authorization for Alternate Disposal of Material Issued Under 10 CFR 20.2002 and Exemption Provisions in 10 CFR (FSME-12-025) (Mar. 13, 2012) (ML12065A038). While this letter to Agreement States suggests that both the NRC and the Agreement State would need to become involved when [a]n NRC licensee requests authorization under 20.2002 to dispose of material at an unlicensed facility in an Agreement State, it never explains why 10 CFR

§ 20.2002 is universally applicable in such scenarios. Id. at 2.

20 RIS 2016-11 at 2.

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USCA Case #19-1240 Document #1827780 Filed: 02/10/2020 Page 7 of 10 NEI Comments on RIS 2016-11 February 28, 2019 Page 7 section 274(c), and subsequent determinations in the Part 150 rulemaking. Section 274(c)(4) grants the NRC the ability to withhold from Agreement States the authority over any nuclear material the Commission has determined by regulation or order should, because of the hazards or potential hazards thereof, not be so disposed of without a license from the Commission. In the Part 150 rulemaking, the Commission decided against blanket reservations of control over land burial of waste . . . . and instead determined that Agreement States will have authority over the disposal by land burial of LLW. 21 And while section 274(c)(1) precludes the transfer to Agreement States of authority over the construction and operation of reactor facilities, disposal of wastewhether from reactor facilities or otherwiseis dealt with in other subparagraphs in section 274(c). Because disposal is clearly addressed in other subparagraphs in section 274(c)and not in section 274(c)(1)the clear conclusion to be drawn is that section 274(c)(1) does not preclude the transfer to Agreement States of authority over the disposal of LLW waste from reactor facilities. For this reason, 10 CFR § 150.15 necessarily draws a distinction between the need for the NRC to maintain authority to license and regulate the handling and storage of LLW at the reactor facility site, and the ability of the Agreement States to maintain authority to license and regulate the disposal of LLW outside the reactor facility site. By taking the opposite view in RIS 2016-11and doing so without conducting a notice and comment rulemakingthe NRC abused its discretion and took action not in accordance with section 274 and 10 CFR § 150.15. 22

2. RIS 2016-11 contains no reasoned explanation for the NRCs new interpretation.

The APAs requirement of reasoned decision-making ordinarily demands that an agency acknowledge and explain the reasons for a changed interpretation. 23 An agency may not, for example, depart from a prior policy sub silentio or simply disregard rules that are still on the books. 24 When switching interpretations, an agency must always show that there are good reasons for the new policy. 25 And in certain circumstanceslike those heremore is required. The Supreme Court has held that the APA requires an agency to provide more substantial justification when its new policy rests upon factual findings that contradict those which underlay its prior policy; or when its prior policy has engendered serious reliance interests that must be taken into account. 26 [I]t is not that further justification is demanded by the mere fact of policy change[,] but that a reasoned explanation is needed for 21 27 Fed. Reg. at 1351 22 As the OELD Opinion recognized, section 274(c)(4) allows the NRC to determine by regulation or order that authority over certain nuclear material should not transferred to an Agreement State because of its hazards or potential hazards. The NRC has made no such determination with regard to LLW by regulation or order.

23 Verizon Communications Inc. v. FCC, 740 F.3d 623, 636 (D.C. Cir. 2014).

24 FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009).

25 Id.

26 Perez v. Mortgage Bankers Assn, 135 S. Ct. 1199, 1209 (2015).

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USCA Case #19-1240 Document #1827780 Filed: 02/10/2020 Page 8 of 10 NEI Comments on RIS 2016-11 February 28, 2019 Page 8 disregarding facts and circumstances that underlay or were engendered by the prior policy. 27 Put another way, [i]t would be arbitrary and capricious to ignore such matters. 28 RIS 2016-11 fails to satisfy the basic requirements of reasoned decision-making demanded of an agency when changing an interpretation. Other than a conclusory statement that IN 1986-90 incorrectly stated that in cases where a nuclear reactor facility is located in an Agreement State, the NRC does not have the legal basis for performing the reviews and granting approvals, RIS 2016-11 fails to identify any reasonlet alone a good reasonto alter the prior policy. Nor does RIS 2016-11 meet the heightened standard involved here given the longstanding industry reliance on IN 86-90 (as well as Generic Letter 85-14 and HPPOS-097 PDR-9111210206). Indeed, RIS 2016-11 makes no mention of the OELD Opinion referenced in IN 86-90. Nor does it provide any analysis of the plain language and structure of section 274 and 10 CFR § 150.15, or the regulatory history of Part 150 even though they all provide the underpinning for the position established in IN 86-90. Accordingly, the NRCs issuance of RIS 2016-11 was arbitrary and capricious and violates the APA.

Not only was this departure from NRCs longstanding position insufficiently explained, it is unclear why such a change would be needed because the NRC has ample tools to evaluate Agreement State regulation of LLW. Under the Integrated Materials Performance Evaluation Program (IMPEP), the NRC already provides comprehensive oversight of Agreement State programs, including LLW disposal programs. IMPEP reviews ensure that public health and safety are adequately protected from the potential hazards associated with the use of radioactive materials and that Agreement State programs are compatible with NRCs program. To be sure, there has been no suggestion that the approval of the disposal of Very LLW pursuant to Agreement State equivalents of 10 CFR § 20.2002 has somehow created a radiological safety issue. Nor has there been any suggestion of incompatibility with the NRCs program. But if there were such concerns, the IMPEP is the proper tool to identify and remedy any such findings. Accordingly, there is no need for NRC-licensed facilities within Agreement States to seek an exemption from NRC to dispose of LLW in a non-Part 61 LLW disposal facility or for the NRC to review 10 CFR § 20.2002 requests for the offsite disposal of Very LLW generated by such licensees.

3. The NRC violated its own procedures and regulations when it promulgated RIS 2016-11.

Equally problematic is the NRCs failure to follow its own processes and regulations when issuing RIS 2016-11. Under 10 CFR § 2.804(e)(2), the NRC shall provide for a 30-day post-promulgation comment period for . . . [a]ny interpretative rule. In accordance with 10 CFR § 2.804(f), [f]or any post-promulgation comments received under paragraph (e) of this section, the Commission shall publish a statement in the Federal Register containing an evaluation of the significant comments and any revisions of the rule or policy statement made as a result of the comments and their evaluation.

27 Fox, 556 U.S. at 515-16.

28 Id. at 515.

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USCA Case #19-1240 Document #1827780 Filed: 02/10/2020 Page 9 of 10 NEI Comments on RIS 2016-11 February 28, 2019 Page 9 Although not defined in the APA, the Supreme Court has held that the critical feature of interpretive rules is that they are issued by an agency to advise the public of the agencys construction of the statutes and rules which it administers. 29 On its face, RIS 2016-11 is an interpretative rule as it advises the public of the NRCs construction of 10 CFR § 20.2002 and, by RIS 2016-11s repudiation of IN 86-90 (and the referenced OELD Opinion), 10 CFR § 150.15 and section 274 as well.

Despite the agencys own requirements for interpretative rules, the NRC has still yet to provide the public with a post-promulgation comment period for RIS 2016-11. The NRC should thus treat this letter as a post-promulgation comment and should publish a statement in the Federal Register rescinding RIS 2016-11 and reinstating the longstanding position in IN 86-90 (and the referenced OELD Opinion).

4. RIS 2016-11 contains a seriously flawed backfit analysis.

RIS 2016-11 concedes that the staff did not perform a backfit analysis ostensibly because [a]ny action that licensees take to implement changes or procedures in accordance with the information contained in this RIS ensures compliance with current regulations, is strictly voluntary, and, therefore, is not a backfit. 30 That conclusion ignores the fact that in reliance on the NRCs longstanding position, licensees have developed procedures, entered into contracts, and obtained approvals from Agreement States for the disposal of low-level waste in accordance with Agreement State regulations (including Agreement State regulations equivalent to 10 CFR § 20.2002).

Notwithstanding the incorrect disclaimer in RIS 2016-11 that licensees are required to take no action 31 because it purportedly provides a mere clarification, the NRC has relied on RIS 2016-11 as the basis for enforcement action under the theory that an Agreement State does not have the authority to grant permission to a nuclear plant licensee for proposed procedures to dispose of low-level waste. 32 The NRC made this determination despite the fact that the Agreement State had granted the licensee an authorization for the disposal of certain low-level waste streams in accordance with the states equivalent to 10 CFR 20.2002. Thus, the basis for the NRCs summary dismissal of its obligation to perform a backfitting analysis is incorrect. That is, the changed interpretation provided in the RIS requires licensees that have obtained approval from an Agreement State for alternative disposal of LLW to obtain approval from the NRC prior to continuing such disposals or risk enforcement action.

29 Mortgage Bankers, 135 S. Ct. at 1204 (quoting Shalala v. Guernsey Memorial Hospital, 514 U.S. 87, 99 (1995)).

30 RIS 2016-11 at 3.

31 Id.

32 EA-18-137, South Texas Project, Units 1 & 2 - Response to the August 14, 2018, Letter on the Disposal of Very Low-Level Radioactive Material and Exercise of Enforcement Discretion (EPID L-2018-LRO-0032) at 1 (Oct. 31, 2018)

(ML18260A250).

(Page 56 of Total)

USCA Case #19-1240 Document #1827780 Filed: 02/10/2020 Page 10 of 10 NEI Comments on RIS 2016-11 February 28, 2019 Page 10

5. The NRC is improperly relying on RIS 2016-11 to justify enforcement actions.

As noted in the previous section, the NRC has explicitly relied on RIS 2016-11 as the basis for enforcement action. Such agency action is troubling because interpretive rules (such as RIS 2016-11) do not have the force and effect of law and are not accorded that weight in the adjudicatory process. 33 Nonetheless, the enforcement action cited appears to entirely rely on RIS 2016-11 as the basis for the NRCs decision and further notes that because the licensee has raised issues associated with the RIS and with prior guidance, the NRC is powerless to take action in this particular adjudication until the issue is addressed generically to provide further clarity. 34 But the problem here is not of the licensees making; it is that of the NRCs based on the agencys unreasonable decision to treat RIS 2016-11 as a binding substantive requirement.

In summary, NEI requests that the NRC, in accordance with 10 CFR § 2.804(f), treat this letter as a post-promulgation comment on the agencys new interpretation in RIS 2016-11, and publish a statement in the Federal Register rescinding RIS 2016-11 and reinstating the NRCs prior position in IN 86-90 and the referenced OELD Opinion. Thank you for your consideration of NEIs comments on behalf of the industry. If the NRC staff has questions or would like to discuss these or other issues, please do not hesitate to contact me (ecg@nei.org; 202.739.8140) or Jonathan Rund (jmr@nei.org; 202.739.8144).

Very truly yours, Ellen C. Ginsberg c: Ms. Mary Spencer, OGC/AGG/RMR Mr. Bo Pham, NMSS/DUWP Ms. Andrea Kock, NMSS/MSST Mr. Micheal Franovich, NRR/DRA 33 Guernsey, 514 U.S. at 99.

34 EA-18-137 at 2.

(Page 57 of Total)

USCA Case #19-1240 Document #1827780 Filed: 02/10/2020 Page 1 of 1

- ~

============ENERGYSOLUTIONS============

April 8, 2019 Craig G. Erlanger, Director Division of Operating Reactor Licensing Office of Nuclear Reactor Regulation

• United States Nuclear Regulatory Commission Washington, D.C. 20555-0001 Also sent via email: Craig.Erlanger@mc.gov

SUBJECT:

EnergySolutions' Support of Regulatory Issue Summary (RIS) 2016-U, '.'Requests to Dispose of Very Low-Level Radioactive Waste Pursuant to 10 CFR 20.2002"

Dear Mr. Erlanger,

Greetings. We are sending you this letter to support the views taken by the Nuclear Regulatory Commission (NRC) in your letter to Mr. G.T. Powell, President and CEO/CNO, STP Nuclear Operating Company dated October 31, 2018. Specifically, two points in your letter are noteworthy, the first is that a 10 CFR 20.2002 authorization for a Part 50 licensee must be granted by the NRC and.secondly, there is a need for more clarification about this authorization process for the disposal of low-level radioactive waste.

In rev\ewing this issue, we have also carefully examined the Nuclear Energy Institute (NEI) letter dated February 28, 2019 which criticized the issuance and contents ofRIS 2016-1 L In our view, RIS 2016-11 is consistent with the NRC position set forth in the All Agreement States letter, "Clarification of th.e Authorization/or Alternate Disposal ofMaterial Issued Under JO CFR 20.2002 and Exemption Provisions in JO CFR (FSME-J2-025)" dated March 13, 2012. In particular, Scenario 4 set forth in .the 2012 All Agreement States letter aligns with the situation being ad_dressed in your letter to Mr. G.T. Powell. Further, NEI states the view that issuance and reliance on the RIS violates the Administrative Procedures Acf(APA) and Commission regulations. We fundamentally do not agree with this position as no enforcement action has been taken based upon the RIS. Specifically, in the case ofSTP, enforcement discretion was used and no violations were issued etc.

We have concerns about the need for potentially continuing to use enforcement discretion to address the IO CFR 20.2002 authorization issue for Part 50 licensees and we certainly agree with the NRC that additional generic clarification is needed to make the 20.2002 authorization process more understandable and consistent for the nuclear industry. In view of our perspectives on this issue, we would like to meet with you and other appropriate NRC staff to share our views in more detail and to work with the NRC as it strives to provide more clarification on this important authorization_to allow disposal of low-level radioactive waste.

We look forward to communicating with your office to arrange this meeting and share with you some agenda topics to facilitate our discussioh. Again, we support your views and are eager to work with the NRC to enhance clarification about use of the 10 CFR 20.2002 *authorization.

Thank you.

John Christian President EnergySolutions, LLC Ph: 571-215-9066 Email: jchristian@energysolutions.com 299 South Main Street, Suite 1700, Salt Lake City, UT 84111 (801) 649-2000

• www.energysolutions.com (Page 58 of Total)

USCA Case #19-1240 Document #1827780 Filed: 02/10/2020 Page 1 of 3 July 17, 2019 Mr. John Lubinski, Director Office of Nuclear Materials and Safeguards U.S. Nuclear Regulatory Commission Washington, D.C., 20555-0001 Also sent via e-mail: John.Lubinski@nrc.gov

SUBJECT:

Waste Control Specialists Concerns with Regulatory Issue Summary (RIS) 2016-11, Requests to Dispose of Very Low-Level Radioactive Waste Pursuant to 10 CFR 20.2002

Dear Mr. Lubinski,

I am writing to express Waste Control Specialists (WCS) views on the Nuclear Regulatory Commissions (NRC) Regulatory Issue Summary (RIS) 2016-11 and resulting impacts on regulatory stability and efficiency in the area of disposal of very low-level radioactive waste (VLLW).

Please be aware that RIS 2016-11 and a subsequent 2018 NRC inspection of South Texas Project Nuclear Operating Companys (STPNOC) South Texas Project Units 1 and 2 and related NRC enforcement action (EA-18-137) have generated confusion among WCS utility customers. The RIS states that any licensees request for approval to dispose of licensed material under 20.2002, or the equivalent Agreement State regulations, must be submitted to the regulatory authority that issued the license for use of the radioactive material. Further, in an October 31, 2018 response to a STPNOC letter dated August 14, 2018, the NRC staff opined that a licensee must receive approval of proposed procedures not otherwise authorized in the regulations to dispose of licensed material under 10 CFR 20.2002, and that [t]his approval must come from the regulatory authority that issued the license for use of the radioactive material; in this case, that is the NRC.

The foregoing NRC statements are making some utility licensees reluctant to use WCS for VLLW disposal due to a misconception that those statements in RIS 2016-11 are applicable to the Texas Commission on Environmental Quality (TCEQ) regulatory process that governs the WCS VLLW disposal process. We remain confident that utility customers may continue to send Low-(Page 59 of Total)

USCA Case #19-1240 Document #1827780 Filed: 02/10/2020 Page 2 of 3 Level Radioactive Waste (LLRW) to WCS that, after being evaluated by WCS and ultimately determined to be exempt VLLW pursuant to TCEQ-approved criteria and procedures, can be disposed in WCSs RCRA cell in full compliance with federal and state laws and regulations.

Specifically,

- Federal law authorizes the State of Texas, as an NRC Agreement State, to license and regulate the disposal of Low-Level Radioactive Waste (LLRW) in Texas (AEA Section 274 Agreement - 1963, as amended in 1982).

- State law authorizes the TCEQ to license and regulate the receipt, processing, storage, and disposal of LLRW in Texas (THSC 401).

- The TCEQ has the legal authority to allow the disposal of exempt low activity radioactive waste at WCS RCRA facility (30 TAC 336.5).

- The TCEQ has authorized WCS to dispose of exempted radioactive waste in its RCRA facility through WCS Radioactive Material License (RML) R04100 (License Condition 192) and Hazardous Waste Permit HW-50358.

- The NRC regularly reviews Texas Agreement State program under IMPEP and has determined that the Texas program is satisfactory.

- In the WCS VLLW process, transfer of LLRW from an NRC-licensed nuclear power reactor is shipped as licensed waste on NRC Forms 540/541, to an Agreement State radioactive materials licensee (RML) - WCS.

- Shipping and receipt of the licensed LLRW occurs before the waste is evaluated for exemption at WCS pursuant to TCEQ requirements. Therefore, the utility is not exempting waste itself or shipping exempt waste to WCS.

- The licensed LLRW is evaluated by WCS, and those wastes satisfying the TCEQ-approved exemption criteria under our RML (LC 192) are disposed as VLLW in the RCRA facility.

Additionally, states are not required under Agreement State Compatibility criteria to adopt a Section 20.2002 equivalent rule, and Texas has not done so. As a result, WCS must perform analytical measurements and/or radiation surveys to confirm that the waste meets the specific exemption criteria and standards in TCEQ RML 04100.

Therefore, it is our understanding and conclusion that RIS 2016-11 is not applicable to the exemption structure at the WCS facility, as any transfer of radioactive waste is accomplished before the waste is processed and evaluated for exemption. Thus, a utility need not obtain any NRC approval under 10 CFR 20.2002, because the exemption occurs separate from the transfer and acceptance of the waste for disposal. I respectfully request that the NRC confirm its agreement with this understanding of RIS 2016-11 in your response to this letter.

(Page 60 of Total)

USCA Case #19-1240 Document #1827780 Filed: 02/10/2020 Page 3 of 3 We are always pleased to work with the NRC to enhance regulatory stability; promote efficiency for the licensees, Agreement States, and the NRC; and most importantly to ensure continued efficient disposal activities with a high degree of safety.

Sincerely, David Carlson President & COO Waste Control Specialists Cc: Electronic Copy Only Steven West, Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs Catherine Haney, Assistant for Operations, Office of the Executive Director for Operations (Page 61 of Total)

USCA Case #19-1240 Document #1827780 Filed: 02/10/2020 Page 1 of 3

Title:

Public meeting regarding comments on the NRCs Regulatory Issue Summary (RIS) 2016-11, Requests to Dispose of Very Low-Level Radioactive Waste Pursuant to 10 CFR 20.2002.

Date(s) and Time(s): September 06, 2019, 10:00 AM to 12:00 PM Location: NRC Two White Flint North, T6-D2 11545 Rockville Pike Rockville, MD Category: This is a Category 2 meeting. The public is invited to participate in this meeting by discussing regulatory issues with the Nuclear Regulatory Commission (NRC) at designated points identified on the agenda.

Purpose:

To discuss the NRCs proposed path forward to address concerns regarding RIS 2016-11 with the Nuclear Energy Institute, EnergySolutions, LLC, Waste Control Specialists LLC, South Texas Project Nuclear Operating Company and Agreement States.

Contact:

Stephen Dembek 301-415-2342 Stephen.Dembek@nrc.gov

Participants:

NRC External Office of Nuclear Material Safety and EnergySolutions Safeguards Nuclear Energy Institute (NEI)

Waste Control Specialists LLC Agreement State South Texas Project Nuclear Operating Company (STPNOC)

Comments: Interested members of the public can listen to the entire meeting and participate in this meeting at certain points via teleconference. Please call the Bridgeline at 1-888-989-0729 and use passcode 7955844.

(Page 62 of Total)

USCA Case #19-1240 Document #1827780 Filed: 02/10/2020 Page 2 of 3

PUBLIC MEETING AGENDA

Public meeting regarding comments on the NRCs Regulatory Issue Summary (RIS) 2016-11, Requests to Dispose of Very Low-Level Radioactive Waste Pursuant to 10 CFR 20.2002.

September 06, 2019, 10:00 AM to 12:00 PM NRC Two White Flint North, T6-D2 11545 Rockville Pike Rockville, MD (Page 63 of Total)

USCA Case #19-1240 Document #1827780 Filed: 02/10/2020 Page 3 of 3 The time of the meeting is local to the jurisdiction where the meeting is being held.

The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If reasonable accommodation is needed to participate in this meeting, or if a meeting notice, transcript, or other information from this meeting is needed in another format (e.g., Braille, large print), please notify the NRC meeting contact.

Determinations on requests for reasonable accommodation will be made on a case-by-case basis.

ADAMS Accession Number: ML19247B399 OFFICIAL RECORD COPY Link to meeting details: https://www.nrc.gov/pmns/mtg?do=details&Code=20190883 Commission's Policy Statement on "Enhancing Public Participation in NRC Meetings" 67 Federal Register 36920, May 28, 2002 The policy statement may be found on the NRC website http://www.nrc.gov/reading-rm/doc-collections/commission/policy/67fr36920.html (Page 64 of Total)