ML20072L312
| ML20072L312 | |
| Person / Time | |
|---|---|
| Site: | Nuclear Energy Institute |
| Issue date: | 03/11/2020 |
| From: | Bonanno J, Croley S, Ginsberg E, Rund J Latham & Watkins, Nuclear Energy Institute |
| To: | Andrew Averbach NRC/OGC, US Federal Judiciary, Court of Appeals, for the District of Columbia Circuit |
| References | |
| 1833123, 19-1240 | |
| Download: ML20072L312 (61) | |
Text
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 PETITIONERS OPPOSITION TO RESPONDENTS MOTION TO DISMISS STEVEN P. CROLEY ELLEN C. GINSBERG LATHAM & WATKINS LLP JERRY BONANNO 555 Eleventh Street, NW JONATHAN M. RUND Suite 1000 NUCLEAR ENERGY INSTITUTE Washington, DC 20004-1304 1201 F Street, NW (202) 637-2200 Suite 1100 steven.croley@lw.com Washington, DC 20004 (202) 739-8144 ecg@nei.org jxb@nei.org jmr@nei.org Counsel for Petitioner USCA Case #19-1240 Document #1833123 Filed: 03/11/2020 Page 1 of 33 (Page 1 of Total)
i TABLE OF CONTENTS Page TABLE OF AUTHORITIES.................................................................................... ii GLOSSARY............................................................................................................... v INTRODUCTION..................................................................................................... 1 FACTUAL BACKGROUND.................................................................................... 3 A.
Regulatory Authority Over Low-Level Waste Disposal....................... 3 B.
NRC Begins Shifting Position In 2016................................................. 4 C.
NRC Seeks To Apply The Issue Summary Retroactively.................... 7 ARGUMENT............................................................................................................. 9 I.
THE 2019 LETTER CONSTITUTES FINAL AGENCY ACTION.............. 9 A.
Direct And Appreciable Legal Consequences Flow From The 2019 Letter.......................................................................................... 11
- 1.
The 2019 Letter imposes new obligations on NRC licensees.................................................................................... 11
- 2.
The 2019 Letter does not restate a prior NRC position............ 13 (a)
The 2012 Agreement States letter did not alter the Information Notice......................................................... 14 (b)
The Issue Summary did not create legal consequences.................................................................. 15 (c)
Independent Equipment Dealers is inapposite............... 18 B.
The 2019 Letter Is Neither Tentative Nor Interlocutory..................... 20 CONCLUSION........................................................................................................ 22 CERTIFICATE OF COMPLIANCE WITH FEDERAL RULE OF APPELLATE PROCEDURE 27(D)............................................................. 23 USCA Case #19-1240 Document #1833123 Filed: 03/11/2020 Page 2 of 33 (Page 2 of Total)
ii TABLE OF AUTHORITIES Page(s)
CASES Adenariwo v. Fed. Mar. Commn, 808 F.3d 74 (D.C. Cir. 2015).............................................................................. 10 Appalachian Power Co. v. EPA, 208 F.3d 1015 (D.C. Cir. 2005)........................................................ 11, 12, 14, 20 Barrick Goldstrike Mines Inc. v. Browner, 215 F.3d 45 (D.C. Cir. 2000)..................................................2, 11, 12, 14, 20, 21 Bennett v. Spear, 520 U.S. 154 (1997)............................................................................................ 10 California Cmtys. Against Toxics v. EPA, 934 F.3d 627 (D.C. Cir. 2019)............................................................................ 11 Ciba-Geigy Corp. v. EPA, 801 F.2d 430 (D.C. Cir. 1986)........................................................................ 2, 20 City of Dania Beach v. FAA, 485 F.3d 1181 (D.C. Cir. 2007).......................................................................... 21 CropLife America v. EPA, 329 F.3d 876 (2003)............................................................................................ 21 CSI Aviation Servs., Inc. v. Dept of Transp.,
637 F.3d 408 (D.C. Cir. 2011)............................................................................ 13 Dominion Res. v. FERC, 286 F.3d 586 (D.C. Cir. 2002)............................................................................ 16 Her Majesty the Queen in Right of Ontario v. EPA, 912 F.2d 1525 (D.C. Cir. 1990).......................................................................... 21 Honicker v. NRC, 590 F.2d 1207 (D.C. Cir. 1978).......................................................................... 10 USCA Case #19-1240 Document #1833123 Filed: 03/11/2020 Page 3 of 33 (Page 3 of Total)
iii Indep. Equipment Dealers Assn v. EPA, 372 F.3d 420 (D.C. Cir. 2004)...................................................................... 18, 19 NRDC v. NRC, 666 F.2d 595 (D.C. Cir. 1981)............................................................................ 16 NRDC v. NRC, 680 F.2d 810 (D.C. Cir. 1982)............................................................................ 10 RCA Global Comms. v. FCC, 758 F.2d 722 (D.C. Cir. 1985)............................................................................ 16 Rhea Lana, Inc. v. Dept of Labor, 824 F.3d 1023 (D.C. Cir. 2016).......................................................................... 13 Sackett v. EPA, 566 U.S. 120 (2012)...................................................................................... 11, 12 U.S. Army Corps of Engineers v. Hawkes Co.,
136 S. Ct. 1807 (2016)........................................................................................ 11 Valero Energy Corp. v. EPA, 927 F.3d 532 (D.C. Cir. 2019)............................................................................ 11 STATUTES 42 U.S.C. § 2021(b)................................................................................................... 4 42 U.S.C. § 2021(c)................................................................................................... 5 42 U.S.C. § 2021(c)(1)............................................................................................. 18 42 U.S.C. § 2273(a)................................................................................................. 13 42 U.S.C. § 2273(c)................................................................................................. 13 42 U.S.C. § 5871........................................................................................................ 5 REGULATIONS 10 C.F.R. § 20.302..................................................................................................... 4 USCA Case #19-1240 Document #1833123 Filed: 03/11/2020 Page 4 of 33 (Page 4 of Total)
iv 10 C.F.R. § 20.2002............................................................................... 3, 4, 5, 7, 8, 9 10 C.F.R. § 50.109(a)................................................................................................. 6 10 C.F.R. § 50.109(a)(3), (c)..................................................................................... 6 10 C.F.R. § 61.2......................................................................................................... 3 10 C.F.R. § 150.10............................................................................................... 4, 18 10 C.F.R. § 150.15......................................................................................... 4, 5, 7, 9 10 C.F.R. § 150.15(a)................................................................................................. 5 27 Fed. Reg. 1351 (Feb. 14, 1962).......................................................................... 18 56 Fed. Reg. 23,360 (May 21, 1991)......................................................................... 4 OTHER AUTHORITIES https://www.nrc.gov/reading-rm/doc-collections/gen-comm/reg-issues/.................................................................................................................... 5 https://www.nrc.gov/waste/llw-disposal/very-llw.html............................................. 3 https://www.nrc.gov/waste/low-level-waste.html..................................................... 3 USCA Case #19-1240 Document #1833123 Filed: 03/11/2020 Page 5 of 33 (Page 5 of Total)
v GLOSSARY AEA Atomic Energy Act APA Administrative Procedure Act EPA Environmental Protection Agency NEI Nuclear Energy Institute NRC Nuclear Regulatory Commission VLLW Very Low-Level Waste USCA Case #19-1240 Document #1833123 Filed: 03/11/2020 Page 6 of 33 (Page 6 of Total)
1 INTRODUCTION Petitioner Nuclear Energy Institute (NEI) challenges a final decision of the Nuclear Regulatory Commission (NRC) reinterpreting provisions of the Atomic Energy Act (AEA) and its implementing regulations that allocate regulatory oversight over the disposal of low-level nuclear waste between the agency and many states. NEI brought this petition shortly after NRC first articulated in a September 16, 2019 letter (2019 Letter) the full reach and retrospective application of its reinterpretation of the law. The 2019 Letter concluded three years of poor agency process that lacked the clarity and transparency required by the AEA and Administrative Procedure Act (APA). The decision articulated in that letter is neither tentative nor interlocutory, and creates significant legal consequences for the industry. It is therefore final action subject to judicial review.
In the 2019 Letter, NRC gave new legal effect to Regulatory Issue Summary 2016-11 (Issue Summary), which concludedwithout notice and comment, and without explanationthat NRCs decades-old interpretation of AEA regulations allowing for state jurisdiction over disposal of very low-level radioactive waste (VLLW) was contrary to the AEA. When first issued, the Issue Summary, an informational document, had no legal consequences for NRC licensees with existing state approvals for VLLW disposal. The Issue Summary stated it was strictly voluntary, require[d] no action or written response from licensees, and did not USCA Case #19-1240 Document #1833123 Filed: 03/11/2020 Page 7 of 33 (Page 7 of Total)
2 represent a departure from current regulatory requirements and practice. Govt Ex.
4 at 1, 3. The industry thus reasonably understood the Issue Summary not to disturb existing state disposal approvals. However, three years later, NRC stated in the 2019 Letter that compliance with this new interpretation now governed all NRC licensees retrospectively, including those with existing state approvals. Thus, NRC rendered then-compliant licensees out of compliance with regulations, stating it would consider enforcement discretion for those with existing approvals, but only on a case-by case basis. See Govt Ex. 1 at 1.
The agency substituted this letter for what, under the AEA and APA, should have been a robust administrative process involving stakeholder input and a published decision. NRC now seeks to dismiss NEIs petition for review, claiming that the informal mode in which it chose to express its final position immunizes that position from judicial review. See MTD 1-2. NRC is mistaken. See Barrick Goldstrike Mines Inc. v. Browner, 215 F.3d 45, 50 (D.C. Cir. 2000) (final action at issue consists of a series of steps taken by [the agency] culminating in a letter from an [agency] official stating the agencys position) (citation omitted); Ciba-Geigy Corp. v. EPA, 801 F.2d 430, 436-37 & nn.7-9 (D.C. Cir. 1986) (final agency action can be expressed in a letter that is responsive to industry or result from a series of agency pronouncements rather than a single edict). For the reasons explained below, the motion to dismiss should be denied.
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3 FACTUAL BACKGROUND A.
Regulatory Authority Over Low-Level Waste Disposal Nuclear power plant operations generate certain wastes. Low-level waste may be disposed of in land disposal facilities licensed by NRC or under equivalent state regulations.1 Low-level waste commonly includes nuclear power plant equipmentranging from reactor parts to everyday toolscontaminated with or containing low levels of radioactive material.2 Very low-level waste (VLLW) is a term used to describe the lowest end of the low-level waste spectrum.3 VLLW can be safely disposed of in municipal landfills or hazardous waste disposal facilities, rather than facilities licensed by NRC to handle radioactive material.4 Entities licensed by NRC to operate nuclear power reactors (NRC licensees) must seek agency approval to dispose of VLLW at facilities not licensed to handle radioactive material. See 10 C.F.R. § 20.2002. But where NRC has entered into agreements with states (Agreement States) to assume some of NRCs regulatory authorityincluding authority over the VLLW 1 See
- NRC, Low Level
- Waste, https://www.nrc.gov/waste/low-level-waste.html; see also 10 C.F.R. § 61.2.
2 See supra note 1.
3 See NRC, Very Low Level Waste, https://www.nrc.gov/waste/llw-disposal/very-llw.html.
4 See supra note 2.
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4 disposalthen states shall have authority to regulate the materials covered by the agreement. 42 U.S.C. § 2021(b); see also 10 C.F.R. § 150.10.
For decades, NRC interpreted 10 C.F.R. §§ 150.10 and 150.15 to provide for Agreement State jurisdiction over VLLW disposal. So, instead of seeking NRCs approval to dispose of VLLW under 10 C.F.R. § 20.2002, NRC licensees located in Agreement States sought state approval. NRC first articulated this interpretation in a 1985 legal opinion (NEI Ex. 1). That opinion concluded that NRC retained jurisdiction over handling and storage of low-level waste at the reactor site under 10 C.F.R. § 150.15, but delegated authority over waste disposal to Agreement States.
NEI Ex. 1 at 1-3. NRC informed licensees of this interpretation in Information Notice 1986-90 (Information Notice), which explained that in Agreement States, NRC approval is not necessary for VLLW disposal. Govt Ex. 2 at 1. Rather,
[s]uch approval is within the jurisdiction of the Agreement State[s]. Id. In contrast, [f]or disposal of [VLLW] in States that are not Agreement States... NRC approval is required under 10 C.F.R. § 20.2002.5 B.
NRC Begins Shifting Position In 2016 Accordingly, for the next three decades, NRC licensees in Agreement States sought approval from Agreement States, not NRC, to dispose of VLLW. In 2016, 5 Id. 10 C.F.R. § 20.2002 replaced 10 C.F.R. § 20.302 in 1991. See 56 Fed. Reg.
23,360, 23,403-04 (May 21, 1991); Govt Ex. 4 at 1 n.1.
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5 however, something changed, the full scope of which was not finally decided until September 2019.
In the 2016 Issue Summary,6 the agency first asserted, with no legal or policy justification, much less opportunity for public comment, that the Information Notice 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. Govt Ex. 4 at 1. The Issue Summary provided 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. Id. at
- 2. The Issue Summary provided no discussion of the jurisdictional issues discussed in the 1985 legal opinion, see NEI Ex. 1 at 1-3, and offered no alternative interpretations of the AEAs relinquishment provisions or 10 C.F.R. § 150.15 to justify its conclusion. Govt Ex. 4 at 1-3; see also 42 U.S.C. §§ 5871, 2021(c); 10 C.F.R. § 150.15(a).
Despite these flaws, the Issue Summary on its face imposed no direct legal consequences on licensees with existing state approvals. It did not state that 6 Regulatory Issue Summaries communicate and clarify NRC technical or policy positions on regulatory matters. See NRC, Regulatory Issue Summaries, https://www.nrc.gov/reading-rm/doc-collections/gen-comm/reg-issues/. They do not substitute for notice and comment, hearings, or other processes required of fundamental changes in NRC law and policy.
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6 approvals already issued by Agreement States for VLLW disposal would be affected, or that generators who had secured these approvals could no longer rely on them. Instead, the Issue Summary stated it require[d] no action or written response from industry. Govt Ex. 4 at 3. Further, the Issue Summary was not published in the Federal Register because it is informational... [and] does not represent a departure from current regulatory requirements and practice. Id. at 3 (emphasis added).
Importantly, NRC concluded the Issue Summary did not impose a backfit.
Id. Backfitting occurs when NRC adopts new or amended regulations or imposes new or different interpretations of regulations on reactor licensees. 10 C.F.R.
§ 50.109(a). The associated backfitting analysis considers the benefits and costs resulting from imposition of new or amended regulations or new or different interpretations. 10 C.F.R. § 50.109(a)(3), (c). This analysis is used to determine whether such changes can justifiably be imposed on licensees. Id.
By stating the Issue Summary did not impose a backfit, NRC further communicated to industry that the Issue Summary did not alter the regulatory status quo regarding existing Agreement State approvals for VLLW disposal. Govt Ex. 4 at 3. Industry took NRCs plain statements at face value and continued to rely on existing approvals. See, e.g., NEI Ex. 2, Aug. 14, 2018 Ltr. from South Texas to NRC, at 2.
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7 C.
NRC Seeks To Apply The Issue Summary Retroactively In 2018, contrary to the Issue Summarys statements that no action was required and that the Issue Summary did not depart from current regulatory requirements and practice, Govt Ex. 4 at 1, 3, NRC abruptly sought to enforce a new interpretation of § 150.15 and § 20.2002 against an NEI member, STP Nuclear Operating Company (South Texas), which had a longstanding state approval for VLLW disposal. South Texas was informed during a routine safety inspection that NRC was considering issuing a minor violation, because, although South Texas had a continuing approval from the State of Texas, it did not also have a separate NRC approval. See NEI Ex. 2 at 1.
South Texas promptly sought clarification from NRC, pointing out that Texas is an Agreement State and that South Texas had state approval to dispose of VLLW.
Id. at 1-2. South Texas noted its understanding that the violation would be based on the Issue Summary, even though the Issue Summary required no action or written response from licensees and is not a backfit. Id. at 2. Accordingly, South Texas rightly noted its disposal activities were already appropriately authorized, and that enforcement would be [c]ontrary to the express language in [the Issue Summary].
Id. at 2-3. In response, NRC took the position that its approval was required for VLLW disposal. Nevertheless, it conceded that South Texas had raised issues USCA Case #19-1240 Document #1833123 Filed: 03/11/2020 Page 13 of 33 (Page 13 of Total)
8 associated with the [Issue Summary] and with prior guidance, and stated NRC is evaluating the issue generically to provide further clarity. Govt Ex. 5 at 2.
In the wake of this development, NEI and others sought clarification of NRCs position and challenged any suggestion that the Issue Summary applied retroactively to undo previous Agreement State approvals. NEI highlighted the Issue Summarys statement that it was strictly voluntary and imposed no backfit. Govt Ex. 6 at 9-
- 10. Responding to stakeholder comments, NRC held a public meeting on September 6, 2019, attended by industry and Agreement State representatives, to address concerns about the Issue Summary and discuss a path forward, including a possible update to the Issue Summary. See NEI Ex. 3, Public Meeting Summary at 1-2; see also NEI Ex. 4, Aug. 21, 2019 Notification of Public Meeting (addressed to Agreement States); NEI Ex. 5, List of Meeting Attendees. At the meetings end, NRC indicated it would issue the response letters by the end of September. NEI Ex. 3 at 3.
It did so. NRCs September 16, 2019 response to NEI did not merely reiterate the position taken in the Issue Summary, however. Rather, it drastically changed the scope and legal effect of what was issued as an informational document. NRC stated it had reviewed the information [NEI] provided and the history of this issue and determined that [the Issue Summary] correctly stated that any licensees request for approval to dispose of licensed material [under 10 C.F.R. § 20.2002] must be USCA Case #19-1240 Document #1833123 Filed: 03/11/2020 Page 14 of 33 (Page 14 of Total)
9 submitted to the regulatory authority that issued the license for use of the radioactive material. Govt Ex. 1 at 1. NRC also expressed a brand new legal theory for this regulatory change, concludingcontrary to its decades-old interpretation of the AEA and the Part 150 regulationsthat this requirement is based on the NRCs jurisdiction over the operation of nuclear power plants, which cannot be delegated to an Agreement State. Id. The agency offered no citation or analysis to support its puzzling new position that VLLW disposal is now considered part of the operation of nuclear power plants. Id. The agency stated, contrary to the language of the Issue Summary, that compliance with its new interpretation of 10 C.F.R.
§§ 20.2002 and 150.15 was an enforcement matter after all. For licensees that had relied on Agreement State approvals in the past in lieu of an NRC 10 C.F.R. § 20.2002 approval, NRC said it would consider enforcement discretion, but only on a case-by-case basis. Id. This was a new, clear-throated expression by the agency, found only in its 2019 Letter. It was the culmination of the agencys consideration of the issue, but followed no rulemaking or other established process.
NEI therefore timely petitioned for judicial review.
ARGUMENT I.
THE 2019 LETTER CONSTITUTES FINAL AGENCY ACTION An agency action is final for Hobbs Act review where it imposes an obligation, denies a right, or fixes some legal relationship, usually at the USCA Case #19-1240 Document #1833123 Filed: 03/11/2020 Page 15 of 33 (Page 15 of Total)
10 consummation of an administrative process. Adenariwo v. Fed. Mar. Commn, 808 F.3d 74, 78 (D.C. Cir. 2015) (quoting NRDC v. NRC, 680 F.2d 810, 815 (D.C. Cir.
1982)); Honicker v. NRC, 590 F.2d 1207, 1209 (D.C. Cir. 1978). Under the Supreme Courts decision in Bennett v. Spear, an order is considered final if the action: (1) mark[s] the consummation of the agencys decision-making process and is not merely tentative or interlocutory in nature; and (2) is one by which rights or obligations have been determined, or from which legal consequences flow. 520 U.S. 154, 177-78 (1997).
NRC does not dispute the 2019 Letter is neither tentative nor interlocutory.
See MTD 11-14. Rather, the agency principally argues the 2019 Letter does not have legal consequences, and merely reiterates the position taken in the Issue Summary. Id. at 13. NRC is wrong on both counts. The 2019 Letter does not merely restate the Issue Summary; it marks the first time NRC stated unequivocally that compliance with the new VLLW disposal requirement is mandatory for all NRC licensees, regardless of whether they have existing state approvals, and that such licensees are now subject to enforcement action for relying on those existing approvals. That is, the 2019 Letter articulates a final, definitive position that has significant legal and practical consequences for the regulated industry. As detailed below, the 2019 Letter satisfies both prongs of the Bennett test and constitutes a final agency decision.
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11 A.
Direct And Appreciable Legal Consequences Flow From The 2019 Letter Whether an agency action has direct and appreciable legal consequences is a pragmatic inquiry. U.S. Army Corps of Engineers v. Hawkes Co., 136 S. Ct.
1807, 1814-15 (2016). Courts must consider the concrete consequences an agency action has or does not have as a result of the specific statutes and regulations that govern it. California Cmtys. Against Toxics v. EPA, 934 F.3d 627, 637 (D.C. Cir.
2019). Agency action has a reviewable legal effect if it creates requirements that states or industry must follow, Appalachian Power Co. v. EPA, 208 F.3d 1015, 1023 (D.C. Cir. 2005), exposes regulated parties to the possibility of an enforcement action, enhanced fines or penalties, Sackett v. EPA, 566 U.S. 120, 126 (2012);
Barrick Goldstrike Mines, 215 F.3d at 50, or has a practical effect on regulated parties even if it has no formal legal force, Valero Energy Corp. v. EPA, 927 F.3d 532, 537 (D.C. Cir. 2019). Here, the new position NRC took in the 2019 Letter has potentially significant legal and practical consequences for NRC licensees in Agreement States.
- 1.
The 2019 Letter imposes new obligations on NRC licensees NRCs 2019 Letter imposed new requirements with respect to disposal approvals that industry must now follow, contrary to the express language in the Issue Summary that no action is required because the Issue Summary does not represent a departure from current regulatory requirements and practice. See Govt USCA Case #19-1240 Document #1833123 Filed: 03/11/2020 Page 17 of 33 (Page 17 of Total)
12 Ex. 4 at 3; Appalachian Power Co., 208 F.3d at 1023 (guidance document constituted final agency action because [i]t commands, it requires, it orders, it dictates). Under NRCs previous interpretation of the AEA and its implementing regulations, NRC licensees in Agreement States only needed to seek VLLW disposal approval from the relevant Agreement State. Now licensees must apply to NRC for VLLW disposal, even where they already have existing Agreement State approval.
Govt Ex. 1 at 1.
The legal effect of this newly mandatory requirement is further evident from NRCs statement in the 2019 Letter that it will consider exercising enforcement discretion for those who have relied on Agreement State approval in the past, but only on a case-by-case basis. Id. Enforcement discretion is cold comfort; such discretion is only necessary where there is a legal violation. This statement suggests there are cases in which enforcement discretion will not be exercised, concretizing the legal consequences of NRCs conclusion that licenseeseven those with pre-existing state approvalsare now obligated to obtain NRC approval for VLLW disposal, or else face NRC enforcement action. See Barrick Goldstrike Mines, 215 F.3d at 50 (legal consequences flow from the position expressed because the regulated party must now keep records and report to [the agency] unless it wishes to risk an enforcement action); see also Sackett, 566 U.S. at 126 (order had legal effect where it exposed regulated parties to the possibility of an enforcement action USCA Case #19-1240 Document #1833123 Filed: 03/11/2020 Page 18 of 33 (Page 18 of Total)
13 and enhanced fines or penalties); Rhea Lana, Inc. v. Dep't of Labor, 824 F.3d 1023, 1026 (D.C. Cir. 2016) (letter notifying petitioner of non-compliance constituted final agency action, because although the letter merely restated the petitioners existing legal obligations, the notice potentially subjected the petitioner to enhanced penalties in the event of an enforcement action).
The practical consequences of NRCs reinterpretation warrant emphasis. The conclusion that NRC licensees must seek NRC approval before disposing of VLLW has important implications for NEIs memberswith respect to, for example, their internal compliance protocols and potential liability. See CSI Aviation Servs., Inc.
- v. Dept of Transp., 637 F.3d 408, 412 (D.C. Cir. 2011) (agency action was final where it imposed an immediate and significant burden). Thus, far from being a routine, informational letter as NRC claims (at 12), the 2019 Letter in fact creates significant legal and practical consequences for NRC licensees deemed to be out of compliance. See, e.g., 42 U.S.C. § 2273(a), (c) (AEA civil and criminal penalties).
Moreover, these obligations are newthe 2019 Letter did not simply reiterate existing legal obligations.
- 2.
The 2019 Letter does not restate a prior NRC position NRCs contention (at 5-9, 12-13) that the 2019 Letter merely restates a policy position NRC has taken since 2012, and therefore creates no new legal consequences, is incorrect and rewrites the relevant regulatory history. The final USCA Case #19-1240 Document #1833123 Filed: 03/11/2020 Page 19 of 33 (Page 19 of Total)
14 action at issue in this case consists of a series of steps taken by [NRC] culminating in a letter from an [NRC] official stating the agencys position. Barrick Goldstrike Mines, 215 F.3d at 50 (preamble, guidance document, and enforcement letter together could crystallize an agency position into final agency action). Until the 2019 Letter, NRCs policy related to VLLW disposal had not settled, and therefore the legal effect challenged here did not exist before the 2019 Letter fully and clearly communicated the agencys position to the regulated industry. Cf. Appalachian Power Co., 208 F.3d at 1023 (guidance document constituted final agency action because it reflect[s] a settled agency position which has legal consequences both for State agencies administering their permit programs and for [those like]
petitioners who must obtain Title V permits in order to continue operating.).
(a)
The 2012 Agreement States letter did not alter the Information Notice NRC claims (at 6-7, 12-13) it initially articulated this new policy regarding approval requirements in a 2012 letter sent to Agreement States. But this letter addresses from whom disposal facilitiesnot waste generatorsmust seek approval to accept waste, based on the disposal facilitys geographic location. See Govt Ex. 3 at 1. The letter was not sent to NRC licensees, nor was it published in the Federal Register. It did not change the policy for approval requirements articulated in the Information Notice at all; it simply clarified who must do what in multi-state situations. Like the Issue Summary, the 2012 letter did not include a USCA Case #19-1240 Document #1833123 Filed: 03/11/2020 Page 20 of 33 (Page 20 of Total)
15 backfitting analysis, indicating no change in policy or procedure was required from NRC licensees. It makes no reference to the Information Noticethe document NRC now claims this letter supposedly superseded. See id. at 1-3. Presumably, had NRC intended to reverse the policy in the Information Notice, it would have mentioned that document in the 2012 Agreement States letter. NRCs claim that the 2012 Agreement States letter communicated the policy sea-change articulated in the 2019 Letter is absurd on the merits, though the argument underscores that NRC believes it can change policy by letter.
(b)
The Issue Summary did not create legal consequences NRCs claim that the 2019 Letter merely restates the policy articulated in the Issue Summary is similarly unavailing. While the 2016 Issue Summary first indicated that NRCs policy with respect to VLLW disposal may be changing because it disavowed the 1986 Information Notice, it also made several unequivocal statements that the policy required no action or written response. Govt Ex. 4 at 1, 3. The Issue Summary also stated no backfitting analysis was necessary. Id. at 3; see also supra at 6. Since multiple NRC licensees had standing authorizations from Agreement States to dispose of VLLW at the time of the Issue Summary, see, e.g.,
NEI Ex. 2 at 2 & Attachments 1-2, the backfitting rule would have been triggered if NRC were requiring licensees to change behavior. Given these existing approvals, the Issue Summary was understood, at most, to say NRC approval might be required USCA Case #19-1240 Document #1833123 Filed: 03/11/2020 Page 21 of 33 (Page 21 of Total)
16 to dispose of VLLW from new waste streams not covered by existing approvals and for new NRC licensees. But it did not say existing approvals were no longer legally valid. To the contrary, it said it did not represent a departure from current regulatory requirements and practice. Govt Ex. 4 at 3.
A reasonable observer therefore would not have perceived a very substantial risk that NRC might construe the Issue Summary to mean what NRC later specified in the 2019 Letter to NEI. See Dominion Res. v. FERC, 286 F.3d 586, 589 (D.C.
Cir. 2002). While participants in rulemaking may not later complain of the rules invalidity on grounds fully known to them at the time of [its] issuance, RCA Global Comms. v. FCC, 758 F.2d 722, 730 (D.C. Cir. 1985) (quoting NRDC v. NRC, 666 F.2d 595, 602-03 (D.C. Cir. 1981)), the Issue Summary stated compliance was voluntary and no action by licensees was necessary. Govt Ex. 4 at 3. Given NRCs backfitting rule and the disavowal of a change in regulatory requirements, it was reasonable for the regulated community to rely on that statement.
NRC acknowledged this problem when it recognized South Texas had raised generic issues with the Issue Summary following NRCs surprise enforcement attempt. Govt Ex. 5 at 2. NRC stated it was evaluating the issue generically to provide further clarity, and considering regulatory options to address this issue.
Id. Thereafter, NRC held a public meeting on September 6, 2019 to discuss NRCs proposed path forward to address concerns raised by South Texas, NEI, and others.
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17 NEI Ex. 3 at 2; see also Govt Ex. 9; NEI Ex. 4. A number of parties expressed confusion about the agencys apparent position that nuclear generators could no longer rely on approvals received from Agreement States, and NRC indicated it expected to issue response letters to those who had raised concerns by the end of September. NEI Ex. 3 at 2.
Shortly thereafter, NRC responded to NEI in the 2019 Letter using the present tense: We have reviewed the information you provided and the history of this issue and determined that [the Issue Summary] correctly stated that NRC licensees would need to seek approval to dispose of VLLW from NRC, or face enforcement action.
Govt Ex. 1 at 1. Critically, this was the first time that NRC clearly stated compliance with this revised interpretation of Agreement State authority and the relevant approval requirements was, in fact, an enforcement matter. Id. (indicating NRC would consider enforcement discretion for those who had previously relied on Agreement State approvals).
NRC also offered a new legal basis for this requirement, statingagain for the first timethat this requirement is based on NRCs jurisdiction over the operation of nuclear power plants, which cannot be delegated to an Agreement State. Id. But this interpretation is contrary to the position NRC has taken since 1962 on what authority it may and may not delegate under the AEA. While the AEA prohibits NRC from delegating authority over the construction and operation of USCA Case #19-1240 Document #1833123 Filed: 03/11/2020 Page 23 of 33 (Page 23 of Total)
18 nuclear power plants, see 42 U.S.C. § 2021(c)(1), NRC has never before interpreted the disposal of VLLW to constitute part of the operation of the plant. See Govt Ex. 2 (noting 10 C.F.R. § 150.10 delegates authority over disposal of low-level wastes to Agreement States); 27 Fed. Reg. 1351, 1351 (Feb. 14, 1962) (The states will have control over land burial of low level wastes.). This marks a dramatic change in NRCs interpretation of the AEA and its delegation authority.
In short, between issuance of the 2016 Issue Summary and the 2019 Letter, NRC considerably revised its position on the legal effect and basis of the Issue Summary, altering the relevant legal and regulatory landscape in a way the Issue Summary itself did not. Contrary to NRCs contention, therefore, that the 2019 Letter leaves the world just as it found it, the world in fact changed considerably when NRC belied its 2016 representation to industry that it was not departing from current regulatory requirements and practice. See MTD 13.
(c)
Independent Equipment Dealers is inapposite This case thus stands in sharp contrast to Independent Equipment Dealers, on which NRC relies. See MTD 12-14. In that case, this Court found unreviewable an Environmental Protection Agency (EPA) letter to a trade association that had written to confirm EPA agreed with the trade associations interpretation of existing regulations. Indep. Equipment Dealers Assn v. EPA, 372 F.3d 420, 424-25 (D.C.
Cir. 2004). EPA disagreed, citing long-standing policy, and the trade association USCA Case #19-1240 Document #1833123 Filed: 03/11/2020 Page 24 of 33 (Page 24 of Total)
19 filed a petition for review. Id. This Court found the EPA letter was the type of workaday advice letter that agencies prepare countless times per year in dealing with the regulated community which even the plaintiffs agreed would be an insufficient basis for jurisdiction unless it wrought regulatory change. Id. at 427. Because the EPA letter neither announced a new interpretation of the regulations nor effected a change in the regulations themselves, it did not constitute final agency action. Id. The fact that the agency could at some point enforce the interpretation of law repeated in the letter was not sufficient to make the letter itself final action where it otherwise imposed no new legal obligations. Id. at 427-28; see also MTD
- 21.
Not so here. Rather than restating information already included in the Issue Summary (or the wholly irrelevant Agreement States letter), the enforcement policy announced in the 2019 Letter directly conflicts with the plain language of the Issue Summary. Compare Govt Ex. 1 with Govt Ex. 4 at 3. Moreover, this announcement followed months of agency flip-flopping about the legal implications of the Issue Summary, and suggestions to industry in anticipation of NRCs public meeting that it understood the issues industry had raised in response to a threatened enforcement action against South Texas. See supra at 7-9. As NEI has explained, the 2019 Letter imposed new legal obligations on NRC licensees that were not USCA Case #19-1240 Document #1833123 Filed: 03/11/2020 Page 25 of 33 (Page 25 of Total)
20 articulated in the Issue Summary, unlike the letter in Independent Equipment Dealers. See supra at 11-18.
This case is thus much more akin to Appalachian Power Co. and Barrick Goldstrike Mines, in which the court found informal communications or guidance documents that imposed legal obligations or altered the agencys policy position could constitute final agency action. See Barrick Goldstrike Mines, 215 F.3d at 50; Appalachian Power Co., 208 F.3d at 1023; see also Ciba-Geigy Corp., 801 F.2d at 436-37 & nn.8-9 (challenge to EPA position taken in letter to petitioner was ripe, because it represented EPAs final position on the matter and had legal consequences). Accordingly, because the 2019 Letter altered the relevant regulatory regime and imposed new, mandatory obligations on NRC licensees, it satisfies the legal consequences prong of the Bennett test.
B.
The 2019 Letter Is Neither Tentative Nor Interlocutory NRC does not dispute that the decision articulated in the 2019 Letter is neither tentative nor interlocutory. See MTD 11-14. NRC makes much of the fact that this final decision was expressed in a letter responding to comments from NEI, but the fact that the letter was a response to inquiries [by Petitioner] did not preclude the agency from expressing a final position in that document. Ciba-Geigy Corp., 801 F.2d at 436-37 & nn.8-9; see also Barrick Goldstrike Mines, 215 F.3d at 48-49 (That the agency action is embodied in interpretative statements in a rulemaking USCA Case #19-1240 Document #1833123 Filed: 03/11/2020 Page 26 of 33 (Page 26 of Total)
21 preamble, in a guidance document, and in a letter from a branch chief is not disqualifying.); Her Majesty the Queen in Right of Ontario v. EPA, 912 F.2d 1525, 1531 (D.C. Cir. 1990) (letters of subordinate agency official at EPA constituted final agency action). Indeed, the 2019 Letter represents the first time that the agency has adopted an unequivocal [policy]. See CropLife America v. EPA, 329 F.3d 876, 884 (2003) (rejecting agencys argument that petitioners are time-barred because agency made similar, albeit equivocal, arguments in the past). To be clear, NRC should have provided more process when it opted to revise its position. But NRC cannot now use the fact that its change of position culminated in a mere letter to avoid judicial challenge.
Nothing in the 2019 Letter suggests NRCs position, as expressed in the letter, is tentative, open to further consideration, or conditional on future agency action. City of Dania Beach v. FAA, 485 F.3d 1181, 1188 (D.C. Cir. 2007); see also Barrick Goldstrike Mines, 215 F.3d at 50 (The March letter is firm and conclusive, as is the 1999 Guidance. Both state what must be done to comply... ).
Nor does NRC claim this position is anything but final and conclusive. The 2019 Letter therefore satisfies both prongs of the Bennett test. Because the decision articulated in the 2019 Letter imposes new legal obligations on NRC licensees, and is not tentative, the 2019 Letter represents final agency action.
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22 While NRC claims (at 14) that finding finality here would quickly muzzle any informal communications between agencies and their regulated communities
... that are vital to the smooth operation of both government and business, that is not the danger presented in this case. Rather, a finding that this letter is unreviewable would encourage agencies to avoid transparency by routinely hiding seismic policy changes in informal documents that circumvent the rulemaking requirements of the APA, and would sanction haphazard decision making, contrary to the deliberate, well-reasoned administrative process required by federal law. This Court should not permit such a result.
CONCLUSION For the foregoing reasons, the motion to dismiss should be denied.
Dated: March 11, 2020 Respectfully submitted,
/s/ Steven P. Croley Steven P. Croley LATHAM & WATKINS LLP 555 Eleventh Street, NW Suite 1000 Washington, DC 20004-1304 (202) 637-2200 steven.croley@lw.com Counsel for Petitioner USCA Case #19-1240 Document #1833123 Filed: 03/11/2020 Page 28 of 33 (Page 28 of Total)
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 5,130 words, excluding the parts of the filing exempted under Fed. R. App. P. 32(f), according to the count of Microsoft Word.
/s/ Steven P. Croley Steven P. Croley Counsel for Petitioner USCA Case #19-1240 Document #1833123 Filed: 03/11/2020 Page 29 of 33 (Page 29 of Total)
ADDENDUM Pursuant to Circuit Rule 27(a)(4)
USCA Case #19-1240 Document #1833123 Filed: 03/11/2020 Page 30 of 33 (Page 30 of Total)
PETITIONER NUCLEAR ENERGY INSTITUTES CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES Pursuant to D.C. Circuit Rule 28(a)(1), counsel for Petitioner states as follows:
A. Parties and Amici Petitioner: Nuclear Energy Institute (NEI), on behalf of its members.
Respondents: United States Nuclear Regulatory Commission (NRC) and the United States of America.
There are no intervenors or amici in this case to date.
B. Ruling Under Review Petitioner seeks review of NRCs adherence to and substantive and material alteration of Regulatory Issue Summary 2016-11 (RIS 2016-11) without notice, as expressed in NRCs September 16, 2019 letter to NEI. NRCs September 16, 2019 letter indicates that NRC intends to rely on RIS 2016-11 as a basis for enforcement actions going forward.
C. Related Cases This case was not previously before this Court or any other court. NEI is not aware of any other related cases.
USCA Case #19-1240 Document #1833123 Filed: 03/11/2020 Page 31 of 33 (Page 31 of Total)
Dated: March 11, 2020 Respectfully submitted,
/s/ Steven P. Croley Steven P. Croley LATHAM & WATKINS LLP 555 Eleventh Street, NW Suite 1000 Washington, DC 20004-1304 (202) 637-2200 steven.croley@lw.com Counsel for Petitioner USCA Case #19-1240 Document #1833123 Filed: 03/11/2020 Page 32 of 33 (Page 32 of Total)
RULE 26.1 DISCLOSURE STATEMENT NEI submits this disclosure statement as required by Rule 26.1 of the Federal Rules of Appellate Procedure, and D.C. Circuit Rule 26.1. NEI is a nonprofit organization founded in 1994 and incorporated in the District of Columbia. NEI is a trade association as that term is defined in Circuit Rule 26.1(b). NEI has no parent company, and no publicly held company has any ownership interest in NEI.
NEI represents the policy interests of its members in the nuclear power industry, including nuclear power plants, reactor designers and advanced technology companies, architect and engineering firms, fuel supplies and service companies, consulting services and manufacturing companies, companies involved in nuclear medicine and nuclear industrial applications, radionuclide and radiopharmaceutical companies, universities and research laboratories, law firms, labor unions and international electric utilities.
Dated: March 11, 2020 Respectfully submitted,
/s/ Steven P. Croley Steven P. Croley LATHAM & WATKINS LLP 555 Eleventh Street, NW Suite 1000 Washington, DC 20004-1304 (202) 637-2200 steven.croley@lw.com Counsel for Petitioner USCA Case #19-1240 Document #1833123 Filed: 03/11/2020 Page 33 of 33 (Page 33 of Total)
NEI EXHIBIT 1 USCA Case #19-1240 Document #1833123 Filed: 03/11/2020 Page 1 of 5 (Page 34 of Total)
97 RECORD #97 TITLE:
Jurisdiction Over Low Level Waste Management at Reactor Sites in Agreement States FICHE:
68079-350
ýi 97 USCA Case #19-1240 Document #1833123 Filed: 03/11/2020 Page 2 of 5 (Page 35 of Total)
NUCLEA..R"-UNITED STATES NUCLEAR REGULATORY COMMISSION StS SEP13 1985 o
S /I I r*Fc;A:;XuM FOP:
HMrcld R. Denton, Director Office of Nuclear Reactor Regulation Guy F. Cunningham, I111 Fxecutive Legal Director
!'t: 1SPICTION OVER LOW LEVEL WASTE MANAGEMENT AT REACTOR SITES IN ACFEEMENT STATES 3t,'gur menorar-duir of August 7, 1385, you requested OELD confirmation of ycur uncerstandinr of KPC jurisdiction over the handling, treatment (including lilLineration) and storage of low level radioactive waste at nuclear reactor sites.
As stated in your memorandum, in Agreement States the KRC would exercise licensing and regulatory Jurisdiction over the handling and storage of lov. level waste within the exclusion area of the reactor site.
This ii-c l uees bctt reactor generated waste and waste fron other sources.
The letter sltLttiOn is covered in greater detail in Generic Letter 85-14.
In ren-AgreEcIttt States there is no jurisdictional.problem; the NRC licerses and rervle'rfs. all handling, storage, and disposal of low level radioactive waste.
Your niccrandur. alse requested an opinion on the licensing, In Agreement Satos, of low level waste disposel within the exclusion area.
The three stptererts are correct.
In Agreement States the KRC will license and re.vlate the handlinS and storage of low level waste in the exclusion area.
bt'en the waste is derived from offsite waste generators NRC jurisdictiof Is based prin,,rily on 10 CFR 100.3(a) which requires the reactor licersef to maintain an exclusion area in which the licensee retains full cortrol over all activities in order to protect public health and safety from a postulated fissiur, product release resultino from a hypothetical major eccidert.
- PC licensing authority is seen as essential to maintaining such licensee control.
Thus, under Generic Letter 85-14 any program sponsored by a state to fulfill Its low level waste oblitions pursuant to the Low Level Radioactive Vasta Policy Act (Public Law 96-573, 42 U.S.C. 2021b-2021d) by stcrage of waste within the exclusion area of a nuclear power reactor will be suhecct to the licersing and regulatory jurisdiction of the NRC.
In A;reement States the handling and storage at the reactor site of low level waste resulting frorr the operation of the reactor Is reserved to the NPC pursuant to 10 CFR 1S0.l)()1).
It is reasonable to view the exclusion area as the reactor site for this purpose since it represents spatially the area of greatest and most immediate public health and safety concern in the operation ofthe reactor.
See e.o. Southern Califorria Edison Company, (San Onofre Nuclear Generating STaiion, Units 2 and 3), ALAB-268, I NPC 363 (1975), ALAB-308, 3 NRC 20 (1971).
USCA Case #19-1240 Document #1833123 Filed: 03/11/2020 Page 3 of 5 (Page 36 of Total)
SEP 13 985 The conclOsion 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 wes 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 retainino handling and storage.
"The Commission has taken Into consideration the comments and advice it has received in adopting the regulation set out herein.
The Commission has decided against blanket reservations of control over land burial of waste and over the transfer of manufactured products.
However, as to land burial, the Commission finds, pursuant to section 274c.(4), of the Act that because of the hazards or potential hazards thereof, high level atomic energy wastes from the chemical processing of irradiated fuel elements should not be disposed of without a license from the Commission.
This finding is reflected in-§ 150.15(a)(4).
Control over the handling and storage of waste at the site of a reactor, including effluent discharge, will be retained by the Commission as part of the control of reactor operation.
The states will have control over land burial of low level wastes." (emphasis supplied). (27-FR 1351, February 14, Under Sectlor 301(b) of the Energy Reorganization Act of 1974, 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.
We note that Agreement State licensing of the disposal of reactor low level waste within the exclusion area is not inconsistent with the requirement in 10 CFR 100.3(a) for licensee control of activities in the exclusion area. The issuance of a license by an Agreement State for disposal of reactor low level wastes in the exclusion area only establishes the conditions under which the disposal may be made. It does not diminish either the licensee's decisional authority whether to undertake the activity, nor his control over its execution.
Further, under well established rules of preemption if conditions in the State Issued license for disposal conflict with the terms of the Federal operating license, then the latter will prevail.
Accordingly, the legal advice previously given by this office on this matter stands.
Your memorandum raises four additional concerns arising from the conclusion given above.
First, although the regulatory structure may USCA Case #19-1240 Document #1833123 Filed: 03/11/2020 Page 4 of 5 (Page 37 of Total)
3 -
~
SEP IBM tL.t appear to be the most efficient, licensing f.disposal by the Agreement Stptes and of-handling and storage by NkC arc not inconsistent.
The two goverrd,,ental units are regulating diffetren*laspects of the waste generation and disposal process.
Such divislon$s-fesponsibility are comron ir. governmknt.
Second, IE Notice 83-CE/is valid advice for reactors In rcn-AgreeiL:r.t States.
1tfis not, ýýier, applicable in Agreement States witl rtspect to disposal by lar.d burial.
Third, the legal conclusion does not create the potential of each Agreement State determining release levels at eact. plant site. The legal'advice consistently given by this office is that re.c*ie levels reilated to the" handling and storage of the waste at the reactor sitp erc established by NRC.
For-example, Duke Power Company has been advised crl) recently ttl t it is appropriate to use the detection levels in JE Circular EI-C'7 fer purpcse of release Vf waste from. the site, but that the permission tur ;ctt.al dispesel of the waste must conue from the state.
j~27 Fourtt, it is unnecessary fcr decisions associated with decommissioning of rep:tors and release of sites for unrestricted use to be complicated ty cur legal ccnclusion.
Or. the contrar), it can be seen as clarifying the le~cl background against which those oecisions will be made and insuring consislence witt other low-level waste cisposal decisions which will be made by thl !tetes.
Aftti removal of all special nuclear material fron; the site and fixin'. the machine so that it can never again be used in the production cr utilizatior. of special nuclear naterial, there is a legal basis fcr Agreer;,eit State regulation of the remairtnn byproduct radioactivity if ttf WQC takes the positior that leavir. the radioactive structures on site in bo,,e s~fe configur;ation is the method of choice for disposal of the remaining bt'rrceuct material. On the other hand, assuming a contiined legal viability for IC F 15.15((1), a storage option would tend to preserve NRC Jurisdiction. I/
If continueO -dR jurisdiction is considered essential for all rea~tcr decommissioning cases, then a Commission determination that the t.zerds of the waste require continued Comaiission licensing ano a ruleaaking under %corion 274c.(Z) of the Atomic Energ) Act amending 10 CFR 150.15 would by *.visabAe.
J 01 I
6&ty ". Cunnin~hau,-iYI Executive Legal Director cc: John G. LUvls, OMSS enaes M. TaeIor, IE Uayne Kerr, OSP 1/ The following legal argument can be made that IG CFR 150.15(a)(1) would have no legal significance in these circumstances. If there is no longer a reactor as defined in 10 CFR Part 50, there is no continuine basis for NRC juridiction under Chapter 10 of tie Atomic Energy Act. Absent the latter, 10 CFR 150.15(a)(1) is of no effect.
Likewise, absent a critical mass of special nuclear material, 10CFR 150.1C provides ro jurisdictional base.
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NEI EXHIBIT 2 USCA Case #19-1240 Document #1833123 Filed: 03/11/2020 Page 1 of 11 (Page 39 of Total)
.ss'yes.
Nuclear Operating Company South Texas Project Electric Generating Station P.O. Box 2 89 Wadsworth. Texas 77483 August 14, 2018 NOC-AE-18003591 File No. W13 Brian Holian Acting Director, Office of Nuclear Reactor Regulation U.S. Nuclear Regulatory Commission One White Flint North (13H16) 11555RockvillePike Rockville, MD 20852 South Texas Project Units 1 and 2 Docket No. STN 50-498 and STN 50-499 STPNOC Agreement for Disposal of Very Low-Leve! Radioactive Material
References:
- 1. Letter from R.A. Gangluff, STPNOC, to S. Jablonski, TCEQ, "Exemption of Waste Streams Containing Trace Quantities of Radioactive Material",
March 5, 2008 (NOC-TX-08017813)
- 2. Letter from H. Weger, TCEQ, to R.A. Gangluff, STPNOC, "Exemption Concurrence Request Log No. 2007-11-0007" (TX-NOC-08018077)
During a recent NRC Radiation Safety team inspection, it was brought to the attention of South Texas Project Nuclear Operating Company (STPNOC) that the NRC's position regarding disposal of very low level radioactive waste, hereafter referred to as exempt quantity waste, has changed.
STPNOC is writing this letter to request that the NRC acknowledge the existing durable agreement STPNOC has with the State of Texas for disposal of exempt quantity waste streams and that the NRC's change in position does not apply retroactively to STPNOC's existing agreement with the State of Texas.
A recent Radiation Safety team inspection included a review of shipments of exempt quantity waste shipped to an industrial landfill located within the State of Texas pursuant to a determination issued by the Texas Commission on Environmental Quality (TCEQ) in 2008. In its determination, the TCEQ concludes that the specified waste streams are exempt under the relevant provisions of the Texas Administrative Code (TAG) and could be disposed of in a Texas Class 1 or 2 industrial landfill. The shipments are included in the South Texas Project Electric Generating Station (STPEGS) 2017 Radioactive Effluent Release Report (Units 1 and 2).
During the inspection, STPNOC was informed that the NRC was considering issuing a minor violation because, although the TCEQ had concurred with this method of disposal, there was no separate approval issued by the NRC. It is our understanding that the basis for the potential minor violation is STPNOC's alleged failure to comply with Regulatory Issue Summary 2016-11, Requests to Dispose of Very Low-Level Radioactive Waste Pursuant to 10 CFR 20.2002 (RIS-2016-11), dated November 13, 2016.
STI:34705831 USCA Case #19-1240 Document #1833123 Filed: 03/11/2020 Page 2 of 11 (Page 40 of Total)
NOC-AE-18003591 Page 2 of 4 RIS-2016-11 "makes the clarification that any licensee's 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."1 This direction is contrary to the agency guidance that was previously provided in Information Notice (IN) 86-90:
Requests to Dispose of Very Low-Level Radioactive Waste Pursuant to 10 CFR 20.302 (IN 86-90),
dated November 3, 1986. Specifically, IN 86-90 directed reactor licensees located in Agreement States to submit applications for alternate disposal methods to the Agreement State, rather than the NRC. This guidance was in effect until the issuance of RIS-2016-11 in 2016. Although the guidance provided in RIS-2016-11 is described as "supersed[ing] Information Notice (IN) 1986-90,"
the RIS also states that it required "no action or written response" from licensees and was not a backfit pursuant to any of the NRC's backfitting or issue finality provisions.2 Consistent with the operative guidance in place at the time (/.e., IN 86-90), and given that the STPEGS is located entirely in the State of Texas and Texas is an Agreement State, in March 2008 STPNOC sought concurrence from the State of Texas for the disposal of certain exempt quantity waste streams within the State of Texas. That same month, STPNOC obtained a determination from the TCEQ that specific waste streams containing trace quantities of radioactive material are considered exempt under the TAG. Under the conditions of its determination, the TCEQ concurred with STPNOC's request to allow disposal of these specific waste streams, which contain radionuclide concentrations and quantities below the limits specified in the TAG, in Class 1 or 2 industrial landfills within the State of Texas. There is no sunset clause or other time-limiting condition in the TCEQ's approval of this disposal method. STPNOC's shipping of specified exempt quantity waste to an industrial landfill under the conditions and terms established by the TCEQ does not constitute a safety issue or hazard to the public or the environment. STPNOC verifies that the activity levels and amounts of exempt quantity waste shipments meet the requirements and conditions specified in the TCEQ's determination.
Contrary to the express language in RIS-2016-11, STPNOC now understands that the NRC may be interpreting the document to require STPNOC to submit a duplicate request for NRC approval of methods of disposal for exempt quantity wastes that are already covered by the exemption agreement issued by the State of Texas. The potential violation communicated to STPNOC during our recent Radiation Safety team inspection is not safety-significant, but has the potential to significantly impact STPNOC's low-level radioactive waste management practices and procedures in the near future. Specifically, given the position taken by the NRC during our recent inspection, STPNOC has suspended its practice of shipping exempt quantity waste offsite for disposal, leaving STPNOC in the position of storing this material onsite until the issue has been resolved.
The station currently has approximately two months of onsite storage capacity available to accommodate exempt quantity waste. The station will need to obtain extra storage capacity by October 2018, or begin shipping exempted quantity waste to a Part 61 disposal facility at that time.
Both onsite storage and shipment to a Part 61 facility represent a substantial logistical and financial hardship to the station, with no additional safety benefit. Further, shipping exempt quantity waste to a Part 61 disposal facility will result in significantly increased transportation distances and will unnecessarily reduce overall disposal capacity at a Part 61 facility with no commensurate safety benefit.
1RIS-2016-11,pg.2 2 RIS-2016-11, at pg. 3, "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..." Id.
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NOC-AE-18003591 Page 3 of 4 STPNOC believes that the site's disposal practice for exempt quantity waste, undertaken pursuant to a long-standing agreement with TCEQ that predates RIS-2016-11 by eight years, is appropriately authorized. However, given the significant near-term impacts on STPNOC's exempt quantity waste management practices, our specific request focuses on expeditiously resolving this issue rather than disputing the positions in RIS-2016-11 or the merits of the alleged minor violation.3 In conclusion, per the discussion provided above, STPNOC requests that the NRC acknowledge the existing durable agreement STPNOC has with the State of Texas for disposal of exempt quantity waste streams and that the NRC's change in position does not apply retroactively to STPNOC's existing agreement with the State of Texas.
There are no commitments in this letter.
Please contact me at (361)972-8164 for questions regarding this manner.
Respectfully, Michael Murray Regulatory Affairs Manager PLT/WEB Attachments: 1. Letter from STPNOC to TCEQ, "Exemption of Waste Streams Containing Trace Quantities of Radioactive Material"
2007-11-0007" 3 While not the focus of this letter, STPNOC reserves the right to dispute any violation that is ultimately issued as a result of the inspection referred to in this letter, pursuant to the NRC's standard inspection and enforcement processes.
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NOC-AE-18003591 Page 4 of 4 ec:
Heather Gepford Branch Chief, Region IV U.S. Nuclear Regulatory Commission 1600 East Lamar Boulevard Arlington, TX 76011-4511 Kriss Kennedy Regional Administrator, Region IV U.S. Nuclear Regulatory Commission 1600 East Lamar Boulevard Arlington, TX 76011-4511 Lisa M. Regner Senior Project Manager U.S. Nuclear Regulatory Commission One White Flint North (09E01) 11555 Rockville Pike Rockville, MD 20852 Kevin Hsueh Branch Chief, Radiation Protection Office of Nuclear Reactor Regulation U.S. Nuclear Regulatory Commission One White Flint North 11555RockvillePike Rockville, MD 20852 Richard Chang Branch Chief, Low-Level Waste Office of Nuclear Materials Safety and Safeguards U.S. Nuclear Regulatory Commission Two White Flint (05A10) 11545RockvillePike Rockville, MD 20852 NRC Resident Inspector U. S. Nuclear Regulatory Commission P. 0. Box 289, Mail Code: MN116 Wadsworth,TX 77483 U. S. Nuclear Regulatory Commission Attention: Document Control Desk Washington, DC 20555-0001 USCA Case #19-1240 Document #1833123 Filed: 03/11/2020 Page 5 of 11 (Page 43 of Total)
NOC-AE-18003591 Letter from STPNOC to TCEQ, "Exemption of Waste Streams Containing Trace Quantities of Radioactive Material" USCA Case #19-1240 Document #1833123 Filed: 03/11/2020 Page 6 of 11 (Page 44 of Total)
Nuclear Operating Company South Teas Project Electn'cCcncnstlng Station P.O. Box 289 Wadsworth. Texas 7748 3 March 5, 2008 NOC-TX-08017813 PFN: W13 STI No. 32272638 Ms. Susan Jablonski, Director Radioactive Materials Division Texas Commission on Environmental Quality P.O. Box 13087 Austin, Texas 78711-3087
SUBJECT:
EXEMPTION OF WASTE STREAMS CONTAINING TRACE QUANTITIES OF RADIOACTIVE MATERIAL
Dear Ms. Jablonski,
STP Nuclear Operating Company requests that the Texas Commission on Environmental Quality exempt certain waste streams (dcwatered sludge, ion exchange or other purification media, ventilation filtration media, soil and other similar waste streams) generated at the South Texas Project Electric Generation Station (STPEGS) from the radioactive material regulations.
Approval for disposal of very low-level radioactive waste generated by Nuclear Regulatory Commission licensed nuclear power plants located within Agreement States is within the regulatory jurisdiction of the Agreement State in which the waste is generated.
The waste to be disposed of is dewatered sludge or sanitary sludge removed from the STPEGS wastewater treatment systems, ion exchange media or other purification media used in water treatment, filter media used in ventilation systems, soil and other similar waste streams. These wastes were previously disposed of in a Texas Class 1 or 2 industrial landfill prior to detection of tritium and trace gamma activity. They have since been shipped to an industrial landfill in Tennessee for disposal as radioactive waste or are being stored onsite. With the exemption, these waste streams could be disposed of in a Texas Class 1 or 2 industrial landfill. These waste streams would not be combined and would be individually profiled with the waste disposal facility based on waste classification.
Exempt concentrations and quantity limits for radioactive material other than source material is established in Chapter 25 Texas Administrative Code Section 289.25 l(e). These limits suggest that radionuclide concentrations and quantities below these limits do not represent a hazard to the public or environment.
Tritium concentrations are determined using liquid scmtillation techniques. Radionuclide analyses are performed using 9 gamma spectroscopy system. STP Nuclear Operating Company will sample and analyze these waste streams in accordance with station procedures that provide assurance of an accurate determination of the type and quantity of radioactive material in these waste streams prior to shipment for disposal. The quality assurance program for analytical measurements is in accordance with Title 10 of the Code of Federal Regulations, Part 50, USCA Case #19-1240 Document #1833123 Filed: 03/11/2020 Page 7 of 11 (Page 45 of Total)
Ms. Susan Jablonski March 5, 2008 Page 2 Appendix B. An Interlaboratory Comparison Program is maintained to ensure that independent checks on the precision and accuracy of the measurements of radioactive materials are performed as part of the quality assurance program. The program demonstrates the ability to measure low levels of relevant radionuclides. The intercomparison program maintains National Institute of Standards and Technology traceability. These measurements will ensure that regulatory limits are not exceeded. Records of these surveys, analyses, calculations and shipping manifests will be retained in our Records Management System. The radioactivity in waste shipments is also quantified and reported to the Nuclear Regulatory Commission in the Annual Radioactive Effluent Release Report.
In summary, STP Nuclear Operating Company requests that these very low-level contaminated waste streams generated at the South Texas Project Electric Generating Station be exempted from the radioactive material regulations to allow disposal in a Texas Class 1 or 2 industrial landfill. If you have any questions or require additional information, please contact Ms. S. L.
Dannhardt at (361) 972-8328.
R. A. Gangluf Chemistry, Environmental and Health Physics Manager
/sld USCA Case #19-1240 Document #1833123 Filed: 03/11/2020 Page 8 of 11 (Page 46 of Total)
Ms. Susan Jablonski March 5, 2008 Page 3 bcc: K. L. Coates S. M. Head W. T. Bullard D. J. Bryant G. E. Williams K. M-Cunningham K. W. Reynolds Correspondence, N2002 USCA Case #19-1240 Document #1833123 Filed: 03/11/2020 Page 9 of 11 (Page 47 of Total)
NOC-AE-18003591 Attachment^
Letter from TCEQ to STPNOC, "Exemption Concurrence Request, Log No. 2007-11-0007" USCA Case #19-1240 Document #1833123 Filed: 03/11/2020 Page 10 of 11 (Page 48 of Total)
Buddy Garcia, Chairman Larry R. Soward, Commissioner Br/an W. Shaw, Ph.D., Commissioner Glenn Shankle, Executive Director Texas Commission on Environmental Quality Protect ing Texas by Reducing and Pr event mg Pollution TO-NOC-08018077 PFN: W13 STI No.32308950 March 7, 2008 STP NUCLEAR OPERATING CO SOUTH TEXAS PROJECT ELECTRIC GENERATING STATION ATTN-.R-A.GANGLUFF PO BOX 289 WADSWORTH TO 77483
Dear Mr-Gangluff:
Re: Exemption Concurrence Request Log No. 2007-11-0007 Please be advised that the Texas Commission on Environmental Quality has determined that the contaminated dewatered sludge, ion exchange or other purification media, ventilation filtration media, soil and other similar waste streams generated at the South Texas Project Electric Generation Station (STPEGS), described in your letter of March 5, 2008, are exempt under the provisions of Chapter 25 of the Texas Administrative Code (TAG) Section (§) 289.25 l(e) and 30 TAG §336.5(c) provided that the waste is sampled, as described in your letter of March 5, 2008, to verify that the tritium and other radionuclide levels do not exceed the limits found in 25 TAG
§289.25 l(m).
Please let me know if I may answer any questions regarding this determination. 1 can be reached by telephone at 512-239-6465 or be e-mail at hweger@tceq.state.tK.us.
Sincerely, Hans Weger, Ph.D.
Waste License RevidSver Radioactive Material Division ec: Katherme Nelson, TCEQ Sandy Dannhardt, STPEGS P.O. Box 13087
- 512-239-1000
- Internet address: www.tceq.state.tx.us piinied on recycled piper usiny soy-btsed ink USCA Case #19-1240 Document #1833123 Filed: 03/11/2020 Page 11 of 11 (Page 49 of Total)
NEI EXHIBIT 3 USCA Case #19-1240 Document #1833123 Filed: 03/11/2020 Page 1 of 5 (Page 50 of Total)
October 2, 2019 MEMORANDUM TO:
Stephen Koenick, Chief Low-Level Waste and Projects Branch Division of Decommissioning, Uranium Recovery and Waste Programs Office of Nuclear Material Safety and Safeguards FROM:
Stephen Dembek, Senior Project Manager Low-Level Waste and Projects Branch
/RA/
Division of Decommissioning, Uranium Recovery and Waste Programs Office of Nuclear Material Safety and Safeguards
SUBJECT:
SUMMARY
OF SEPTEMBER 6, 2019, PUBLIC MEETING On September 6, 2019, a Category 2 public meeting was held at U.S. Nuclear Regulatory Commission (NRC) headquarters. The meeting was noticed on NRCs public website and the notice is available at NRCs Agencywide Documents Access and Management System (ADAMS) Accession No. ML19247B399. The meeting agenda and presentation slides were included as part of the meeting notice. The purpose of the meeting was to discuss the NRCs proposed path forward to address concerns regarding Regulatory Issue Summary (RIS) 2016-11, Requests to Dispose of Very Low-Level Radioactive Waste Pursuant to 10 CFR 20.2002 (ML16007A488), with the Nuclear Energy Institute (NEI); EnergySolutions, LLC; Waste Control Specialists LLC; South Texas Project Nuclear Operating Company; and several Agreement States.
SUMMARY
OF NRC PRESENTATION:
Bo Pham, Deputy Director, Division of Decommissioning, Uranium Recovery and Waste Programs, opened the meeting for the NRC staff. Mr. Pham presented a short overview of the recent history of this issue using the presentation slides. Specifically, he discussed the Agreement State (AS) Letter, FSME-12-025 (ML12065A038), RIS 2016-11, and South Texas Project (STP) Enforcement Action, EA 18-137 (ML18260A250). He then summarized the three stakeholder letters the NRC received on this issue. The letters were received from: NEI (ML19086A320), EnergySolutions, LLC (ML19121A550), and Waste Control Specialists LLC (ML19206A452). Mr. Pham affirmed the position in RIS 2016-11 in that Title 10 of the Code of Federal Regulations (10 CFR) Section 20.2002, Method for obtaining approval of proposed disposal procedures, has two approval aspects, one by the licensing authority of the generator and one by the licensing authority for the disposal. He further noted that the NRC continues to develop its path forward (whether / how to clarify guidance) but has not reached a decision of the specific means to do so.
CONTACT: Stephen Dembek, LLPB/DUWP (301) 415-2342 USCA Case #19-1240 Document #1833123 Filed: 03/11/2020 Page 2 of 5 (Page 51 of Total)
S. Koenick 2
After the overview, Stephen Koenick, Chief, Low-Level Waste and Projects Branch, presented the NRCs proposed path forward on this issue. He discussed the two-step process for 10 CFR 20.2002, that consists of the NRC staff performing the first step to review and approve the alternate method of disposal. The Agreement State, if applicable, performs the second step to approve the actual disposal and issue an exemption to the receiving facility, if appropriate.
Mr. Koenick, discussed the possible next steps as considering a possible update to RIS 2016-11 or other NRC guidance. The staff would solicit stakeholder input before NRC guidance is revised. He stated that the staff is also considering a potential change in the interpretation of 10 CFR 20.2001 disposal transfers. Specifically, the staff is considering interpretation of authorized recipient to include non-licensed disposal facilities that have been granted an exemption to possess licensed material. The NRC is considering appropriate means to communicate this potential new interpretation to allow for additional stakeholder engagement such as including it within the scope of the ongoing very low-level waste scoping study.
DISCUSSION:
The discussion session was opened after the NRCs presentation.
A representative from EnergySolutions, wanted to know the schedule for the next steps and what will happen during the interim period before the path forward is implemented. The representative wanted to know how this will be communicated to 10 CFR Part 50 licensees and whether or not they need to report anything to the NRC. The representative also requested that very low-level waste be defined and questioned whether disposal via license to license transfer under 10 CFR 20.2001 would be considered in the new path forward.
A representative from Waste Control Specialists noted there was concurrently confusion in the market on the acceptability of waste transfer verses waste disposal and requested that this confusion be resolved with clarifications.
A representative from the NEI noted that it appears NEI is being ignored because the NRCs path forward does not address the issues NEI raised in their letter. Specifically, that the NRC was not following the law and its own regulations when the waste disposal policy was changed by issuing RIS 2016-11. The NRC should clearly look at backfit issues related to the RIS 2016-11 issuance. He further noted NEI wants NRC to establish a transformative, stable, and transparent regulatory policy and case-by-case enforcement discretion is not a predictable way to regulate the industry, and that use of an Enforcement Guidance Memorandum (EGM) may be more appropriate. He noted there are lots of questions on the practicality of using enforcement discretion. He questioned the duplication of reviews by the NRC and Agreement States and should the NRC do a review if the NRC has given Agreement State the ability to regulate disposal. He reiterated the request to rescind RIS 2016-11 and reinstate the policy described in Information Notice 86-90. NEI is looking for a clearly communicated process moving forward.
A representative from the State of Texas noted that Texas does not have a 10 CFR 20.2002 process and instead uses existing Texas regulations for issuing exemptions. He indicated that the State of Texas would like to stay involved in this matter and wants any confusion to be resolved.
A representative from the State of Utah saw value in using enforcement discretion and agreed with others that clarification is needed to gain stability in the enforcement process. He also asked how State exemptions would be looked at by the NRC.
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S. Koenick 3
A representative from South Texas Project stated the licensee is looking for regulatory certainty.
She supports updating RIS 2016-11 and 10 CFR 20.2001 alternative process.
Others mentioned the importance of knowing the NRCs timeframe for completing the resolution of this issue. Mr. Pham stated that the NRC expects to issue the response letters by the end of September.
The members of the public in attendance and on the phone were then invited to comment.
Some of the public comments are listed below:
The public wants to know where this low-level waste is going. The records of alternate disposals should be publicly available. The concern is that an unlimited amount of material can end up in the market place instead of disposal by burial. Information on the curie content and cost of the waste should be publicly available.
There have been numerous incidents where the government made safety promises that were not kept.
This issue goes beyond Parts 50 and 52. This is an evolving issue, and we need regulatory certainty. The two-step process discussed in the slides is not clearly articulated to licensees.
Another commenter suggested a revision to a power plants Process Control Program (PCP) to evaluate proper disposition of solid waste. All Part 50 licensees have PCPs that describe acceptable methods of processing and disposal of solid waste and effluents. The Agreement States have a process to evaluate disposal requests. The commenter raised a question as to whether a Part 50 licensee could go to the PCP and outline the process and evaluate the waste and determine its suitability for a RCRA disposal.
After all public comments were received and an offer for any additional comments from participants, Mr. Pham closed the meeting.
Enclosure:
Attendance List USCA Case #19-1240 Document #1833123 Filed: 03/11/2020 Page 4 of 5 (Page 53 of Total)
- via email OFFICE NMSS/DUWP NMSS/DUWP NMSS/DUWP NAME SDembek SKoenick*
BPham*
DATE 9/19/19 9/19/19 10/2/19
NEI EXHIBIT 4 USCA Case #19-1240 Document #1833123 Filed: 03/11/2020 Page 1 of 4 (Page 55 of Total)
UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 20555-0001 August 21, 2019 ALL AGREEMENT STATES, VERMONT, FEDERALLY RECOGNIZED TRIBES NOTIFICATION OF AN UPCOMING SEPTEMBER 6, 2019 PUBLIC MEETING TO DISCUSS RESPONSE TO LETTERS FROM THE NUCLEAR ENERGY INSTITUTE, ENERGYSOLUTIONS, LLC, AND WASTE CONTROL SPECIALISTS LLC, ON THE U.S.
NUCLEAR REGULATORY COMMISSIONS REGULATORY ISSUE
SUMMARY
2016-11 (STC-19-050)
Purpose:
To provide notification that the U.S. Nuclear Regulatory Commission (NRC) staff will conduct a public meeting to discuss response to letters from the Nuclear Energy Institute, EnergySolutions, LLC, and Waste Control Specialists LLC, on the NRCs Regulatory Issue Summary (RIS) 2016-11, (Agencywide Document Access and Management System (ADAMS) under Accession No. ML16007A488).
Background:
On February 28, 2019, Nuclear Energy Institute provided a letter (ADAMS No.
ML19086A320) to the NRC. On April 8, 2019, EnergySolutions, LLC provided a letter to the NRC (ADAMS No. ML19121A550). On July 17, 2019, Waste Control Specialists LLC provided a letter to the NRC (ADAMS No. ML19206A452).
Discussion: The NRC staff will discuss a path forward in response to the provided letters during the public meeting. This is a Category 2 public meeting: Public participation is actively sought for this meeting to fully engage the public in a discussion on stakeholders concerns with RIS 2016-11.
The meeting is scheduled for September 6, 2019, from 10:00 a.m. - 11:30 a.m. (ET). The meeting will be held at Two White Flint North, Room T6 D02, 11545 Rockville Pike, Rockville, MD 20852 and will also be available via bridge line. The bridge line information is:
Bridge Number:
888-989-0729 Passcode:
7955844#
USCA Case #19-1240 Document #1833123 Filed: 03/11/2020 Page 2 of 4 (Page 56 of Total)
If you have any questions regarding this correspondence, please contact me at 301-415-3340 or the individual named below:
POINT OF CONTACT: Stephen Dembek E-MAIL: Stephen.Dembek@nrc.gov TELEPHONE:
301-415-2342
/RA C Flannery for/
Paul Michalak, Chief State Agreement and Liaison Programs Division of Materials Safety, Security, State and Tribal Programs Office of Nuclear Material Safety and Safeguards USCA Case #19-1240 Document #1833123 Filed: 03/11/2020 Page 3 of 4 (Page 57 of Total)
- via email OFFICE DUWP MSST MSST MSST NAME SDembek SPoy PMichalak/ CF/For AKock /KW/For DATE 08/16/19 08/16/19 08/20/19 08/21/19 OFFICE MSST NAME HGonzalez DATE 8/19/19
NEI EXHIBIT 5 USCA Case #19-1240 Document #1833123 Filed: 03/11/2020 Page 1 of 3 (Page 59 of Total)
Attendance List - US NRC Category 2 Public Meeting Path Forward in Response to 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.
Enclosure NAME AFFILIATION 1
Jen Scro NRC OGC 4
Adam Schwartzman NRC NMSS 5
Tim Matthews Morgan Lewis/WCS 6
Bill Maier NRC Region IV 7
Adam Gendelman NRC OGC 8
James Jeff Wilson United Services 9
Jerry Bonanno NEI 10 Jonathan Rund NEI 11 Heather Gepford NRC Region IV 12 David Carlson WCS 13 Josie Piccone Consultant/WCS 14 Mike Callahan GSI on behalf of WCS 15 Ed Miller NRC NRR 16 M. Herndon Idaho DEQ 17 Bobby Janecka Texas, Office of the Governor 18 Duane Quayle EnergySolutions 19 John Christian EnergySolutions 20 Gerry Van Noordennen EnergySolutions 21 Diane DArrigo NIRS 22 Gregory Suber NRC NRR 23 Stephen Dembek NRC NMSS 24 Stephen Koenick NRC NMSS 25 Bo Pham NRC NMSS 26 Cheryl Rogers State of Washington (by phone) 27 Kristen Schwab State of Washington (by phone) 28 Abhijit Sengupta DOE (by phone) 29 Lisa Bruedigan Texas Department of State Health Services (by phone) 30 Karl Von Ahn Texas Department of State Health Services (by phone)
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Attendance List - US NRC Category 2 Public Meeting Path Forward in Response to 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.
31 Charlotte Sullivan Texas Department of State Health Services (by phone) 32 Ethel Branch H Kanji & Katzen, representing Havasupai Tribe (by phone) 33 Steven Garry NRC NRR (by phone) 34 Assef Azadeh EnergySolutions (by phone) 35 Larry Camper Consultant for EnergySolutions (by phone) 36 Stephen Nance South Texas Project Electric Generating Station (by phone) 37 Kym Harshaw South Texas Project Electric Generating Station (by phone) 38 Lynne Garner SCDHEC (by phone) 39 Debra Shults State of Tennessee (by phone) 40 Ashley Forbes TCEQ (by phone) 41 Alisha Stallard TCEQ (by phone) 42 Brad Broussard TCEQ (by phone) 43 Ron Thomas TCEQ (by phone) 44 Hans Weger TCEQ (by phone) 45 Marvin Lewis By phone 46 Michael Keagon By phone 47 Lisa Edwards EPRI and Texas Compact Commission (by phone)
Others also participated by phone; however, their full names were not recorded and they are not included on this list.
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