ML20276A022

9-30-20 Petitioner Nuclear Energy Institute'S Opening Brief (DC Cir.)(Case No. 19-1240)

ML20276A022
Person / Time
Site:	Nuclear Energy Institute
Issue date:	09/30/2020
From:	Bonanno J, Croley S, Ginsberg E, O'Neil M, Rund J Latham & Watkins, Nuclear Energy Institute
To:	NRC/OGC, US Federal Judiciary, Court of Appeals, for the District of Columbia Circuit
References
1864242, 19-1240
Download: ML20276A022 (145)

Text

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 1 of 67 ORAL ARGUMENT NOT YET SCHEDULED No. 19-1240 United States Court of Appeals for the District of Columbia Circuit NUCLEAR ENERGY INSTITUTE, Petitioner, v.

U.S. NUCLEAR REGULATORY COMMISSION and the UNITED STATES OF AMERICA, Respondents.

On Petition for Review of an Action of the United States Nuclear Regulatory Commission PETITIONER NUCLEAR ENERGY INSTITUTES OPENING BRIEF Ellen C. Ginsberg Steven P. Croley Jonathan M. Rund LATHAM & WATKINS LLP Jerry Bonanno 555 Eleventh Street, NW Martin J. ONeill Suite 1000 Nuclear Energy Institute Washington, DC 20004 1201 F Street, NW (202) 637-2200 Suite 1100 steven.croley@lw.com Washington, DC 20004-1218 (202) 739-8000 Counsel for Petitioner September 30, 2020 (Page 1 of Total)

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 2 of 67 CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES Pursuant to Circuit Rule 28(a)(1), the undersigned counsel certifies the following:

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.

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/s/ Steven P. Croley Steven P. Croley LATHAM & WATKINS LLP 555 Eleventh Street, NW, Suite 1000 Suite 1000 Washington, DC 20004 (202) 637-2200 steven.croley@lw.com Counsel for Petitioner ii (Page 3 of Total)

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 4 of 67 CORPORATE DISCLOSURE STATEMENT As required by Federal Rule of Appellate Procedure 26.1 and D.C. Circuit Rule 26.1, Petitioner NEI submits the following corporate disclosure statement. 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 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 plant licensees, reactor designers and advanced technology companies, architect and engineering firms, fuel suppliers 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.

/s/ Steven P. Croley Steven P. Croley LATHAM & WATKINS LLP 555 Eleventh Street, NW Suite 1000 Washington, DC 20004 (202) 637-2200 steven.croley@lw.com Counsel for Petitioner iii (Page 4 of Total)

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 5 of 67 TABLE OF CONTENTS Page CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES ............................................................................................................. i CORPORATE DISCLOSURE STATEMENT ....................................................... iii TABLE OF AUTHORITIES ................................................................................... vi GLOSSARY OF ACRONYMS AND ABBREVIATIONS .................................. xii JURISDICTIONAL STATEMENT ..........................................................................1 STATEMENT OF ISSUES .......................................................................................1 STATUTES AND REGULATIONS .........................................................................3 INTRODUCTION .....................................................................................................3 STATEMENT OF THE CASE ..................................................................................5 A. The Atomic Energy Act and the Regulation of Low-Level Radioactive Waste .................................................................................5 B. NRCs Agreement State Program .........................................................7 C. Limitations on NRCs Delegation Authority: Plant Operation vs. Waste Disposal ........................................................8 D. NRC Has Long Interpreted Its Regulations to Provide Jurisdiction Over Low-Level Waste Disposal to Agreement States .................................................................................10 E. NRCs Puzzling Change in Position, and Its Consequences for Reactor Licensees ..........................................................................12

SUMMARY

OF ARGUMENT ...............................................................................18 STANDING .............................................................................................................25 STANDARD OF REVIEW .....................................................................................27 ARGUMENT ...........................................................................................................28 iv (Page 5 of Total)

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 6 of 67 Page I. NRCS 2019 LETTER CONSTITUTES REVIEWABLE FINAL AGENCY ACTION ..........................................................................28 A. The 2019 Letter Marks the Consummation of NRCs Decisionmaking ...................................................................................30 B. The 2019 Letter Does Not Simply Restate a Prior NRC Position ................................................................................................31 C. Direct and Appreciable Legal Consequences Flow from the 2019 Letter.....................................................................................34 II. NRC FAILED TO COMPLY WITH REQUIRED NOTICE-AND-COMMENT RULEMAKING PROCEDURES ..................................37 III. NRCS NEW INTERPRETATION IS ARBITRARY AND CAPRICIOUS FOR LACK OF REASONED EXPLANATION .................41 IV. NRC FAILED TO PERFORM A REQUIRED BACKFITTING ANALYSIS UNDER ITS OWN REGULATIONS ...........................................................................................46 V. NRCS NEW ASSERTION OF AUTHORITY OVER LOW-LEVEL WASTE DISPOSAL CONTRAVENES THE ATOMIC ENERGY ACT AND ITS IMPLEMENTING REGULATIONS.................47 A. NRC Has Not Issued Any Valid Regulation or Order Precluding Agreement State Regulation of Low-Level Waste Disposal ....................................................................................48 B. NRC Regulations Unambiguously Treat Disposal Procedures as a Disposal Activity and Not as Reactor Operations ...........................................................................................50 CONCLUSION ........................................................................................................52 v

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USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 7 of 67 TABLE OF AUTHORITIES Page(s)

CASES Adenariwo v. Federal Maritime Commission, 808 F.3d 74 (D.C. Cir. 2015) ........................................................................19, 29 American Mining Congress v. Mine Safety & Health Administration, 995 F.2d 1106 (D.C. Cir. 1993) .......................................................................... 40 Appalachian Power Co. v. EPA, 208 F.3d 1015 (D.C. Cir. 2005) ..............................................................20, 34, 35 Barrick Goldstrike Mines, Inc. v. Browner, 215 F.3d 45 (D.C. Cir. 2000) ......................................................20, 30, 31, 34, 35 Bennett v. Spear, 520 U.S. 154 (1997) ............................................................................................ 29 Blue Ridge Environmental Defense League v. NRC, 668 F.3d 747 (D.C. Cir. 2012) ............................................................................ 29 Brotherhood of Locomotive Engineers & Trainmen v. Federal Railroad Administration, No. 18-1235, 2020 WL 5079389 (D.C. Cir. Aug. 28, 2020) .......................27, 28 California Communities Against Toxics v. EPA, 934 F.3d 627 (D.C. Cir. 2019) ............................................................................ 34 Celcom Communications Corp. v. FCC, 789 F.2d 67 (D.C. Cir. 1986) .............................................................................. 42 Center for Auto Safety v. National Highway Traffic Safety Administration, 452 F.3d 798 (D.C. Cir. 2006) ............................................................................ 37 Christensen v. Harris County, 529 U.S. 576 (2000) ............................................................................................ 52 Ciba-Geigy Corp. v. EPA, 801 F.2d 430 (D.C. Cir. 1986) ............................................................................ 30 vi (Page 7 of Total)

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City of Dania Beach v. FAA, 485 F.3d 1181 (D.C. Cir. 2007) .......................................................................... 31 Connecticut Light & Power Co. v. NRC, 673 F.2d 525 (D.C. Cir. 1982) ............................................................................ 39 Consolidated Edison Co. of New York (Indian Point, Unit No. 2),

No. CLI-85-6, 21 NRC 1043 (1985) .................................................................. 47 CropLife America v. EPA, 329 F.3d 876 (D.C. Cir. 2003) ...................................................................... 19, 30 CSI Aviation Services, Inc. v. United States Department of Transportation, 637 F.3d 408 (D.C. Cir. 2011) ............................................................................ 37 Department of Homeland Security v. Regents of the University of California, 140 S. Ct. 1891 (2020) ........................................................................................ 45 Dominion Resources, Inc. v. FERC, 286 F.3d 586 (D.C. Cir. 2002) ............................................................................ 33 Encino Motorcars., LLC v. Navarro, 136 S. Ct. 2117 (2016) ..................................................................................43, 45 FCC v. Fox Television Stations, Inc.,

556 U.S. 502 (2009) ................................................................................22, 41, 42 Her Majesty the Queen in Right of Ontario v. EPA, 912 F.2d 1525 (D.C. Cir. 1990) .......................................................................... 30 Honeywell International, Inc. v. NRC, 628 F.3d 568 (D.C. Cir. 2010) ............................................................................ 27 Honicker v. NRC, 590 F.2d 1207 (D.C. Cir. 1978) .......................................................................... 29 Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333 (1977) ............................................................................................ 26 vii (Page 8 of Total)

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Kisor v. Wilkie, 139 S. Ct. 2400 (2019) ..................................................................................51, 52 Lone Mountain Processing, Inc. v. Secretary of Labor, 709 F.3d 1161 (D.C. Cir. 2013) .......................................................................... 45 Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158 (2007) ............................................................................................ 43 Mendoza v. Perez, 754 F.3d 1002 (D.C. Cir. 2014) .......................................................................... 41 Natural Resources Defense Council, Inc. v. NRC, 680 F.2d 810 (D.C. Cir. 1982) ............................................................................ 29 NEI v. EPA, 373 F.3d 1251 (D.C. Cir. 2004) .................................................................... 25, 27 Perez v. Mortgage Bankers Association, 135 S. Ct. 1199 (2015) ............................................................................22, 39, 42 Physicians for Social Responsibility v. Wheeler, 956 F.3d 634 (D.C. Cir. 2020) ............................................................................ 45 Rhea Lana, Inc. v. Department of Labor, 824 F.3d 1023 (D.C. Cir. 2016) .................................................................... 21, 36 Sackett v. EPA, 566 U.S. 120 (2012) ................................................................................20, 34, 36 Siegel v. Atomic Energy Commission, 400 F.2d 778 (D.C. Cir. 1968) .............................................................................. 5 Sierra Club v. EPA, 699 F.3d 530 (D.C. Cir. 2012) ............................................................................ 40 Sierra Club v. FERC, 827 F.3d 59 (D.C. Cir. 2016) .............................................................................. 26 Union of Concerned Scientists v. NRC, 711 F.2d 370 (D.C. Cir. 1983) ...................................................................... 41, 47 viii (Page 9 of Total)

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Union of Concerned Scientists v. NRC, 824 F.2d 108 (D.C. Cir. 1987) ............................................................................ 46 United States Army Corps of Engineers v. Hawkes Co.,

136 S. Ct. 1807 (2016) ..................................................................................30, 34 Valero Energy Corp. v. EPA, 927 F.3d 532 (D.C. Cir. 2019) ...................................................................... 20, 34 Verizon v. FCC, 740 F.3d 623 (D.C. Cir. 2014) ............................................................................ 41 Weaver v. Federal Motor Carrier Safety Administration, 744 F.3d 142 (D.C. Cir. 2014) ............................................................................ 28 STATUTES AND REGULATIONS 5 U.S.C. § 551 ............................................................................................................ 1 5 U.S.C. § 551(5) ...............................................................................................22, 39 5 U.S.C. § 553 ..............................................................................................21, 38, 41 5 U.S.C. § 553(b)-(d) .........................................................................................22, 39 5 U.S.C. § 702 ............................................................................................................ 1 5 U.S.C. § 706(2) .........................................................................................41, 46, 47 28 U.S.C. § 2342(4) ................................................................................................... 1 28 U.S.C. § 2344 ........................................................................................................ 1 42 U.S.C. § 2021 .................................................................................................... 4, 7 42 U.S.C. § 2021(b) .............................................................................................7, 23 42 U.S.C. § 2021(c) ................................................................ 3, 8, 13, 24, 33, 48, 52 42 U.S.C. § 2021(d) ................................................................................................... 7 42 U.S.C. § 2021(j) ..............................................................................................7, 25 ix (Page 10 of Total)

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 11 of 67 Page(s) 42 U.S.C. § 2021b(7) ................................................................................................. 9 42 U.S.C. § 2021b(9) ................................................................................................. 6 42 U.S.C. § 2239(a) ................................................................................................... 1 42 U.S.C. § 2239(b) .............................................................................................1, 27 42 U.S.C. § 2273(a) ................................................................................................. 35 42 U.S.C. § 2273(c) ................................................................................................. 35 10 C.F.R. § 2.804(e)................................................................................................. 41 10 C.F.R. § 20.302(a)............................................................................................... 11 10 C.F.R. § 20.2001(a)............................................................................................... 6 10 C.F.R. § 20.2002 .......................................................................................6, 13, 53 10 C.F.R. § 20.2002(a)-(d)....................................................................................... 51 10 C.F.R. § 50.109 ................................................................................................... 46 10 C.F.R. § 50.109(a).............................................................................14, 23, 33, 46 10 C.F.R. § 50.109(c)............................................................................................... 14 10 C.F.R. § 61.55 ....................................................................................................... 6 10 C.F.R. § 150.10 ...............................................................................................7, 53 10 C.F.R. § 150.15 ................................................................................................... 53 10 C.F.R. § 150.15(a)...................................................... 9, 10, 13, 22, 24, 38, 50, 52 OTHER AUTHORITIES 27 Fed. Reg. 1351 (Feb. 14, 1962) ................................................................9, 24, 38 53 Fed. Reg. 31,880 (Aug. 22, 1988) ...................................................................... 40 61 Fed. Reg. 26,852 (May 29, 1996) .................................................................40, 51 x

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USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 12 of 67 Page(s) 85 Fed. Reg. 19,966 (Apr. 9, 2020) ......................................................................... 51 D.C. Cir. R. 28(a)(5) .................................................................................................. 3 D.C. Cir. R. 28(a)(7) ................................................................................................ 18 Fed. R. App. P. 28(f) .................................................................................................. 3 NRC, Information Notices, https://www.nrc.gov/reading-rm/doc-collections/gen-comm/info-notices/ (last updated Sept. 17, 2020) .................... 11 NRC, Values: Principles of Good Regulation (last updated Apr. 19, 2019), https://www.nrc.gov/about-nrc/values.html#principles ............................ 3 xi (Page 12 of Total)

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 13 of 67 GLOSSARY OF ACRONYMS AND ABBREVIATIONS 1986 Information NRC, Information Notice No. 86-90, Requests to Notice Dispose of Very Low-Level Radioactive Waste Pursuant to 10 CFR 20.302 (Nov. 3, 1986) 2016 Issue Summary Regulatory Issue Summary 2016-11 2019 Letter September 16, 2019 letter from NRC to petitioner Nuclear Energy Institute AEA Atomic Energy Act AEC Atomic Energy Commission APA Administrative Procedure Act EPA Environmental Protection Agency Legal Opinion NRC, Jurisdiction Over Low Level Waste Management at Reactor Sites in Agreement States (Sept. 13, 1985)

NEI Nuclear Energy Institute NRC Nuclear Regulatory Commission Public Meeting NRC, Summary of September 6, 2019 Public Meeting Summary (Oct. 2, 2019)

South Texas STP Nuclear Operating Company South Texas Letter Aug. 14, 2018 Letter from STP Nuclear Operating Company to NRC xii (Page 13 of Total)

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 14 of 67 JURISDICTIONAL STATEMENT This petition seeks review under the Administrative Procedure Act (APA) of the Nuclear Regulatory Commissions (NRC) final agency action contained in a September 16, 2019 letter to petitioner Nuclear Energy Institute (NEI) (2019 Letter) (JA__). See 5 U.S.C. §§ 551, 702. This Court has jurisdiction under 42 U.S.C. § 2239(b)(1) and 28 U.S.C. § 2342(4) to review NRCs final agency order, which effects a modification of rules and regulations dealing with the activities of licensees. 42 U.S.C. § 2239(a)(1)(a). NEI timely filed the petition for review on November 15, 2019, within sixty days of NRCs 2019 Letter. See 28 U.S.C. § 2344.

STATEMENT OF ISSUES

1. Do direct and appreciable legal consequences flow from the 2019 Letter such that it constitutes reviewable final agency action? NEI answers yes.

2. NRCs 2019 Letter states that the agency will now apply an informal guidance document titled Regulatory Issue Summary 2016-11 (2016 Issue Summary) in enforcement actions against reactor licensees that do not obtain a previously unnecessary approval from NRC for disposal of very low-level radioactive waste. 2019 Letter 1 (JA__). But NRC provided no notice or opportunity to comment on the 2019 Letter (or the 2016 Issue Summary to which the 2019 Letter ascribes new meaning and legal effect). Did NRC violate the APA 1

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USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 15 of 67 by failing to provide any notice or opportunity to comment before imposing a new regulatory obligation on nuclear power licensees? NEI answers yes.

3. NRCs 2019 Letter relied upon a single statement in the 2016 Issue Summary asserting that NRCs prior interpretation of the Atomic Energy Act (AEA) and NRC regulations was incorrect. See 2019 Letter 1 (JA__). But neither the 2019 Letter nor the 2016 Issue Summary provides any explanation or supporting rationale for NRCs new position that the AEA precludes transfer of regulatory jurisdiction over disposal of very low-level waste to Agreement States. Did NRC violate the APA by failing to provide the required reasoned explanation for its changed interpretation? NEI answers yes.

4. A foundational NRC regulation known as the Backfitting Rule requires the agency to conduct an analysis before imposing new or amended regulations or interpretations on reactor licensees. The 2016 Issue Summary stated that because it require[d] no action or written response and was strictly voluntary, no backfitting analysis was required. 2016 Issue Summary 3 (JA__).

But then, without any backfit analysis and without even addressing the Backfitting Rule, NRCs 2019 Letter stated, for the first time, that nuclear licensees must follow the 2016 Issue Summary or else face enforcement action. Was NRCs failure to perform a backfitting analysis arbitrary and capricious, an abuse of discretion, or 2

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USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 16 of 67 otherwise a violation of law, as well as inconsistent with its own regulation? NEI answers yes.

5. The AEA allows NRC to transfer authority to regulate nuclear waste disposal to the states unless NRC determines by regulation or order that for reasons of public safety it must maintain that authority. 42 U.S.C. § 2021(c)(4). In 1962, NRC determined by regulation that states may regulate low-level waste disposal, and accordingly entered into agreements transferring this authority to many Agreement States. Decades later, without issuing any regulation or order as required by the AEA, NRC reasserted jurisdiction over the disposal of very low-level waste. Does NRCs new claim of authority contravene both the AEA and NRCs own regulations? NEI answers yes.

STATUTES AND REGULATIONS Applicable statutes and regulations are contained in the separate addendum filed herewith at ADD67-75. See Fed. R. App. P. 28(f); D.C. Cir. R. 28(a)(5).

INTRODUCTION This case tests basic principles of fair administrative process and NRCs own Principles of Good Regulation.1 Upending decades of settled agency practice on 1

See NRC, Values: Principles of Good Regulation (last updated Apr. 19, 2019),

https://www.nrc.gov/about-nrc/values.html#principles (stating that [t]he public must be informed about and have the opportunity to participate in the regulatory processes as required by law, and that [a]gency positions should be readily understood and easily applied.).

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USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 17 of 67 which members of NEI had come to rely, NRC altered the relative roles of the federal and state governments in regulating disposal of low-level radioactive waste. NRCs decision, conveyed in its 2019 Letter, expanded its own regulatory authority and imposed new obligations on owners and operators of nuclear power reactors (NRC licensees). NRC mandated that licensees obtain NRC approval for the land disposal of certain low-level wastei.e., very low-level waste, and concluded that existing state disposal authorizations are no longer sufficient.

NRC thus abandoned its longstanding position that states exercising authority transferred to them from NRC under AEA Section 274, 42 U.S.C. § 2021, so-called Agreement States, have control over the land disposal (i.e., burial) of very low-level waste. NRCs new policy is both procedurally defective and substantively untenable, in violation of the APA, the AEA, and NRCs own regulations. In short, NRC failed to: (1) give NEIs members fair notice or opportunity to comment on the policy change; (2) provide any legal analysis, factual basis, or reasoned decisionmaking to justify the change in position; (3) perform a backfit analysis as required by its own regulations; and (4) comply with AEA Section 274 and NRCs implementing regulations. The 2019 Letter therefore has both legal and practical consequences for the nuclear industry.

NEI recognizes that, in passing the AEA, Congress enact[ed] a regulatory scheme, which is virtually unique in the degree to which broad responsibility is 4

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USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 18 of 67 reposed in the administering agency, free of close prescription in its charter as to how it shall proceed in achieving the statutory objectives. Siegel v. Atomic Energy Commn, 400 F.2d 778, 783 (D.C. Cir. 1968). But that discretion is not unbounded.

There are areas where Congress has prescribed how NRC is to exercise its authority.

Ignoring those constraints, NRC changed the regulatory rulebook governing very low-level waste disposal. It did so by fiatwithout adhering to settled principles of administrative law as well as applicable statutory and regulatory requirements.

This Court should not permit NRC to shortcut required processes by using a mere letter to express its decision, and then use those procedural shortcuts to avoid NEIs challenge. Indeed, NRCs 2019 Letter should have taken the form ofnot substituted fora regulation or order under the AEA, and the agency should have complied with the APAs notice-and-comment and reasoned decisionmaking requirements, and its own regulations governing the imposition of such policy changes. This case requires vacatur of NRCs unlawful action, and remand for further agency consideration of relevant issuesthis time with full participation by the industry and other stakeholders, as required by law.

STATEMENT OF THE CASE A. The Atomic Energy Act and the Regulation of Low-Level Radioactive Waste In generating approximately 20% of the nations electrical power and much of its carbon-free energy, nuclear plants produce certain types of radioactive waste.

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USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 19 of 67 That waste presents risks of varying degrees depending primarily on the radioactivity level of the given type of waste. 10 C.F.R. § 61.55. The AEA distinguishes among different types of radioactive waste, including high-level and low-level waste.2 Low-level radioactive waste includes items that have become contaminated with radioactive material or have become radioactive through exposure to radiation (e.g., old reactor parts, used protective clothing, or everyday equipment and tools). At issue here is the disposal of very low-level radioactive waste, which is waste with some residual radioactivity, but at the lowest end of the low-level waste spectrum.

NRC regulations provide several pathways for disposing of low-level waste.

Those include, for example, transferring the material to an NRC-licensed disposal facility, or releasing it in effluents within regulatory limits. 10 C.F.R.

§ 20.2001(a)(1), (3). NRC regulations also allow licensees to obtain approval of alternative procedures for low-level waste disposal, such as disposal in hazardous or municipal solid waste landfills that, while strictly regulated, are not licensed under the AEA. 10 C.F.R. § 20.2002. For decades, power reactor licensees located in so-called Agreement States have obtained approval for such alternative disposal procedures from the states, not NRC.

2 Low-level waste is radioactive waste not considered high-level waste, spent nuclear fuel, transuranic waste, or byproduct material. 42 U.S.C. § 2021b(9).

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USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 20 of 67 B. NRCs Agreement State Program While NRC has jurisdiction over most civilian uses of nuclear materials, AEA Section 274 authorizes NRC to transfer regulatory authority over specific categories of nuclear materials to the states. 42 U.S.C. § 2021. Thus, NRC may cede some of its regulatory authority by enter[ing] 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. Id. § 2021(b). These Agreement States then assume authority to regulate the materials covered by the agreement. Id.; see also 10 C.F.R. § 150.10.

Before transferring such authority, NRC must find that the Agreement States proposed regulatory regime is compatible with the [NRCs] program and adequate to protect the public health and safety. 42 U.S.C. § 2021(d)(2).

Thereafter, through its Integrated Materials Performance Evaluation Program, NRC provides oversight of Agreement State programs to ensure they remain compatible with NRCs program, and that public health and safety are adequately protected. Section 274 also allows NRC to reclaim its regulatory authority when necessary to protect public health and safety, or when an Agreement State fails to meet its regulatory obligations. See id. § 2021(j). Neither circumstance, however, is present or alleged to apply here.

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USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 21 of 67 C. Limitations on NRCs Delegation Authority: Plant Operation vs.

Waste Disposal The AEA places some limitations on NRCs ability to delegate authority to Agreement States. See 42 U.S.C. § 2021(c). Section 274(c) states that a transfer of NRCs authority to Agreement States may not extend to the construction and operation of any production or utilization facility or any uranium enrichment facility. 42 U.S.C. § 2021(c)(1) (emphasis added). Thus, NRCs jurisdiction over construction and operation of nuclear power plants (which are utilization facilities) is unaffected by NRCs transfer of other regulatory authority to an Agreement State.

Regulation of nuclear power plant construction and operation (and likewise that of enrichment and certain other complex nuclear facilities) lies at the core of NRCs regulatory mission and expertise and thus is exclusive to NRC. The AEA also prevents NRC from delegating authority over disposal of certain nuclear waste materials as the Commission determines by regulation or order should, because of the hazards or potential hazards thereof, not be so disposed without a license from the Commission. Id. § 2021(c)(3); see also id. § 2021(c)(4).

In promulgating the AEAs implementing regulations, NRCs predecessor, the Atomic Energy Commission (AEC), determined that it could delegate authority over low-level waste disposal to Agreement States. In the preamble to that final rule, the AEC explained that many comments on the proposed rule questioned whether the Commission should maintain control of the commercial land burial of 8

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USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 22 of 67 byproduct, source, or special nuclear wastes. 27 Fed. Reg. 1351, 1351 (Feb. 14, 1962). Upon considering such comments, the AEC decided against blanket reservations of control over land burial of waste. Id. The agency clarified that

[c]ontrol over the handling and storage of waste at the site of a reactor, including effluent discharge, will be retained by the Commission as a part of the control of reactor operation. Id. But the Commission stated unequivocally that, [t]he states will have control over land burial of low level wastes. Id. (emphasis added).

Thus, the Commission clearly distinguished between the storage and handling of nuclear waste, which it viewed as part of the control of reactor operation, and the disposal of low-level waste. This distinction makes logical sense. See id. Disposal refers to the permanent isolation of the waste (and not its temporary storage). 42 U.S.C. § 2021b(7). As a practical matter, storage usually refers to the temporary holding of waste prior to treatment or disposal.

NRCs current regulations implementing AEA Section 274, at 10 C.F.R. Part 150, reinforce the basic distinction between the agencys regulatory jurisdiction over nuclear power plant operation and its jurisdiction over low-level waste disposal.

Section 150.15(a)(1) of NRCs regulations 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

[i.e., nuclear fuel] or utilization [i.e., nuclear reactor] facility. 10 C.F.R. 9 (Page 22 of Total)

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§ 150.15(a)(1). The 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. Id.

(emphasis added). That is unremarkable, as storage and handling, and likewise controlled discharges of plant effluents, are all considered part of the nuclear power plant operation. Disposal of low-level waste is not.

D. NRC Has Long Interpreted Its Regulations to Provide Jurisdiction Over Low-Level Waste Disposal to Agreement States Consistent with the foregoing framework, NRC for decades interpreted 10 C.F.R. §§ 150.10 and 150.15 to provide for Agreement State jurisdiction over very low-level waste disposal procedures. Consequently, NRC licensees in Agreement States have long sought, and routinely obtained, state approvals of their waste disposal proceduresnot NRC approval under 10 C.F.R. § 20.2002, which NRC now claims is necessary.

NRC articulated the jurisdictional dichotomy outlined above in a 1985 opinion by its Office of Executive Legal Director. See Office of Executive Legal Director, NRC, Jurisdiction Over Low Level Waste Management at Reactor Sites in Agreement States (Sept. 13, 1985) (Legal Opinion) (JA__-__). It concluded, consistent with the language of the AEA and its implementing regulations, that NRC retained jurisdiction over handling and storage of low-level waste at the reactor site 10 (Page 23 of Total)

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 24 of 67 under 10 C.F.R. § 150.15, but delegated authority over waste disposal to Agreement States. Id. The Legal Opinion reflected explicit consideration of the relevant statutory and regulatory provisions as well as the Part 150 preamble. Id. at 2 (JA__).

The Legal Opinion further observed that the NRC is not at liberty to vary the clear meaning given to this regulation by the [AEC] without a rulemaking proceeding, or by issuance of appropriate orders, pursuant to Section 274c. of the [AEA]. Id.

(emphasis added).

NRC incorporated this Legal Opinion into an NRC Information Notice3 distributed to all NRC reactor licensees. See Office of Inspection Enforcement, NRC, Information Notice No. 86-90, Requests to Dispose of Very Low-Level Radioactive Waste Pursuant to 10 CFR 20.302 (Nov. 3, 1986) (1986 Information Notice) (JA__). The 1986 Information Notice informed 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 under 10 C.F.R. § 20.302(a)

(since re-designated as Section 20.2002(a)). Id. at 1 (JA__). It explained that when a reactor facility was in an Agreement State, the NRC did not have a legal basis for performing the reviews and granting approvals for low-level waste disposal. Id.

3 NRC uses information notices to communicate operating experience to the nuclear industry. It expects licensees to review the notice for applicability and consider appropriate actions. See NRC, Information Notices, https://www.nrc.gov/

reading-rm/doc-collections/gen-comm/info-notices/ (last updated Sept. 17, 2020).

11 (Page 24 of Total)

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 25 of 67 (emphasis added). Citing the Legal Opinion, the Information Notice further stated that in Agreement States NRC approval is not necessary for disposal within or outside of the exclusion area of low-level radioactive waste from a reactor facility because [s]uch approval is within the jurisdiction of the Agreement State. Id.

Here again, NRC treated Section 20.2002 as addressing low-level waste disposal.

E. NRCs Puzzling Change in Position, and Its Consequences for Reactor Licensees For the next three decades, licensees in Agreement States accordingly sought approval to dispose of very low-level waste from Agreement States, not NRC. And Agreement States provided such approvals. Licensees have relied on those state approvals, as reflected in the NEI member declarations filed in this case. But thirty years after NRCs 1986 Information Notice stated that NRC approval is not necessary for the disposal of very low-level waste from reactor facilities located in Agreement States, see 1986 Information Notice 1 (JA__)and with no changes in law or other circumstanceNRC apparently began to reverse course. The breadth and regulatory import of NRCs rewrite of the regulatory history would not be fully revealed until its 2019 Letter.

NRCs 2016 Issue Summary cryptically asserted that NRCs 1986 Information Notice was a thirty-year mistake that 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. 2016 Issue 12 (Page 25 of Total)

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 26 of 67 Summary 1 (JA__). It also stated 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. Id. at 2 (JA__). But NRC provided no legal analysis or policy justification for these assertions. In particular, the 2016 Issue Summary failed to mention the jurisdictional issues discussed in NRCs 1985 Legal Opinion, and offered no alternative interpretations of the AEAs relinquishment provisions or Section 150.15 to justify its conclusion. 2016 Issue Summary 1-3 (JA__-__); see also 42 U.S.C. § 2021(c); 10 C.F.R. § 150.15(a). It also overlooked that Section 20.2002 on its face applies solely to the disposal of waste containing licensed materialnot storage and handling of such waste or any other aspect of reactor operation. 2016 Issue Summary 1-3 (JA__-__); see also 10 C.F.R.

§ 20.2002.

Those shortcomings aside, the 2016 Issue Summary lacked any apparent regulatory force or legal effect. By its terms, the 2016 Issue Summary imposed no legal consequences on licensees. Importantly, it did not state that licensees who had secured Agreement State approvals for very low-level waste disposal could no longer rely on them and needed to seek new, duplicative approvals from NRC. To the contrary, the 2016 Issue Summary stated clearly that it does not represent a departure from current regulatory requirements and practice. Id. at 3 (JA__)

13 (Page 26 of Total)

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 27 of 67 (emphasis added). It further stated that it require[d] no action or written response from industry. Id. Nor did NRC invite comment.

NRCs 2016 Issue Summary also expressly stated that it did not impose a backfit on the nuclear industry. Id. Significantly, 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 requires NRC to demonstrate that the new or amended regulation or interpretation will result in a substantial increase in safety or security, and that the . . . costs of implementation . . . are justified in view of this increased protection.

Id. § 50.109(a)(3); see also id. § 50.109(c). This analysis is used to determine whether such changes can justifiably be imposed on licensees. Id. § 50.109(c). The Backfitting Rule reflects sound regulatory policy and is critical to ensuring that the imposition of new or amended regulations or interpretations will yield demonstrable safety benefits and are justified in light of their costs. By stating that the 2016 Issue Summary imposed no backfit, NRC further confirmed that the Issue Summary did not alter the regulatory status quo. 2016 Issue Summary 3 (JA__). Licensees took NRCs plain statements at face value and continued to rely on existing Agreement State approvals. See, e.g., Aug. 14, 2018 Letter from STP Nuclear Operating Company to NRC 2 (South Texas Letter) (JA__).

14 (Page 27 of Total)

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 28 of 67 Two years later, however, NRC abruptly changed course. It took enforcement action against NEI member STP Nuclear Operating Company (South Texas),

which had a longstanding state approval for its very low-level waste disposal. After South Texas was informed during a routine safety inspection in 2018 that NRC was considering issuing a minor violation for relying on an approval from the State of Texas for very low-level waste disposal, South Texas promptly sought clarification from NRC. See South Texas Letter (JA__-__). South Texas pointed out that Texas is an Agreement State, South Texas had a state approval, and the 2016 Issue Summary required no action or written response from licensees and was not a backfit. See id. at 1-2 (JA__-__).

In response, NRC took the position that its approval, not that of Texas or any other Agreement State, was required for very low-level waste disposal. NRC thus took the positionfor the first timethat an existing, otherwise sound Agreement State approval could not be relied upon by a licensee. At the same time, however, NRC conceded that South Texas had raised issues with the [2016 Issue Summary]

and with prior guidance, stating that it is evaluating the issue generically to provide further clarity. Oct. 31, 2018 NRC Letter to South Texas 2 (JA__). Given NRCs response, it appeared at that time that NRC might well change course and withdraw its enforcement action against South Texas, especially given the clear incongruity between NRCs new position, its explicit statements that the 2016 Issue Summary 15 (Page 28 of Total)

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 29 of 67 merely maintained the regulatory status quo, and the previous thirty years of regulatory history and industry practice.

NEI supported NRCs proposed reconsideration of its new stance, and challenged any suggestion that the 2016 Issue Summary could be understood to unwind previous Agreement State approvals. See Feb. 28, 2019 Letter from NEI to NRC (JA__-__). NEI also highlighted NRCs statements that the 2016 Issue Summary was strictly voluntary and imposed no backfit. Id. at 9-10 (JA__-__).

Responding to stakeholder comments, NRC held a public meeting on September 6, 2019, attended by industry and Agreement State representatives, to address concerns about NRCs possibly-evolving position on the 2016 Issue Summary and discuss, in NRCs words, a path forward, including a possible update to the 2016 Issue Summary. See NRC, Summary of September 6, 2019 Public Meeting (Oct. 2, 2019) 1-2 (Public Meeting Summary) (JA__-__). At the meetings end, NRC indicated it would issue the response letters by the end of September, id. at 3 (JA__), leaving open the possibility that NRC would clarify that it did not intend to unwind existing Agreement State regulatory jurisdiction over very low-level waste disposal after all.

Confoundingly, however, in September 2019 NRC did not merely double down on its new position regarding approval requirements, it drastically changed the meaning and reach of the 2016 Issue Summary, a mere informational document.

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USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 30 of 67 Specifically, NRC stated it had reviewed the information [NEI] provided and the history of this issue and determined that [the 2016 Issue Summary] correctly stated that any licensees request for approval to dispose of licensed material [under Section 20.2002] must be submitted to the regulatory authority that issued the license for use of the radioactive material. 2019 Letter 1 (JA__).

NRC expressed a completely new legal theory for this regulatory change albeit in one conclusory sentence. In its 2019 Letter, NRC statedcontrary to its own long-established interpretation of the AEA, Part 150, and Section 20.2002 that this requirement is based on NRCs jurisdiction over the operation of nuclear power plants, which cannot be delegated to an Agreement State. Id. (emphasis added). Again, the agency offered no citation or analysis to support its stark new position that very low-level waste disposal is somehow subsumed in the operation of nuclear power plants. Id.

Contrary to the 2016 Issue Summarys plain terms, NRC also indicated that its reinterpretation of Sections 20.2002 and 150.15 was an enforcement matter after all. For those 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. Since this case was filed, however, NRC has brought enforcement action against another licensee that already has Agreement State approvaland NRC has not granted enforcement 17 (Page 30 of Total)

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 31 of 67 discretion. See Hedges Decl. ¶¶ 15, 19-21 (ADD7, 10-12).4 And another licensee fears the same possibility. Weber Decl. ¶ 24 (ADD47-48). NRCs new position expressed nowhere but in NRCs 2019 Letterneither followed nor reflected any rulemaking or other established public process. It is also devoid of any apparent factual basis, supporting legal analysis, or policy rationale.

NEI timely petitioned for judicial review on November 15, 2019. On February 10, 2020, NRC filed a motion to dismiss, claiming that the September 2019 Letter merely restates a prior agency position and is not a final agency order subject to judicial review. See Respts Mot. to Dismiss (Feb. 10, 2020). NEI opposed the motion, and this Court ultimately referred the motion to the merits panel, directing the parties to address the final agency action issue in their merits briefs. See Opp. to Mot. to Dismiss (Mar. 11, 2020); Order (June 2, 2020) (per curiam).

SUMMARY

OF ARGUMENT NRCs September 16, 2019 Letter finally altered the requirements for nuclear power plants to dispose of very low-level waste under the AEA. In promulgating these new requirements, NRC failed to comply with the notice and comment requirements of the APA, failed to give a reasoned explanation for its new policy, and failed to perform a backfitting analysis as required by its own regulations. But 4

NEI submits declarations in support of standing in the separate addendum filed herewith at ADD1-66. See D.C. Cir. R. 28(a)(7).

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USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 32 of 67 even if NRC had not completely failed to comply with these procedural requirements, the 2019 Letter cannot stand substantively, as it exceeds NRCs authority under the AEA and its implementing regulations.

Because the 2019 Letter subjects NEIs members to new approval requirements and enforcement risks, it is a final reviewable agency action. An agency action is final and reviewable when it imposes an obligation and marks the consummation of an administrative process. Adenariwo v. Fed. Mar. Commn, 808 F.3d 74, 78 (D.C. Cir. 2015) (citation omitted). NRCs 2019 Letter meets both of these requirements. The 2019 Letter was the first time that NRC adopted an unequivocal [policy] under which federal approval would be required for the disposal of very low-level waste by plants already operating with valid state approvals, and thus marked the agencys final decision regarding this new requirement. See CropLife America v. EPA, 329 F.3d 876, 884 (D.C. Cir. 2003)

(rejecting agencys argument that petitioners could not bring their claim because agency made similar equivocal arguments in the past).

That NRC published this decision in a letter does not undermine the final nature of that decision. Whereas the 2016 Issue Summary had indicated that no action or written response was required for regulated entities, and that it did not represent a departure from current regulatory requirements and practice, 2016 Issue Summary 3 (JA__), the 2019 Letter stated that federal approval was now mandatory, 19 (Page 32 of Total)

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 33 of 67 see 2019 Letter 1 (JA__). The non-obligatory nature of the 2016 Issue Summary was confirmed by NRCs statement in that document that it did not require any backfitting analysis or evaluation, which would have been required if the agency were imposing new or different interpretations of existing regulations. And while the 2016 Issue Summary referred to developments that were explicitly voluntary, the 2019 Letter was the first time that NRC imposed its new federal approval requirement on the regulated community.

The 2019 Letter has direct and appreciable legal consequences for the regulated community because it requires plants relying on Agreement State very low-level waste disposal approvals to obtain federal approval for the first time.

Agency action has a reviewable legal effect if it creates requirements that states or industry must follow, see 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, see Sackett v. EPA, 566 U.S. 120, 126 (2012);

see also Barrick Goldstrike Mines, Inc. v. Browner, 215 F.3d 45, 50 (D.C. Cir. 2000),

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).

The 2019 Letter does all three. Under the 2019 Letter, reactor licensees must now obtain federal approval, even though numerous licensees have been disposing of very low-level waste pursuant to valid Agreement State approvals for decades.

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USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 34 of 67 Failing to obtain NRC approval opens these licensees to the risk of enforcement action. Alternatively, licensees can avoid the new requirement only by significantly altering their procedures for disposing of very low-level wastea costly practical effect. Weber Decl. ¶ 27 (ADD49-50).

NRCs claim that it may exercise enforcement discretion does not negate these adverse impacts. Even if NRC exercised discretion, plants would still be left open to the risk of enforcement action unless they either obtained NRC approval or changed their very low-level waste disposal procedures. In practice, however, since providing this assurance to consider enforcement discretion, NRC has already levied a violation against another NEI member, Energy Northwest. See Hedges Decl. ¶¶ 19-21 (ADD10-12). Clearly, NRCs 2019 statement that it will consider enforcement discretion in certain cases does not mean that licensees can ignore the new requirements. Reactor licensees must either comply with the 2019 Letters obligations or else risk enforcement action. The 2019 Letter, therefore, was a final and reviewable agency action. See Rhea Lana, Inc. v. Dept of Labor, 824 F.3d 1023, 1030 (D.C. Cir. 2016).

Turning to the merits, NRCs promulgation of the 2019 Letter violated several procedural requirements under the APA, the AEA, and its own rules.

First, by imposing these new licensing requirements without undertaking the notice-and-comment process, NRC violated the APA. See 5 U.S.C. § 553. Before 21 (Page 34 of Total)

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 35 of 67 the 2019 Letter, longstanding regulations permitted the disposal of very low-level waste with only state approval. See 10 C.F.R. § 150.15(a). To amend these regulations, NRC was required by the APA to publish notice in the Federal Register, explain the proposals basis and purpose, and respond to public comments, all in the service of developing a factual record sufficient to justify a new rule. 5 U.S.C.

§§ 551(5), 553(b)-(d); see also Perez v. Mortg. Bankers Assn, 135 S. Ct. 1199, 1206 (2015) (agencies must use the same procedures when they amend or repeal a rule as they used to issue the rule in the first instance). It is uncontested that NRC did none of these things.

Second, the 2019 Letter fails to give a reasoned explanation for the change in NRCs policy and therefore violated the APAs prohibition against arbitrary and capricious policy changes. See FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515-16 (2009). The 2019 Letter (and likewise the 2016 Issue Summary) provides no legal or factual analysis supporting NRCs new approval requirement, or any justification for upending the longstanding reliance of the regulated community on NRCs prior determinations recognizing Agreement State regulation of very low-level waste disposal. See Sterling Decl. ¶ 12 (ADD23-24) (South Texas received an exemption concurrence from the Texas Commission on Environmental Quality in 2008); Weber Decl. ¶ 15 (ADD42) (Arizona Public Service Company received a permit from the Arizona Department of Environmental Quality in 2003); Hedges 22 (Page 35 of Total)

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 36 of 67 Decl. ¶ 15 (ADD7-8) (Washington Energy Facility Site Evaluation Council issued Energy Northwest a disposal permit by Resolutions in 1995 and 2001).

Third, by failing to do a backfitting analysis for the 2019 Letter, NRC violated the backfitting requirement in its own regulations. Under NRCs Backfitting Rule, before it can apply a new rule or a new interpretation of an existing rule to licensees, NRC is required to prepare either a systematic and documented analysis to determine whether imposing the prospective new rule is justified considering its benefits and costs, or a documented evaluation justifying an exception to such an analysis. 10 C.F.R. § 50.109(a)(2)-(4). Here too, it is uncontested that NRC did neither.

Finally, even if NRC had not failed to comply with the requirements of the APA and its own regulations, NRCs new policy cannot stand because it is inconsistent with the plain language of AEA Section 274 and NRCs longstanding interpretation of that provision. AEA Section 274 empowers NRC to transfer regulatory authority over low-level waste disposal to Agreement States by entering 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.

42 U.S.C. § 2021(b) (emphasis added). That is precisely what NRC has done by entering into numerous Section 274 agreements with states and promulgating its Part 23 (Page 36 of Total)

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 37 of 67 150 regulations. NRCs attempt to take back this authority through the 2019 Letter fails as an ultra vires agency action.

NRCs contrary arguments lack merit. NRC posits that it alone has authority to regulate reactor low-level waste disposaldespite existing state agreements long acknowledged by NRCbecause under the AEA, NRC may not give up authority over the operation of nuclear power plants. See 2019 Letter 1 (JA__);

42 U.S.C. § 2021(c)(1) (prohibiting NRC from delegating authority over the construction and operation of nuclear power plants). But this claim is inconsistent with the agencys previously settled, well-reasoned position. That position is based on both the language of the AEA and its implementing regulations, which explicitly distinguish between the construction and operation of nuclear plants, on the one hand, and the disposal of low-level waste, on the other hand. See, e.g.,

42 U.S.C. § 2021(c);10 C.F.R. § 150.15(a)(1) (distinguishing regulatory jurisdiction over power plants from jurisdiction over waste disposal); see also 27 Fed. Reg. at 1351 (Control over the handling and storage of waste at the site of a reactor, including effluent discharge, will be retained by the Commission as a part of the control of reactor operation, meanwhile, states will have control over land burial of low level wastes.).

Given that distinction, NRCs new stance that Section 274 somehow prevents NRC from transferring authority of low-level waste disposal to the states makes no 24 (Page 37 of Total)

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 38 of 67 sense. Indeed, the position implies that NRC has violated its organic statute for thirty years. But NRC properly transferred its authority over low-level waste to Agreement States under the AEA, and in doing so, discontinued its own authority over low-level waste disposal so long as state programs are compliant with federal law. 42 U.S.C. § 2021(j). NRC no longer has authority over low-level waste disposal in Agreement States, absent a finding by NRC that the authority it has already transferred to the Agreement States is inconsistent with public health and safety. Id. Again, it is undisputed that NRC has made no such finding.

Accordingly, and for the reasons that follow, this Court should vacate the agency action at issue and remand to NRC for further consideration.

STANDING NEI has standing to bring this suit. NEI is the policy organization of the nuclear technologies industry. Its members include companies that own or operate nuclear power plants and fuel service companies, among others. This Court has recognized NEI as a proper entity to represent the collective interests of the nuclear power industry. See, e.g., NEI v. EPA, 373 F.3d 1251, 1278-80 (D.C. Cir. 2004)

(holding that NEI had associational and prudential standing to challenge EPA ground water standards on behalf of its members). NEI has associational standing to bring suit in this case because at least one of its members would have standing to sue in its own right, the interests NEI seeks to protect are germane to its purposes, 25 (Page 38 of Total)

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 39 of 67 and neither the claims asserted nor the relief requested requires that an individual NEI member participate in this suit. See Hunt v. Wash. State Apple Advert. Commn, 432 U.S. 333, 342 (1977); Sierra Club v. FERC, 827 F.3d 59, 65 (D.C. Cir. 2016).

NEIs members have suffered, or will suffer, tangible injuries caused by NRCs decision embodied in the 2019 Letter that reactor licensees must obtain NRC approval of requests to use alternate disposal procedures for very low-level waste, even if they already have state authorizations. Without properly invoking its rulemaking or adjudicatory authorityand contrary to its own rules and regulations as well as the AEA and APANRCs 2019 Letter rendered once compliant licensees out of compliance.

NEIs standing is supported by the Declarations of T. Weber (Arizona Public Service Company) (¶¶ 22-28 (ADD45-50)); L. Sterling (South Texas) (¶¶ 17, 23-29 (ADD26, 30-34)); and T. Hedges (Energy Northwest) (¶¶ 19-25 (ADD10-15)).

Simply put, NEI members wish to continue to dispose of very low-level waste in Agreement States using their valid state approvals, but now must expend additional resources to obtain duplicative NRC approvals and alter their waste disposal procedures, or face NRC enforcement action. The tangible result is additional compliance costs and increased regulatory risk with no discernible safety benefit. A favorable decision here would redress those concrete injuries by preserving the status quo that existed before NRC determined in the 2019 Letter that the new 26 (Page 39 of Total)

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 40 of 67 position set forth in the 2016 Issue Summary is binding on licensees who had already obtained Agreement State approval, and the basis for NRC enforcement action.

NEIs interests in this litigationto clarify NRC rules and regulations and ensure NRC follows proper procedure before enacting new, enforceable rulesare germane to NEIs purpose of advancing the nuclear power industrys policy interests. Cf. NEI, 373 F.3d at 1279 (finding that pursuing litigation to speed the licensing of a permanent repository [for nuclear waste] is germane to [NEIs]

purpose (citation omitted)). NEIs petition for review seeks to vacate NRCs determination that compliance with the agencys new very low-level waste disposal requirement is mandatory for all NRC licensees. Neither NEIs claims nor the relief requested require the participation of any individual NEI member in this lawsuit.

STANDARD OF REVIEW This Court reviews agency action challenged under the Hobbs Act for compliance with the APA. See 42 U.S.C. § 2239(b); Honeywell Intl, Inc. v. NRC, 628 F.3d 568, 575-76 (D.C. Cir. 2010); see also Bhd. of Locomotive Engrs &

Trainmen v. Fed. R.R. Admin., No. 18-1235, 2020 WL 5079389, at *26 (D.C. Cir.

Aug. 28, 2020) (In reviewing final orders under the Hobbs Act, this Court applies the familiar standards [of review] set forth in the Administrative Procedure Act.

(alteration in original) (citation omitted)). The APA requires agencies to engage in reasoned decisionmaking, and mandates that the Court set aside agency action that 27 (Page 40 of Total)

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 41 of 67 is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 2020 WL 5079389, at *26 (citation omitted). Among other things, this arbitrary and capricious standard requires the agency to provide a reasoned explanation for any failure to adhere to its own precedents. Honeywell, 628 F.3d at 579 (citation omitted).

ARGUMENT I. NRCS 2019 LETTER CONSTITUTES REVIEWABLE FINAL AGENCY ACTION In its motion to dismiss, NRC claimed that the 2019 Letter does not constitute final agency action subject to judicial review, because it is merely a routine, informational document that simply reaffirms a prior agency position. See Respts Mot. to Dismiss 1-2 (Feb. 10, 2020). Not so. As explained below, the 2019 Letter articulates a new, final agency position with both legal and practical consequences for the regulated industry. NRC cannot be permitted to use the informal method in which it chose to express this final decision as a shield from judicial review.

The Hobbs Act permits review of a final order, 42 U.S.C. § 2239(b), which this Court has held is the equivalent of a final agency action for purposes of determining whether an order is sufficiently final to permit judicial review. See Weaver v. Fed. Motor Carrier Safety Admin., 744 F.3d 142, 146 (D.C. Cir. 2014).

An agency action or order is final where it imposes an obligation, denies a right, or 28 (Page 41 of Total)

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 42 of 67 fixes some legal relationship, usually at the consummation of an administrative process. Adenariwo v. Fed. Mar. Commn, 808 F.3d 74, 78 (D.C. Cir. 2015)

(quoting Natural Res. Def. Council, Inc. 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 agency decision is considered final if it mark[s] the consummation of the agencys decision-making process, is not merely tentative or interlocutory in nature, and is one by which rights or obligations have been determined, or from which legal consequences flow.

520 U.S. 154, 177-78 (1997) (citation omitted).5 The 2019 Letter does both. First, it marks the first time NRC stated unequivocally and conclusively, and to the industry at large, that compliance with the new very low-level waste disposal requirement is mandatory for all NRC licensees. Second, it further makes clear that licensees cannot rely on existing, valid state authorizations, but must seek NRC approval in the absence of enforcement discretion. The 2019 Letter thus satisfies both prongs of the Bennett test for final agency action.

5 Although Bennett involved a challenge to an APA final agency action, this Court has applied the Bennett test in the Hobbs Act final order context. See, e.g.,

Blue Ridge Envtl. Def. League v. NRC, 668 F.3d 747, 753 (D.C. Cir. 2012).

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USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 43 of 67 A. The 2019 Letter Marks the Consummation of NRCs Decisionmaking Final action communicates an agency determination that is definitive, not merely tentative or interlocutory. U.S. Army Corps of Engrs v. Hawkes Co.,

136 S. Ct. 1807, 1813-14 (2016) (citation omitted). There is nothing tentative or interlocutory about the 2019 Letter. NRC will attempt to make much of the fact that its final decision was expressed in a letter, but the fact that the letter was a response to inquiries by [NEI] did not preclude the agency from expressing a final position in that document. Ciba-Geigy Corp. v. EPA, 801 F.2d 430, 436-37 & nn.8-9 (D.C.

Cir. 1986); see also Barrick Goldstrike Mines, 215 F.3d at 50 (That the agency action is embodied in interpretative statements in a rulemaking 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). The 2019 Letter represents the first time that the agency has adopted an unequivocal

[policy]. CropLife America v. EPA, 329 F.3d 876, 884 (D.C. Cir. 2003) (rejecting agencys argument that petitioners are time-barred because agency made similar equivocal arguments in the past).

To be clear, NRC should have provided far more process than that reflected in a letter. But that is a separate defect in NRCs action. NRC cannot now use the fact that its change of position took the form of a short letter to avoid judicial review.

30 (Page 43 of Total)

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 44 of 67 Nothing in the 2019 Letter suggests that NRCs position therein is 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). Nor has NRC claimed this position is anything but final and conclusive. Indeed, since its issuance, NRC has initiated further enforcement action.

B. The 2019 Letter Does Not Simply Restate a Prior NRC Position The 2019 Letter does far more than reiterate a prior NRC position. The final 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 (citation omitted); id. at 49 (preamble, guidance document, and enforcement letter together could crystallize an agency position into final agency action). Until the 2019 Letter, NRCs policy related to very low-level waste disposal had not been settled and was not transparent.

Before the 2019 Letter was issued, NRC held a public meeting with Agreement States and industry participants explicitly to air concerns and devise a proposed path forward to resolve the regulatory confusion surrounding very low-level waste disposal. Public Meeting Summary 2 (JA__). Several parties expressed confusion about NRCs apparent new position that nuclear licensees could no longer rely on Agreement State approvals. Id. at 2-3 (JA__-__). NRC indicated that it continues to develop its path forward and has not reached a decision of the 31 (Page 44 of Total)

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 45 of 67 specific means to do so, but would soon respond to the industrys concerns, thus suggesting that its position on this matter was not yet settled. Id. at 1, 3 (JA__, __).

Shortly after the stakeholder meeting, NRC responded to NEI in the 2019 Letter. NRCs proposed path forward only then took its final form. The 2019 Letter stated: We have reviewed the information you provided and the history of this issue and determined that [the 2016 Issue Summary] correctly stated that NRC licensees would need to seek approval from NRC to dispose of very low-level waste, or face enforcement action. 2019 Letter 1 (JA__). The 2019 Letter was the first time that NRC clearly stated that NRC rather than Agreement State approval for very low-level waste disposal was a mandatory, enforceable regulatory requirement even for licensees with existing, valid Agreement State approvals.

NRCs claim in its motion to dismiss that the 2019 Letter simply echoes a position made plain in its 2016 Issue Summary does not withstand scrutiny. See Respts Mot. to Dismiss 12-13 (Feb. 10, 2020). The 2016 Issue Summary suggested that NRCs policy with respect to very low-level waste disposal might be changing insofar as it seemed to disavow parts of the 1986 Information Notice. However, it also made several unequivocal and reassuring statements informing the industry that no action or written response was required, and that it did not represent a departure from current regulatory requirements and practice. 2016 Issue Summary 3 (JA__). Furthermore, because multiple NRC licensees had standing authorizations 32 (Page 45 of Total)

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 46 of 67 from Agreement States to dispose of very low-level waste at the time of the 2016 Issue Summary, see, e.g., South Texas Letter 2 & Attachments 1-2 (JA__, __-__);

Weber Decl. ¶¶ 15-17 (ADD42-43); Hedges Decl. ¶ 15 (ADD7-8), the Backfitting Rule would have been triggered if the 2016 Issue Summary had required licensees to change their procedures. 10 C.F.R. § 50.109(a)(1). But it did not say state approvals were no longer legally valid; rather, it said there was no backfit. Thus, a reasonable observer would not have perceived a very substantial risk that NRC might several years later construe the informational 2016 Issue Summary to mean what NRC eventually specified in its 2019 Letter. See Dominion Res., Inc. v. FERC, 286 F.3d 586, 589 (D.C. Cir. 2002).

Moreover, the 2019 Letter also offered a brand newand still puzzling legal basis for NRCs new approval requirement, stating for the first time that this requirement is based on NRCs jurisdiction over the operation of nuclear power plants, which cannot be delegated to an Agreement State. 2019 Letter 1 (JA__).

But this new interpretation contravenes the position NRC had long taken with respect to what authority it may and may not delegate under the AEA. While the AEA prohibits NRC from delegating authority over the operation of nuclear power plants, 42 U.S.C. § 2021(c)(1), NRC has never interpreted the disposal of very low-level waste to constitute part of the operation of the plant. See Legal Opinion 1-2 (JA__-__); 1986 Information Notice 1-2 (JA__-__). This position constitutes a 33 (Page 46 of Total)

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 47 of 67 marked change in NRCs interpretation of the AEA and its regulations. In short, between issuance of the 2016 Issue Summary and the 2019 Letter, NRC changed its position concerning both the legal effect of the Issue Summary and the legal basis for the agencys new approval requirement, thereby altering the regulatory landscape for reactor licensees.

C. Direct and Appreciable Legal Consequences Flow from the 2019 Letter Whether an agency action has direct and appreciable legal consequences is a pragmatic inquiry. Hawkes Co., 136 S. Ct. at 1814-15 (citations omitted).

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. Cal. 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. 2000), exposes regulated parties to the possibility of an enforcement action, enhanced fines, or penalties, see Sackett v. EPA, 566 U.S. 120, 126 (2012); Barrick Goldstrike Mines, Inc. v. Browner, 215 F.3d 45, 50 (D.C. Cir. 2000), 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). NRCs 2019 Letter does all three.

The 2019 Letter creates new enforcement risks and imposes new regulatory burdens on licensees. NRCs 2019 Letter imposed new requirements for disposal 34 (Page 47 of Total)

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 48 of 67 approvals that industry must now follow, in stark contrast to the 2016 Issue Summarys explanation that no action is required because it does not represent a departure from current regulatory requirements and practice. See 2016 Issue Summary 3 (JA__); 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 AEA Section 274 and its implementing regulations, licensees in Agreement States needed to seek very low-level waste disposal approval only from their Agreement State. Now, they must obtain NRC approval, even if they already have an Agreement State approval. 2019 Letter 1 (JA__).

The legal effect of this newly-mandatory requirement is further evident from NRCs initial statement that it will consider exercising enforcement discretion for licensees that have relied on existing Agreement State approvals, but only on a case-by-case basis. Id. Enforcement discretion is cold comfort, however, and is necessary only where the agency finds a legal violation in the first place. See generally 42 U.S.C. § 2273(a), (c) (AEA civil and criminal penalties). This statement also implies there are cases in which enforcement discretion will not be exercised. See Barrick Goldstrike Mines, 215 F.3d at 50 (legal consequences flow from the position agency expressed because the regulated party must now keep records and report to [the agency] unless it wishes to risk an enforcement action);

35 (Page 48 of Total)

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 49 of 67 see also Sackett, 566 U.S. at 126 (order had legal effect where it exposed regulated parties to the possibility of an enforcement action and enhanced fines or penalties);

Rhea Lana, Inc. v. Dept 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 petitioners existing legal obligations, the notice potentially subjected petitioner to enhanced penalties for an enforcement action).

And indeed, despite NRCs suggestion that its reference to enforcement action was merely hypothetical, see Reply to Opp. to Mot. to Dismiss 5 (Apr. 2, 2020),

NRC has, since making that suggestion, invoked its new position as the basis for issuing another licensee a violation, which can only be remedied by complying with NRCs dictate of seeking a Section 20.2002 approval. See Hedges Decl. ¶¶ 19-21 (ADD10-12). This is no mere hypothetical exercise to that licensee, Energy Northwest.

The new requirement that licensees must seek NRC approval before disposing of very low-level waste has important implications for NEIs members beyond enforcement risks as well. It also implicates their internal compliance procedures, and creates costs associated with satisfying a new regulatory requirement. See Sterling Decl. ¶¶ 24-29 (ADD31-34) (estimating that compiling an application for NRC authorization, including added analysis of environmental impacts, other potentially affected facilities, and specific procedures to ensure that doses are 36 (Page 49 of Total)

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 50 of 67 maintained as low as reasonably achievable would require 500-1,000 man hours);

Weber Decl. ¶¶ 25-28 (ADD48-50) (similarly estimating that approximately 500 hours0.00579 days <br />0.139 hours <br />8.267196e-4 weeks <br />1.9025e-4 months <br /> of Palo Verde staff time would be needed to compile, review, and approve the Section 20.2002 application); see also CSI Aviation Servs., Inc. v. U.S. Dept of Transp., 637 F.3d 408, 412 (D.C. Cir. 2011) (agency action was final where it imposed an immediate and significant burden).

Accordingly, because the 2019 Letter constitutes both the consummation of

[NRCs] decision making and has significant legal consequences for licensees, there should be no question that it is a final order subject to judicial review.

II. NRC FAILED TO COMPLY WITH REQUIRED NOTICE-AND-COMMENT RULEMAKING PROCEDURES The 2019 Letter stated that the 2016 Issue Summary would have the force and effect of law in NRC enforcement actions. NRC thereby effectively repealed its published rules allowing Agreement States to regulate very low-level waste disposal pursuant to Agreement State requirements analogous to the requirements contained in 10 C.F.R. § 20.2002. In their place, NRC imposed a new substantive requirement that all reactor licensees obtain NRC approval to dispose of very low-level waste, regardless of existing state approvals. But NRC did not provide notice or an opportunity to comment in connection with these changes. In short, NRC created a de facto rule or binding norm that could not properly be promulgated absent the notice-and-comment rulemaking required by § 553 of the APA. Ctr. for Auto 37 (Page 50 of Total)

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 51 of 67 Safety v. Natl Highway Traffic Safety Admin., 452 F.3d 798, 806 (D.C. Cir. 2006).

NRC therefore violated the APA. 5 U.S.C. § 553.

First, it is clear that the approval requirement articulated in the 2019 Letter is contrary to NRCs existing regulations regarding state jurisdiction over the disposal of very low-level waste. AEA Section 274 precludes NRC from transferring to Agreement States regulatory authority over disposal of nuclear wastes that 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. 42 U.S.C. § 2021(c)(4) (emphasis added). By prior regulation, NRC declined to make such a finding with respect to the disposal of all low-level waste, including waste generated by nuclear power plants. See 10 C.F.R. § 150.15(a). The exclusion of low-level waste disposal from Section 150.15(a)(1) was deliberate and unambiguous: NRC decided only to retain regulatory [c]ontrol over the handling and storage of waste at the site of a reactor, including effluent discharge . . . as a part of the control of reactor operation, and determined that states will have control over land burial of low level wastes. 27 Fed. Reg. 1351, 1351 (Feb. 14, 1962).

NRC has now effectively changed that rules division of regulatory responsibility, reasserting jurisdiction over very low-level waste disposal, but without following required procedures. To be sure, NRC could, if it developed an appropriate record, alter these longstanding determinations governing very low-level 38 (Page 51 of Total)

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 52 of 67 waste disposal. But to amend or repeal its current regulations, NRC must publish notice of its proposed action in the Federal Register, explain the proposals basis and purpose, and respond to public comments to develop a sufficient supporting factual record. 5 U.S.C. §§ 551(5), 553(b)-(d); see also Perez v. Mortg. Bankers Assn, 135 S. Ct. 1199, 1206 (2015) (agencies must use the same procedures when they amend or repeal a rule as they used to issue the rule in the first instance). The notice-and-comment requirement allow[s] interested members of the public to communicate information, concerns, and criticisms to the agency during the rule-making process. Conn. Light & Power Co. v. NRC, 673 F.2d 525, 530-31 (D.C.

Cir. 1982). Otherwise, the agency may operate with a one-sided or mistaken picture of the issues at stake in a rule-making. Id. at 530.

NRC itself previously acknowledged the need for a rulemaking in order to modify Section 150.15(a) before it could reclaim from Agreement States regulatory authority over low-level waste disposal, including authority over the disposal of low-level waste generated at nuclear plants. NRCs 1985 Legal Opinion, for example, concluded NRC is not at liberty to vary the clear meaning of its regulations without a rulemaking proceeding, or by issuance of appropriate orders, pursuant to Section 274c. of the [AEA]. Legal Opinion 2 (JA__).

In addition, NRC later published a proposed rule intended to do exactly what NRC did by letter in this case. In 1988, the Commission proposed a rule to reassert 39 (Page 52 of Total)

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 53 of 67 NRCs jurisdiction over onsite disposal of low-level waste generated at reactor sites.

See 53 Fed. Reg. 31,880 (Aug. 22, 1988). NRC later withdrew the proposed rule based in part on the relatively low hazards associated with onsite disposal of this type of radioactive material, and current experience with disposals. See 61 Fed.

Reg. 26,852, 26,853 (May 29, 1996). In other words, after considering public comments, evaluating the radiological hazards, and reviewing industry and Agreement State practices, NRC determined that the Agreement States will maintain jurisdiction over the disposal of low-level radioactive waste on nuclear reactor sites, meaning NRC licensees in Agreement States need not obtain NRC Section 20.2002 approvals. Id.

NRCs previous use of notice-and-comment rulemaking in connection with its 1988 proposed rule on the same subject is striking. Whereas NRC in 1988 satisfied notice-and-comment procedures, its 2019 Letter wrought regulatory change without them. But because the 2019 Letter imposes new substantive obligations on licensees, the NRC decision it embodies is a legislative rule subject to notice-and-comment requirements. See Sierra Club v. EPA, 699 F.3d 530, 533-34 (D.C. Cir.

2012); Am. Mining Congress v. Mine Safety & Health Admin., 995 F.2d 1106, 1108-12 (D.C. Cir. 1993) (a rule has legal effect if in the absence of the rule there would not be an adequate legislative basis for enforcement action or other agency action to confer benefits or ensure the performance of duties, or the rule effectively 40 (Page 53 of Total)

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 54 of 67 amends a prior legislative rule); Mendoza v. Perez, 754 F.3d 1002, 1021 (D.C. Cir.

2014) (A rule is legislative if it . . . adopts a new position inconsistent with existing regulations).6 Because the 2019 Letter altered NRCs existing regulations without following the notice and comment procedure required by law, it violates the APA.

5 U.S.C. §§ 553, 706(2)(A), (D).

III. NRCS NEW INTERPRETATION IS ARBITRARY AND CAPRICIOUS FOR LACK OF REASONED EXPLANATION The 2019 Letter is also arbitrary and capricious. The APAs reasoned decisionmaking requirement ordinarily demands that an agency acknowledge and explain the reasons for a changed interpretation. Verizon v. FCC, 740 F.3d 623, 636 (D.C. Cir. 2014). An agency may not, for example, depart from a prior policy sub silentio or simply disregard rules that are still on the books. FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009). When switching interpretations, an agency must always show that there are good reasons for the new policy. Id.

And in certain circumstanceslike those heremore is required. The Supreme Court has held that the APA requires an agency to provide more substantial 6

Assuming, contrary to fact, that NRCs 2019 Letter did not constitute a legislative rule, NRC still violated its own regulation requiring a 30-day post-promulgation comment opportunity for interpretative rules. See 10 C.F.R.

§ 2.804(e). On their face, these rules admit no exception and having chosen to grant interested persons additional procedural rights in the exercise of [its]

discretion, the agency is bound by its own rules. Union of Concerned Scientists v.

NRC, 711 F.2d 370, 381-82 (D.C. Cir. 1983) (alteration original) (citations omitted).

41 (Page 54 of Total)

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 55 of 67 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. Perez, 135 S. Ct. at 1209 (citation omitted). [I]t is not that further justification is demanded by the mere fact of policy change[,] but that a reasoned explanation is needed for disregarding facts and circumstances that underlay or were engendered by the prior policy. Fox, 556 U.S. at 515-16. Put another way, [i]t would be arbitrary and capricious to ignore such matters. Id. at 515.

The 2019 Letter does not come close to reflecting reasoned decisionmaking.

The 1985 Legal Opinion and 1986 Information Notice conveyed NRCs conclusion that it lacks authority over the disposal of low-level waste from a reactor facility located in an Agreement State. NRC based that conclusion on Section 274s plain language and structure, subsequent Part 150 rulemaking determinations, and 10 C.F.R. § 20.2002s plain language. See supra at 39-40. The 2019 Letter disregards all of that, stating only that NRCs new approval requirement is based on the NRCs jurisdiction over the operation of nuclear power plants, which cannot be delegated to an Agreement State. 2019 Letter 1 (JA__). In a single sentence, NRC thus upended decades of agency policy, but altogether failed to provide a reasoned explanation of the basis for this changed interpretation, in violation of one of the APAs fundamental requirements. See, e.g., Celcom Commcns Corp.

42 (Page 55 of Total)

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 56 of 67

v. FCC, 789 F.2d 67, 71 (D.C. Cir. 1986) (describing reasoned decisionmaking as a fundamental mandate).

Indeed, NRC provided no legal or factual analysis, not even a single citation, to support its contention that low-level waste disposal procedures are considered part of nuclear power plant operation. It did not acknowledge the extensive statutory and regulatory analysis in either the 1985 Legal Opinion or the 1986 Information Notice, much less explain how that prior analysis could be squared with its new conclusion. While an agency may justify its policy choice by explaining why that policy is more consistent with statutory language than alternative policies, it violates the APAs requirement for reasoned decisionmaking when it does not analyze or explain why the statute should be interpreted as the agency suggests.

Encino Motorcars., LLC v. Navarro, 136 S. Ct. 2117, 2127 (2016) (quoting Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 175 (2007)).

Not only was this departure from NRCs longstanding position insufficiently explained, it remains unclear why such a change is be necessary. NRC has not suggested, for example, that Agreement State regulation of very low-level waste disposal poses a safety issue. Indeed, nothing in the record indicates this is the case.

NRC has ample tools to evaluate Agreement State regulation of low-level waste disposal. Specifically, under its Integrated Materials Performance Evaluation Program, NRC already provides comprehensive oversight of Agreement State 43 (Page 56 of Total)

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 57 of 67 programs, including in particular low-level waste disposal programs. These reviews ensure that public health and safety are adequately protected from potential radiological hazards and that Agreement State programs are compatible with NRCs program. If NRC had concerns about Agreement State programs, the Integrated Materials Performance Evaluation Program provides a ready mechanism for identifying and addressing such concerns. But NRC has not identified a need to reverse its position and require reactor licensees to seek NRC approval of very low-level waste disposal procedures in Agreement States.

The industrys longstanding reliance on the previous status quo makes matters worse. See Sterling Decl. ¶ 12 (ADD23-24) (South Texas received an exemption concurrence from the Texas Commission on Environmental Quality in 2008); Weber Decl. ¶ 15 (ADD42) (Arizona Public Service Company received a permit from the Arizona Department of Environmental Quality in 2003); Hedges Decl. ¶ 15 (ADD7-

8) (Washington Energy Facility Site Evaluation Council issued a disposal permit to Energy Northwest by Resolutions in 1995 and 2001). Licensees have developed procedures, entered into contracts, and secured Agreement State approvals for the disposal of very low-level waste in accordance with Agreement State processes.

Requiring these licensees to adapt to NRCs new position will require significant changes to their low-level waste disposal processes and procedures. See Sterling Decl. ¶ 29 (ADD34); Weber Decl. ¶ 27 (ADD49-50); Hedges Decl. ¶ 24 (ADD14-44 (Page 57 of Total)

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 58 of 67 15). Licensees who do not seek NRC approval for their current practices risk enforcement action. See Sterling Decl. ¶¶ 23-24 (ADD30-31); Weber Decl. ¶ 25 (ADD48-49); Hedges Decl. ¶¶ 19-20 (ADD10-11). As the Supreme Court recently reiterated, such reliance interests must be taken into consideration when an agency reverses a prior policy position. See Dept of Homeland Sec. v. Regents of the Univ.

of Cal., 140 S. Ct. 1891, 1913-15 (2020). A summary discussion may suffice in other circumstances, but herein particular because of decades of industry reliance on the [NRCs] prior policythe explanation fell short of the agencys duty to explain why it deemed it necessary to overrule its previous position. Encino Motorcars, 136 S. Ct. at 2126.

In summary, core principles of administrative law dictate that an agency changing its course must supply a reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored. Physicians for Soc. Resp. v. Wheeler, 956 F.3d 634, 647 (D.C. Cir. 2020) (quoting Lone Mountain Processing, Inc. v. Secy of Labor, 709 F.3d 1161, 1164 (D.C. Cir. 2013)). Here, NRC departed from its prior position without citing the relevant statutory and regulatory provisions, without addressing the original rationales for NRCs longstanding contrary interpretation, without providing any factual support for the new interpretation, and without considering the industrys reliance on NRCs prior interpretation. Accordingly, NRCs 2019 Letter was arbitrary and capricious and an 45 (Page 58 of Total)

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 59 of 67 abuse of discretion, violating the APA requirement for reasoned decisionmaking.

5 U.S.C. § 706(2)(A).

IV. NRC FAILED TO PERFORM A REQUIRED BACKFITTING ANALYSIS UNDER ITS OWN REGULATIONS NRC also failed to perform the backfitting analysis required by its own regulations before imposing this new requirement on the regulated community.

NRCs Backfitting Rule requires it to conduct an analysis or evaluation before imposing certain new or amended regulations, or new or different interpretations of unchanged regulations, on licensees. See 10 C.F.R. § 50.109. The 2016 Issue Summary explicitly stated NRC was not backfitting any licensees because it required no action or written response and was strictly voluntary. 2016 Issue Summary 3 (JA__). Without addressing NRCs Backfitting Rule, however, the 2019 Letter reversed course and said licensees must follow the Issue Summary and submit a 10 C.F.R. § 20.2002 application to NRC for approval of very low-level waste disposal procedures or risk enforcement action. See 2019 Letter 1 (JA__).

NRCs failure to perform a backfitting analysis violated agency regulations.

Under its Backfitting Rule, NRC is required to prepare a systematic and documented analysis to determine whether imposing a new regulatory requirement on reactor licensees is justified considering its benefits and costs, or else it must prepare a documented evaluation justifying invocation of a listed exception to the otherwise required systematic analysis. 10 C.F.R. § 50.109(a)(2)-(4); see also Union 46 (Page 59 of Total)

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 60 of 67 of Concerned Scientists v. NRC, 824 F.2d 108, 118-19 (D.C. Cir. 1987) (explaining that the backfit rule derives from NRCs authority under AEA Section 161 to order plants to provide extra-adequate protection, but that the imposition of a new regulatory requirement is only appropriate if the added protection to public health and safety resulting from the backfit justifies the costs of implementation); Consol.

Edison Co. of N.Y. (Indian Point, Unit No. 2), No. CLI-85-6, 21 NRC 1043, 1066-67 (1985) (noting that backfits are permitted only when they offer substantial, additional protection which is required for the public health and safety).

NRC did neither. Yet having chosen to grant interested persons additional procedural rights in the exercise of [its] discretion, the agency is bound by its own rules. Union of Concerned Scientists, 711 F.2d at 381-82 (alteration in original)

(citation omitted). Because NRC failed to follow its own regulations in promulgating the approval requirement in the 2019 Letter, NRCs actions are not in accordance with law. 5 U.S.C. § 706(2)(A), (D).

V. NRCS NEW ASSERTION OF AUTHORITY OVER LOW-LEVEL WASTE DISPOSAL CONTRAVENES THE ATOMIC ENERGY ACT AND ITS IMPLEMENTING REGULATIONS Even if it had not failed to comply with the APA and agency procedural requirements, NRC still violated the AEA and its own regulations implementing relevant sections of the AEA. NRCs 2019 Letter stated that reactor licensees must seek approval to dispose of very low-level waste from NRCnot Agreement 47 (Page 60 of Total)

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 61 of 67 Statesbased on the NRCs jurisdiction over the operation of nuclear power plants, which cannot be delegated to an Agreement State. 2019 Letter 1 (JA__). Given the brevity and lack of clarity of this language, one is left to guess what precisely such a statement means. But whatever it may mean, NRC has ignored the unambiguous language and structure of the AEA and its implementing regulations.

A. NRC Has Not Issued Any Valid Regulation or Order Precluding Agreement State Regulation of Low-Level Waste Disposal NRCs new basis to assert regulatory authority appears to be based on AEA Section 274(c)(1), which precludes the transfer to Agreement States of authority over the operation of reactor facilities. 42 U.S.C. § 2021(c)(1). Section 274(c)(1),

however, does not cover disposal of waste, and thus provides no authority for NRCs position that its exclusive jurisdiction over reactor operations precludes Agreement State regulation of very low-level waste disposal.

Section 274 must be read as a whole. Because disposal is clearly addressed in Section 274 subparagraphs (c)(3)-(4)not in subparagraph (c)(1)the term construction and operation in subparagraph (c)(1) cannot reasonably be read to include the disposal of nuclear waste, and thus cannot be read to preclude Agreement State authority over the disposal of very low-level waste from reactor facilities. Significantly, NRC has twice concluded, during separate rulemaking efforts conducted 26 years apart (in 1962 and 1988), that AEA Section 274 permits the Commission to transfer its regulatory authority over low-level waste disposal to 48 (Page 61 of Total)

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 62 of 67 Agreement States. See supra at 8-9, 39-40. NRCs instant attempt to casually discard those prior (and legally sound) determinations on the ground that very low-level waste disposal is tantamount to the operation of nuclear power plants over which NRC jurisdiction cannot be delegated to an Agreement State strains credulity.

Had Congress intended to impose a blanket limitation on the ability of Agreement States to regulate the disposal of low-level wastes from nuclear plants, it could have said so plainly. Instead, Congress provided NRC with the authority to determine, by regulation or order, which wastes present sufficient hazards such that NRC must retain regulatory jurisdiction over their disposal. 42 U.S.C. § 2021(c)(4).

But NRC cannot, under the terms of the AEA, simply reclaim jurisdiction over very low-level waste disposal and displace settled approvals with Agreement States without a regulation or order referenced in subparagraph (c)(4). And NRC has never determined by regulation or order that it must retain authority over very low-level waste generated by power reactors. Indeed, for decades, NRC took the opposite position: that it may relinquish authority over the disposal of very low-level waste generated by power reactors to the Agreement States. See supra at 6-9.

Furthermore, NRCs regulations implementing this provision of the AEA unambiguously contemplate Agreement State regulation of low-level waste disposal from reactors. That is, those regulations draw a distinction between the need for NRC to maintain authority to regulate reactor operationswhich includes the 49 (Page 62 of Total)

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 63 of 67 handling and storage of low-level waste at the reactor facility siteand the ability of the Agreement States to maintain authority to regulate low-level waste disposal.

See 10 C.F.R. § 150.15(a)(1), (5). As explained above, this has long been the case:

the AEC, in promulgating these implementing regulations, expressly classified storage and handling, as part of the operation of plant facilities, but treated disposal separately. See supra at 8-9. Had NRC endeavored to retain jurisdiction over the disposal of mere low-level waste generated by nuclear plant operators, even though the AEAs Agreement State regime does not require NRC to do so, it could have said so in its regulations. It did not. By ignoring this critical distinction and taking the opposite view in the 2019 Letter, NRC acted contrary not only to AEA Section 274 but also its own regulations at 10 C.F.R. § 150.15(a).

B. NRC Regulations Unambiguously Treat Disposal Procedures as a Disposal Activity and Not as Reactor Operations To eschew the plain language of Section 274 and NRC regulations at 10 C.F.R. § 150.15(a), NRC appears committed to the position that a different regulation, 10 C.F.R. § 20.2002, concerns nuclear power plant operations, not disposal. See 2019 Letter 1 (JA__). That is, NRC seems to contend that because Agreement States may not be delegated regulatory authority over nuclear power plant operations, plant operators must seek NRC approval under Section 20.2002 to dispose of very low-level waste within Agreement States. Id. But NRCs apparent implication that Section 20.2002 is relevant to reactor operations rather than disposal 50 (Page 63 of Total)

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 64 of 67 is contrary to that regulations unambiguous language and thus entitled to no deference. See Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019) ([A] court should not afford Auer deference unless the regulation is genuinely ambiguous.).

By its plain terms, Section 20.2002 deals with disposal procedures. It is also found in Part 20, Subpart K, titled Waste Disposal. In addition, a Section 20.2002 application must address the risks and conditions for waste disposal, as well as the environment surrounding the disposal site and dose limits for disposal. See 10 C.F.R. § 20.2002(a)-(d). Similarly, NRCs guidance for Section 20.2002 approvals directs applicants to evaluate the safety of disposal (e.g.,

by performing disposal dose assessments). See 85 Fed. Reg. 19,966 (Apr. 9, 2020).

In addition, NRC has historically classified Section 20.2002 as a disposal regulation rather than one addressing reactor operations. For example, NRCs 1986 Information Notice treated Section 20.2002 as dealing with disposal rather than reactor operations. See 1986 Information Notice 1 (JA__) (concluding that if a reactor facility was in an Agreement State, the NRC did not have a legal basis for performing the [Section 20.2002] reviews and granting approvals). Likewise, NRC considered Section 20.2002 a disposal regulation when it proposed, and then withdrew, the 1988 rule that would have reasserted NRC jurisdiction over low-level waste generated and disposed of at reactor sites in Agreement States. See 61 Fed.

Reg. at 26,852-53. Indeed, NRC would not have needed to initiate a rulemaking 51 (Page 64 of Total)

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 65 of 67 reasserting jurisdiction over the approval of reactor licensee low-level waste disposal procedures if Section 20.2002 applied to reactor operations because the AEA and NRC regulations already provide NRC with exclusive regulatory jurisdiction over reactor operations. See 42 U.S.C. § 2021(c)(1); 10 C.F.R.

§ 150.15(a)(1).

In short, nothing in Section 20.2002s plain language, structure, history, or related guidance suggests that provision applies to nuclear reactor operations. Given the absence of any ambiguity over whether Section 20.2002 concerns disposal, the Court need not afford Auer deference to the agencys apparent reinterpretation of that provision in the 2019 Letter. See Kisor, 139 S. Ct. at 2415. Allowing NRC to use the 2019 Letter as a vehicle to reinterpret Section 20.2002, an unambiguous regulation, would be to permit the agency, under the guise of interpreting a regulation to create de facto a new regulation. Christensen v. Harris Cty., 529 U.S.

576, 588 (2000). Because Section 20.2002 unambiguously applies to disposal, the Court should vacate NRCs action recasting that provision as one that regulates operations.

CONCLUSION NRCs 2019 Letter has direct and appreciable legal consequences on NEIs members. In reversing decades of agency practice, NRC failed to provide notice and 52 (Page 65 of Total)

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 66 of 67 an opportunity for comment, and its final decision lacked reasoned explanation.

NRC also acted in contravention of its organic statute and regulations.

The Court should therefore vacate NRCs unlawful action, and remand the issue for further consideration. In the meantime, NRC must adhere to its prior interpretations of 10 C.F.R. §§ 20.2002, 150.10, and 150.15. Allowing NRC licensees to continue to rely on existing Agreement State approvals will not create any disruption; it would simply maintain the prior accepted practice pending NRC compliance with the AEA, APA, and agency regulations. For the reasons explained above, NEI respectfully requests that this Court vacate NRCs determination that compliance with the agencys new very low-level waste disposal requirement is mandatory for all NRC licensees, and remand to NRC for further consideration.

Dated: September 30, 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 53 (Page 66 of Total)

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 67 of 67 CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT, TYPEFACE REQUIREMENTS, AND TYPE-STYLE REQUIREMENTS

1. This document complies with the type-volume limit of Federal Rule of Appellate Procedure 32(a)(7)(B) because, excluding the parts of the document exempted by Federal Rule of Appellate Procedure P. 32(f) and Circuit Rule 32(e)(1),

this document contains 12,430 words, as determined by the word-count function of Microsoft Word 2016.

2. This document complies with the typeface requirements of Federal Rule of Appellate Procedure P. 32(a)(5) and the type-style requirements of Federal Rule of Appellate Procedure 32(a)(6) because this document has been prepared in a proportionally spaced typeface using Microsoft Word 2016 in 14-point Times New Roman Font.

/s/ Steven P. Croley Steven P. Croley (Page 67 of Total)

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 1 of 78 ORAL ARGUMENT NOT YET SCHEDULED No. 19-1240 United States Court of Appeals for the District of Columbia Circuit NUCLEAR ENERGY INSTITUTE, Petitioner, v.

U.S. NUCLEAR REGULATORY COMMISSION and the UNITED STATES OF AMERICA, Respondents.

On Petition for Review of an Action of the United States Nuclear Regulatory Commission SEPARATE ADDENDUM OF PETITIONER NUCLEAR ENERGY INSTITUTE Ellen C. Ginsberg Steven P. Croley Jonathan M. Rund LATHAM & WATKINS LLP Jerry Bonanno 555 Eleventh Street, NW Martin J. ONeill Suite 1000 Nuclear Energy Institute Washington, DC 20004 1201 F Street, NW (202) 637-2200 Suite 1100 steven.croley@lw.com Washington, DC 20004-1218 (202) 739-8000 Counsel for Petitioner September 30, 2020 (Page 68 of Total)

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 2 of 78 TABLE OF CONTENTS ADDENDUM PURSUANT TO RULE 28(a)(7)

Description Page Declaration of Tony L. Hedges (Energy Northwest) (September 28, ADD1 2020)

Declaration of Lance Sterling (STP Nuclear Operating Company) ADD17 (September 28, 2020)

Declaration of Thomas N. Weber (Arizona Public Service ADD35 Company), with Attachments 1 & 2 (September 29, 2020)

ADDENDUM PURSUANT TO RULE 28(f)

Description Page 42 U.S.C. § 2021(b), (c) ADD67 10 C.F.R. § 20.2001 ADD69 10 C.F.R. § 20.2002 ADD70 10 C.F.R. § 50.109(a)(1)-(4) ADD71 10 C.F.R. § 150.10 ADD73 10 C.F.R. § 150.15 ADD74 (Page 69 of Total)

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 3 of 78 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT NUCLEAR ENERGY INSTITUTE, Petitioner, Case No. 19-1240 V.

U.S. NUCLEAR REGULATORY COMMISSION and the UNITED STATES OF AMERICA, Respondents.

DECLARATION OF TONY L. HEDGES I, Tony Hedges, swear or affirm under penalty of perjury, the following:

1. I am the Chemistry/Radiological Services Manager at Columbia Generating Station ("Columbia"), a single-unit boiling water General Electric Type 5 nuclear reactor owned and operated by Energy Northwest. My business address is 76 N Power Plant Loop, Richland, WA 99354. Energy Northwest is a member of the Nuclear Energy Institute ("NEI"), a professional trade association that represents the nuclear energy industry on policy, regulatory, and other matters affecting the industry. NEI is the petitioner in this case.

2. I have worked in the commercial nuclear power industry for more than 28 years, initially as Radiation Protection Instructor with Constellation Energy. I began (Page 70 of Total) ADD1

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 4 of 78 my career at Energy Northwest in August 2017 in the Chemistry Department as the Chemistry/Radiation Protection Support Supervisor. In August 2019, I assumed my current role of Chemistry/Radiological Services Manager. I am responsible for the overall leadership, direction, and management of the Columbia Chemistry and Radiological Services organizations, including oversight of the disposal of very low-level radioactive waste ("VLL W"). I hold a B.S. degree in Information Technology.

3. I am providing this Declaration in support of NEI' s Petition for Review of the U.S. Nuclear Regulatory Commission's ("NRC") decision, in a September 16, 2019 letter to NEI, 1 to give new legal effect to a non-binding NRC guidance document, Regulatory Issue Summary 2016-11, "Requests to Dispose of Very Low-Level Radioactive Waste Pursuant to 10 CFR 20.2002" (Nov. 13, 2016) ("Issue Summary"). 2 Energy Northwest understands the September 16, 2019 letter to require NRC licensees to obtain NRC approval for the disposal of VLL W, even when their facilities are located in NRC Agreement States. Historically, Energy Northwest has disposed of certain VLLW pursuant to an approval from the State of Washington, issued in accordance with Washington's status as an Agreement State under Section 274 of the Atomic Energy Act of 1954, as amended ("AEA"), 42 1 Letter from John W. Lubinski, U.S. NRC, to Ellen C. Ginsberg, NEI at 1 (Sept. 16, 2019) ("September 2019 NRC Letter"), available at https://www.nrc.gov/docs/ML1922/ML19224A774.pdf 2 Available at https://www.nrc.gov/docs/ML 1600/ML16007A488.pdf.

2 (Page 71 of Total) ADD2

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 5 of 78 U.S.C. § 2021, and related NRC regulations in 10 C.F.R. Part 150. VLLW is waste that contains some residual radioactivity that is a small fraction of the "Class A" limits specified in 10 C.F .R. Part 61, "Licensing Requirements for Land Disposal of Radioactive Waste," and which may be safely disposed of in hazardous or solid waste landfills that, while strictly regulated, are not AEA-licensed facilities and do not require the extensive controls specified in 10 C.F.R. Part 61 or equivalent Agreement State regulations. 3

4. As explained below, the need to comply with NRC's new regulatory position, which the agency has not tied to any safety concerns, will impose additional regulatory burden and substantial costs on Energy Northwest. In this Declaration, I provide information concerning: (1) Energy Northwest; (2) the management of waste at Columbia; (3) the State regulatory approvals that authorize the disposal of certain types of VLL W (including cooling tower and spray pond sediment containing trace amounts of radioactivity) in the Columbia sediment disposal cells; (4) the source of the State of Washington's regulatory jurisdiction over VLLW disposal; and (5) the practical impacts of the NRC's newly-asserted jurisdiction over VLL W by NRC reactor licensees on Columbia operations.

3 See U.S. NRC, "Very Low-Level Waste" (updated Apr. 30, 2020),

https://www.nrc.gov/waste/llw-disposal/very-llw.html) (accessed Sept. 26, 2020).

3 (Page 72 of Total) ADD3

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 6 of 78 A. Overview of Columbia Generating Station

5. Columbia is owned and operated by Energy Northwest, which is a municipal corporation and joint operating agency of the State of Washington.

Energy Northwest operates a number of non-carbon emitting electrical generating facilities, including the approximately 1,200 megawatt electrical-rated Columbia nuclear power station, which provide electric service throughout the Pacific Northwest to over 1.5 million customers.

6. Columbia is located on the U.S. Department of Energy's Hanford Site in Benton County, Washington, roughly 10 miles north of Richland. Columbia began commercial operations in May 1984 and is authorized to operate through 2043 pursuant to the facility's NRC-renewed operating license. Columbia is the sole nuclear power station in the State of Washington and accounts for about 8 percent of the State's carbon-free electricity generation.

7. The Columbia site spans approximately 1,089 acres. The site infrastructure includes office buildings, two incomplete power plants that were abandoned during the construction process (referred to as WNP-1 and WNP-4), the electric generating unit and cooling towers, standby service-water spray ponds (open air concrete containment structures), plant operation and maintenance warehouses, and administration buildings.

4 (Page 73 of Total) ADD4

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 7 of 78

8. The generating facility consists of one boiling water reactor, housed within the reactor building, and six cooling towers. The Columbia site also houses the Independent Spent Fuel Storage Installation, an above-ground concrete storage pad housing spent fuel storage dry casks surrounded by a security fence; railroad tracks and roadways; fire protection and security facilities; control room simulators and other training facilities; and emergency facilities.

9. Columbia's water system is supplied directly by the Columbia River, which bounds the Columbia site to the east. Once Columbia River water enters Columbia's circulating water system, it is supplemented with sodium hypochlorite and sodium bromide to retard biological growth; other chemical additives are used to control corrosion and scale.

10. Columbia also operates five lined evaporation ponds; two unlined standby service water spray ponds; and sediment disposal cells, which serve for the disposal of the spray pond and the cooling tower sediments that are contaminated with low levels of radioactivity.

B. Management of Radioactive and Nonradi.oactive Waste at Columbia

11. The operation of nuclear power plants produces radioactive materials.

Radioactivity results primarily from the fission of uranium fuel. The radioactive materials produced by the fission of uranium fuel generally fall into two categories:

fission products and activation products.

5 (Page 74 of Total) ADD5

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 8 of 78

12. Under normal operating conditions, fission products are located in, and remain inside, the used uranium fuel rods. Activation products are located in the reactor coolant system. As a result, these activation products are more readily transported by the reactor coolant system to any support system that connects to the reactor coolant system. Activation products are the source of most radiological contamination at nuclear power plants, potentially including radiological contamination in cooling tower water. These activation products are released to the environment through the plant ventilation systems in accordance with NRC requirements and plant procedures. These controlled releases are monitored and the activity released is documented in various reports. This released activity is then recaptured through deposition on surfaces surrounding the plant.

13. Columbia's radioactive waste system collects, treats, and disposes of radioactive and potentially radioactive wastes that are byproducts of plant operations. Operating procedures for the radioactive waste system ensure that radioactive materials are safely processed and discharged from the plant as controlled releases or effluents within the limits set forth in NRC regulations in 10 C.F.R. Part 20, "Standards for Protection Against Radiation."

14. Columbia also generates solid wastes as part of routine plant maintenance, cleaning activities, and plant operations. Columbia generates solid waste that is classified as either nonhazardous or hazardous waste, as defined by the Resource 6

(Page 75 of Total) ADD6

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 9 of 78 Conservation and Recovery Act ("RCRA"). The nonhazardous solid waste includes office trash, construction debris, kitchen waste, and other rubbish material from routine plant maintenance and operations and cleaning activities. One of these solid wastes is algae and other biological organisms present in the cooling towers and in the spray ponds; when the material is removed during cleaning, it is referred to as "sediment." These sediments are slightly contaminated with very low levels of radionuclides and thus are designated as VLL W.

C. Source of the State of Washington's Regulatory Jurisdiction Over VLLW Disposal

15. The State of Washington, through the Washington Energy Facility Site Evaluation Council ("Site Evaluation Council"), long has regulated the disposal of sediments from the Columbia cooling towers and spray ponds pursuant to Site Evaluation Council Resolutions, originally through Site Evaluation Council Resolution No. 278, which was adopted in May 1995 and was replaced by Site Evaluation Council Resolution No. 299 in August 2001. Resolution No. 278 permitted "the onsite disposal of slightly contaminated sediment cleaned from the Columbia Generating Station circulating cooling water system," and Resolution No.

299 expanded "the scope of plant cooling water systems covered by the disposal authorization." Copies of Site Evaluation Council Resolution Nos. 278 and 299 are available at https ://www.efsec. wa. gov/council-information/resolutions (under "Resolutions - Columbia Generating Station"). Pursuant to these Resolutions, the 7

(Page 76 of Total) ADD7

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 10 of 78 State of Washington has permitted Energy Northwest to dispose of certain sediments containing very low levels of radionuclides (i.e., VLL W) from the Columbia facility onsite since 1995.

16. It bears emphasis that in approving Resolution No. 299 in 2001, the Site Evaluation Council stated that "[t]he Departments of Health and Ecology have reviewed the Energy Northwest application and supplemental information and found that the proposed disposal plan for service water cooling system sediments provides sufficient protections for public health and the environment." 4 It further noted that

"[t]his judgement is also based on a review of the five years of experience with onsite disposal of circulating cooling water system sediments." 5 Importantly, the Site Evaluation Council has limited the annual incremental dose directly attributable to disposal of cooling tower and service water spray pond sediments to 15 millirem per year (i.e., the maximum dose above background that an individual would receive spending 2000 hours0.0231 days <br />0.556 hours <br />0.00331 weeks <br />7.61e-4 months <br /> at the disposal site). 6 As the Site Evaluation Council noted, actual doses are maintained as low as reasonably achievable and thus are even lower than 15 millirem per year. 7 To put this in perspective, Americans on average receive 4 Site Evaluation Council Resolution No. 299 at 1.

5 Id.

6 Resolution No. 299, Attachment 1 at 1-2.

7 Resolution No. 299, Attachment 1 at 1.

8 (Page 77 of Total) ADD8

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 11 of 78 a total radiation dose of about 620 millirem each year from natural background radiation and man-made (e.g., medical, industrial) radiation sources combined. 8 The NRC's total effective dose equivalent limit to individual members of the public from licensed plant operation is 100 millirem per year (exclusive of background and man-made radiation sources). 9

17. The State of Washington's authority to regulate the onsite disposal of radiologically-contaminated sediment at Columbia stems from its status as an Agreement State under AEA Section 274. The State and the Atomic Energy Commission (NRC's predecessor) entered into a Section 274 Agreement in December 1966, with an effective date of December 31, 1966. 10 The Section 274 Agreement was amended in March 1982. 11

18. Notably, when the NRC renewed the Columbia reactor operating license in 2012, it acknowledged Washington's jurisdiction over sediment disposal:

Periodic cleaning of the cooling tower basins and the standby service water ponds results in sediment that contains low levels ofradioactivity.

The sediment is disposed of onsite in a dedicated area south of the cooling towers. The State of Washington Energy Facility Site Evaluation Council allows the onsite disposal of the contaminated 8 See NRC, "Doses in Our Daily Lives" (updated Apr. 27, 2020)

(https://www.nrc.gov/about-nrc/radiation/around-us/doses-daily-lives.html)

(accessed on Sept. 27, 2020).

9 See 10 C.F.R. § 20.1301.

10 See 31 Fed. Reg. 16,375 (Dec. 22, 1966).

11 See 82 Fed. Reg. 7061 (March 15, 1982).

9 (Page 78 of Total) ADD9

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 12 of 78 sediment as long as the material meets specific concentration limits and monitoring requirements. 12 D. Impacts of the NRC's Newly-Asserted Jurisdiction Over VLL W Disposal

19. Given the division of regulatory authority between the State of Washington and the NRC that has existed for decades regarding onsite sediment disposal at Columbia, Energy Northwest is very concerned by the position taken by NRC in its September 2019 letter to NEI. According to that letter, "any licensee's request for approval to dispose oflicensed material under ... 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. 13 Thus, Energy Northwest understands this letter to require NRC reactor licensees to now seek disposal approval for VLL W from the NRC in addition to Agreement States, contrary to the decades of prior practice described above. Moreover, this letter states that the NRC will consider "enforcement discretion" on a case-by-case basis for those licensees who have relied on Agreement State approvals in the past. 14 This necessarily implies that there are some instances in which the agency will not exercise enforcement 12 NUREG-1437, Supplement 47, "Generic Environmental Impact Statement for License Renewal of Nuclear Plants: Regarding Columbia Generating Station -

Final Report," at 2-7 (Mar. 2012), available at https://www.nrc.gov/reading-rm/doc-collections/nuregs/staff/sr 143 7/supplement4 7/.

13 September 2019 NRC Letter at 1 (emphasis added).

14 Id.

10 (Page 79 of Total) ADD10

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 13 of 78 discretion. Section 20.2002 of the NRC's regulations provides that licensees may seek NRC approval of proposed procedures, not otherwise authorized in 10 C.F .R.

Part 20, "to dispose of licensed material generated in the licensee's activities." 15

20. As noted above, Energy Northwest has long relied on Agreement State approval for its VLLW disposal activities. In November 2019, however, consistent with the NRC's newly stated regulatory position in the September 2019 NRC Letter, the NRC' s Region IV conducted a Radiation Protection inspection at Columbia and subsequently issued a Minor Violation for Energy Northwest's disposal of the cooling tower and spray pond sediment without NRC approval pursuant to 10 C.F .R.

§ 20.2002. The NRC has not exercised enforcement discretion to date.

21. Minor Violations are "those that are less significant than a SL [Severity Level] IV violation." 16 A Severity Level IV Violation is itself defined as a violation that "resulted in no or relatively inappreciable potential safety or security consequences," but which "created the potential of more than minor safety or security consequences." 17 Thus, Minor Violations "do not warrant enforcement action and are not normally documented in inspection reports." 18 Nevertheless, 15 10 C.F.R. § 20.2002.

16 NRC Enforcement Policy, at 12, 82 (Jan. 15, 2020), available at https://www.nrc.gov/docs/ML 193 5/ML19352E92 l .pdf.

17 Id. at 12.

18 Id. at 12, 82.

11 (Page 80 of Total) ADD11

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 14 of 78 despite having no or almost no appreciable safety significance, Minor Violations "must be corrected," or more severe consequences for the licensee could result. 19 Specifically, a licensee must enter the minor violation in its Corrective Action Program, i.e., its internal, procedurally-established process for tracking, evaluating, and resolving deficiencies. 20 The Corrective Action Program is both required by the NRC and subject to NRC inspection under 10 C.F.R. Part 50. 21 Energy Northwest entered a Condition Report in its Corrective Action Program on April 14, 2020, and has been working to resolve the Minor Violation since that time.

22. Specifically, to address the Minor Violation, Energy Northwest is drafting an application to the NRC, requesting permission for onsite disposal of the VLL W at issue pursuant to 10 C.F .R. § 20.2002, even though it already has disposal approval from the State's Site Evaluation Council, previously through Resolution No. 278 (closed), and now through Resolution No. 299 (current). Until Energy Northwest submits the application and the NRC authorizes the disposal, Energy Northwest is at risk of further NRC enforcement action on this issue. As the NRC's Enforcement Policy states, "if a licensee refuses to correct a minor violation within 19 Id. See also NRC Enforcement Manual, Revision 11, at 87 (Oct. 1, 2019),

available at https://www.nrc.gov/docs/ML1927/ML19274C228 .pdf (noting that

"[m ]inor violations are, by their very nature, minor issues with little or no safety consequences", but that "licensees must correct these minor violations").

20 Id. at 15, 81.

21 10 C.F.R. Part 50, Appendix B, Criterion XVI ("Corrective Action").

12 (Page 81 of Total) ADD12

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 15 of 78 a reasonable time such that it willfully continues, the violation should be considered more than minor," and "[l]icenses are expected to take significant remedial action in responding to willful violations commensurate with the circumstances."22 Otherwise, significant enforcement action against the licensee could result.

Furthermore, the NRC may refer willful violations of NRC requirements to the U.S.

Department of Justice for a prosecutorial determination. 23 Thus, absent the NRC's exercise of enforcement discretion, simply leaving the alleged Minor Violation unaddressed is not a viable option from Energy Northwest's perspective.

23. Energy Northwest's need to comply with the NRC's new mandate has imposed additional regulatory and cost burdens. These additional burdens appear unwarranted as a health and safety matter given that: (1) Energy Northwest has relied on valid State authorizations for the disposal of the VLLW at issue for 25 years; (2) the NRC previously has acknowledged those authorizations and not identified any related safety or environmental concerns; and (3) a Minor Violation is by definition one that has no appreciable potential safety or security consequences. In preparing to obtain the newly-required Section 20.2002 disposal authorization from the NRC, Energy Northwest staff have needed to compile and review the technical information 22 NRC Enforcement Policy, at 11.

23 See Memorandum of Understanding Between the Nuclear Regulatory Commission and the Department of Justice, 53 Fed. Reg. 50,317, 50,318 (Dec.

14, 1988).

13 (Page 82 of Total) ADD13

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 16 of 78 necessary to support the application. As specified in Section 20.2002 and related NRC guidance, the application must include, at a minimum: (1) a description of the waste containing licensed material to be disposed of, including the physical and chemical properties important to risk evaluation, and the proposed manner and conditions of waste disposal; (2) an analysis and evaluation of pertinent information on the nature of the environment; (3) the nature and location of other potentially affected licensed and unlicensed facilities; and (4) quantitative analyses and specific procedures to ensure that doses are maintained as low as reasonably achievable. 24

24. I estimate that more than 200 hours0.00231 days <br />0.0556 hours <br />3.306878e-4 weeks <br />7.61e-5 months <br /> of Energy Northwest staff time have been spent in preparing the Section 20.2002 application to date, and Energy Northwest has not yet submitted the application to the NRC. After the application is submitted, Energy Northwest likely will need to respond in writing to NRC requests for additional information and engage in other interactions with NRC staff.

Energy Northwest has estimated a cost of $150,000 for application preparation and review, inclusive of staff time and consultant costs. The company also will be required to pay the regulatory services fees charged by the NRC pursuant to 24 10 C.F.R. 20.2002(a)-(d). See also NRC, "Guidance for the Reviews of Proposed Disposal Procedures and Transfers of Radioactive Material Under 10 CFR 20.2002 and 10 CFR 40.13(a)" at 14-18 (Apr. 2020)," available at https://www.nrc.gov/docs/MLl 829/MLl 8296A068.pdf.

14 (Page 83 of Total) ADD14

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 17 of 78 10 C.F.R. Part 170 for the agency's detailed technical review of the application, which is estimated to require about 9 to 12 months. I would anticipate the NRC's application review fees to be comparable in amount (i.e., at least $100,000) and possibly greater than Energy Northwest's estimated internal costs. Thus, I estimate that the total licensing-related costs incurred by Energy Northwest could exceed

$250,000. Assuming the NRC approves the Section 20.2002 disposal request, it still could impose additional technical or administrative conditions that would create additional regulatory burden and related costs for Columbia.

25. In lieu of seeking a Section 20.2002 approval, another option for Energy Northwest would be to dispose of cooling tower and spray pond sediments in a low-level radioactive waste disposal facility licensed under 10 C.F .R. Part 61 (or equivalent Agreement State regulations). However, the resulting increase in disposal costs would be substantial. Based on current Columbia contracts with offsite low-level radioactive waste disposal facilities, Energy Northwest estimates disposal costs alone (i.e., excluding labor, container, and transportation costs) to be approximately $25,000,000 to ship the sediments currently disposed of in the sediment cells, and approximately $700,000 per year moving forward for disposal of new sediments. This is not an economically viable option for Energy Northwest.

26. As the foregoing suggests, the new position taken by the NRC in its September 16, 2019 letter creates considerable regulatory uncertainty for Energy 15 (Page 84 of Total) ADD15

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 18 of 78 Northwest. For decades, Energy Northwest has relied on authorization from the State of Washington's Site Evaluation Council to dispose of cooling tower and spray pond sediments that contain, or may contain, trace amounts of radioactive material.

The NRC now evidently expects Energy Northwest to seek NRC approval under IO C.F .R. § 20.2002 in addition to its current State authorization. Until this issue is resolved, Energy Northwest, in effect, is subject to dual regulation by the State of Washington and the NRC with regard to the disposal of VLL W in the Sediment Disposal Cells. This outcome is neither consistent with the State's and NRC's Section 274 Agreement nor commercially practicable for Energy Northwest.

I declare under penalty of perjury pursuant to 28 U.S.C. § 1746 that the foregoing is true and correct. Further, I declare that I have personal knowledge regarding the facts set forth above and that I am competent and authorized to file this Declaration.

Executed on September 28, 2020.

Tony L. Hedges Chemistry/Radiological Services Manager Energy Northwest 16 (Page 85 of Total) ADD16

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 19 of 78 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT NUCLEAR ENERGY INSTITUTE, Petitioner, Case No. 19-1240 v.

U.S. NUCLEAR REGULATORY COMMISSION and the UNITED STATES OF AMERICA, Respondents.

DECLARATION OF LANCE STERLING I, Lance Sterling, swear or affirm under penalty of perjury, the following:

1. I am the Regulatory Affairs Manager at South Texas Project Units 1 and 2 (South Texas Project), a two-unit pressurized water reactor nuclear power station operated by STP Nuclear Operating Company (STPNOC). My business address is South Texas Project, P.O. Box 289, Wadsworth, TX 77483. STPNOC is a member of the Nuclear Energy Institute (NEI), a professional trade association that represents the nuclear energy industry on policy, regulatory, and other matters affecting the industry. NEI is the petitioner in this case.

2. I have worked at South Texas Project for 27 years. From 1993 through 2006, I worked as a Power Plant Operator and a Licensed Senior Reactor Operator. From 2003 through 2008, I also served as an Operations Support Supervisor.

(Page 86 of Total) ADD17

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 20 of 78 Subsequently, I held positions as Work Week Manager (2009-2011) and Procedure Group Supervisor (2012-2014). I served as Licensing Supervisor from February 2014 through February 2019. I served as Performance Improvement Manager until June 2019, at which time I began my current position as Regulatory Affairs Manager.

In my current role, I am responsible for managing, directing, and developing Regulatory Affairs and Environmental personnel to ensure regulatory requirements (including waste disposal requirements) are adhered to at STP. I hold a B.S. degree in Nuclear Engineering Technology from Thomas Edison State University.

3. I am providing this Declaration in support of NEIs Petition for Review of the NRCs decision, in a September 16, 2019, letter to NEI,1 to give new legal effect to a non-binding NRC guidance document, Regulatory Issue Summary 2016-11, Requests to Dispose of Very Low-Level Radioactive Waste Pursuant to 10 CFR 20.2002 (Nov. 13, 2016) (Issue Summary).2 Very low-level radioactive waste (VLLW) describes the lowest end of the low-level waste spectrum. It is waste that contains some residual radioactivity, but at levels so low the waste may be safely disposed in hazardous or industrial solid waste landfills. That is, because VLLW possesses only a small fraction of the lowest (i.e., Class A) radionuclide 1

Letter from John W. Lubinski, U.S. NRC, to Ellen C. Ginsberg, NEI at 1 (Sept. 16, 2019) (September 2019 NRC Letter), available at https://www.nrc.gov/docs/ML1922/ML19224A774.pdf.

2 Available at https://www.nrc.gov/docs/ML1600/ML16007A488.pdf.

2 (Page 87 of Total) ADD18

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 21 of 78 concentration limits specified in NRC regulations in 10 CFR Part 61 (Licensing Requirements for Land Disposal of Radioactive Waste), it does not require disposal in a Part 61-licensed low-level radioactive waste disposal facility.3

4. STPNOC understands the September 2019 NRC Letter to require NRC reactor (10 C.F.R. Part 50) licensees to obtain approval from the NRC for the disposal of VLLW, even when their facilities are located in NRC Agreement States.

Historically, STPNOC has disposed of certain VLLW pursuant to an approval from the State of Texas, issued in accordance with Texass status as an Agreement State under Section 274 of the Atomic Energy Act of 1954, as amended (AEA), 42 U.S.C. § 2021, and related NRC regulations in 10 C.F.R. Part 150. As I explain below, NRCs new regulatory position will impose substantial cost on STPNOC in terms of the staff hours and financial resources that STPNOC will need to expend to come into compliance.

5. Since 2008, STPNOC has shipped certain VLLW generated at South Texas Project to an industrial solid waste landfill in Texas pursuant to an exemption granted by the State of Texas. Although STPNOC received the Issue Summary in 2016, the NRC stated therein that it was not requiring any action or written response 3

See U.S. NRC, Very Low-Level Waste (updated Apr. 30, 2020),

https://www.nrc.gov/waste/llw-disposal/very-llw.html) (accessed Sept. 28, 2020).

3 (Page 88 of Total) ADD19

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 22 of 78 from licensees or imposing a regulatory backfit.4 However, during a routine safety inspection performed less than two years later, the NRC issued a Minor Violation because, while STPNOC had a continuing exemption from the State of Texas, it did not have a separate NRC approval to dispose of the VLLW at an offsite industrial landfill. Although the NRC decided to exercise enforcement discretion at the time, STPNOC cannot simply presume that the NRC will exercise enforcement discretion indefinitely, especially given the NRCs determination in its September 16, 2019 letter to NEI that reactor licensees must seek NRC approval for the disposal of VLLW associated with NRC-licensed activities.5 Thus, STPNOC is concerned that it may now need to take additional actions (e.g., prepare a Section 20.2002 approval request) or risk further NRC enforcement action.

6. In this Declaration, I provide information concerning: (1) STPNOC and South Texas Project operations; (2) the State of Texas regulatory authorization for offsite disposal of VLLW from South Texas Project in an industrial solid waste landfill; (3) the source of Texas regulatory jurisdiction over VLLW disposal; and (4) the cost and resource impacts on the South Texas Project of the NRCs newly-asserted jurisdiction over VLLW. This information is intended to help the Court 4

Issue Summary at 3.

5 September 2019 NRC Letter, at 1.

4 (Page 89 of Total) ADD20

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 23 of 78 understand the nature of the current dispute and how its resolution directly affects STPNOC and South Texas Project.

A. Overview of STPNOC and South Texas Project Operations

7. The South Texas Project is located on 12,220 acres in Matagorda County, Texas, approximately 15 miles southwest of Bay City along the west bank of the Colorado River. The South Texas Project is owned by NRG South Texas LP, the City of Austin, and the City Public Service Board of San Antonio as tenants in common. Houston Lighting & Power Company was the original operator of the South Texas Project and was responsible for the engineering, design, licensing, construction, startup, and initial commercial operation of the two-unit facility. In 1997, STPNOC, the current NRC-licensed operator, assumed operational control of the South Texas Project.

8. The South Texas Project consists of two Westinghouse pressurized water nuclear reactors. Unit 1 commenced full commercial operation in August 1988, and Unit 2 began full commercial operation in June 1989. On September 28, 2017, the NRC approved the South Texas Projects request to extend the operating licenses for those units through 2047 and 2048, respectively. The two units currently produce approximately 2,700 megawatts of electricity in total. STPNOC is the largest employer and source of revenue for Matagorda County.

5 (Page 90 of Total) ADD21

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 24 of 78 B. State of Texas Regulatory Approval for Offsite Disposal of VLLW from South Texas Project in an Industrial Solid Waste Landfill

9. South Texas Project uses liquid, gaseous, and solid waste processing systems to collect and treat, as needed, radioactive materials that are produced as by-products of plant operations. Radioactive materials in liquid and gaseous effluents (i.e., controlled releases from the station) are reduced to levels that ensure that they comply with NRC radiation protection regulations in 10 C.F.R. Part 20, and that doses are as low as is reasonably achievable in accordance 10 C.F.R. Part 50.

Radioactive waste is stored within plant buildings (with restricted access and radiation shielding) until it is shipped offsite for further processing by a vendor or disposal, or both.

10. Among the nonhazardous solid wastes generated at South Texas Project during regular plant maintenance, cleaning activities, and normal operations are dewatered sludge or sanitary sludge removed from the station 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 sometimes contain trace amounts of radioactive materials such as tritium and gamma-emitting radioisotopes and thus are considered VLLW. These wastes constitute the VLLW for which STPNOC has a standing State of Texas approval to dispose of in an industrial solid waste landfill.

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USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 25 of 78

11. In general, Resource Conservation and Recovery Act (RCRA) waste regulations govern the disposal of solid (nonhazardous) and hazardous waste. See generally 40 C.F.R. Parts 239 through 299. The Texas Commission on Environmental Quality administers the Texas Solid Waste Disposal Act and also the federal RCRA program in Texas. Texas regulations address the identification, generation, minimization, transportation, and final treatment, storage or disposal of hazardous and nonhazardous solid waste.6

12. Since 2008, STPNOC has shipped VLLW to the Blue Ridge Landfill in Fresno, Texas (which is just south of Houston) pursuant to a March 7, 2008, exemption granted by the Texas Commission on Environmental Quality.7 The Blue Ridge Landfill is permitted by the Texas Commission on Environmental Quality as a Type I municipal/industrial solid waste landfill that can accept Class 1, Class 2, and Class 3 non-hazardous industrial solid waste, including VLLW. The Texas Commission on Environmental Qualitys exemption concurrence requires STPNOC to sample the VLLW to verify that tritium and other radionuclide levels do not 6

See generally Title 30, Texas Administrative Code (TAC), Chapter 330 (Municipal Solid Waste) and Chapter 335 (Industrial Solid Waste and Municipal Hazardous Waste).

7 See Letter from Hans Weger, Texas Commission on Environmental Quality, to R. A. Gangluff, STPNOC (Mar. 7, 2008), appended as Attachment 2 to the Letter from Michael Murray, STPNOC, to Brian Holian, NRC (Aug. 14, 2018)

(https://www.nrc.gov/docs/ML1822/ML18226A352.pdf).

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USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 26 of 78 exceed the limits found in applicable Texas regulations before sending the waste to the landfill.8 C. Source of the State of Texas Regulatory Jurisdiction over VLLW Disposal

13. The Texas Commission on Environmental Quality oversees all aspects of industrial and municipal hazardous waste, nonhazardous industrial solid waste, sewage sludge, and low-level radioactive waste disposal activities in Texas. The State of Texass authority to regulate low-level radioactive waste (including VLLW) stems from its status as an Agreement State under Section 274 of the Atomic Energy Act. Texas and the Atomic Energy Commission (NRCs predecessor agency) entered into a Section 274 Agreement in 1963, which was amended in 1982.9

14. Under Texas Health and Safety Code Chapter 401 and the State of Texas Agreement State regulations, certain radioactive materials can be exempted from radioactive material licensing requirements as exempt-concentration or exempt-quantity materials. The authorization and requirement concerning exempt materials are found in Section 401.106(a) of the Texas Health and Safety Code. Texas regulations at 25 TAC § 289.251(e) establish exempt concentrations and quantity 8

See id.

9 See Notice of Agreement with the State of Texas, 28 Fed. Reg. 531 (Jan. 19, 1963); State of Texas; Discontinuance of Certain Regulatory Authority and Responsibility Within the State, 47 Fed. Reg. 15,186 (Apr. 8, 1982).

8 (Page 93 of Total) ADD24

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 27 of 78 limits for radioactive material other than source material. Radionuclide concentrations and quantities below these limits do not represent a hazard to the public or environment, such that the materials may be deemed exempt from the States radioactive material licensing requirements. The criteria that materials containing radioactivity must meet to qualify for such an exemption are found mainly in 25 TAC §§ 289.251 and 289.259.

15. Due to their exempt status, these materials do not need to be sent to a facility that is specifically licensed for low-level radioactive waste disposal and, pursuant to Texas regulations, can be disposed of in an authorized solid waste disposal facility (i.e., a landfill that accepts Class 1 and Class 2 nonhazardous industrial waste) or a RCRA hazardous waste disposal facility. Texas issues these exemption concurrences pursuant to 30 TAC § 336.5 (Exemptions), an NRC-approved Agreement State regulation that addresses both materials exempted by rule and materials exempted on a case-by-case basis. The disposal facilities receiving such exempt concentrations or quantities of radionuclides (i.e., VLLW) also are subject to various Texas Commission on Environmental Quality permitting and approval requirements. As discussed in paragraph 12, -supra,- - - on March 7, 2008, the Texas Commission on Environmental Quality provided such an exemption concurrence to STPNOC for the specific South Texas Project VLLW streams described above.

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USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 28 of 78 D. The NRCs Change in Position and Related Enforcement Action Against STPNOC

16. During a 2018 NRC Radiation Safety team inspection at South Texas Project, NRC inspectors reviewed shipments of exempt-quantity waste that STPNOC had shipped to the Blue Ridge Landfill pursuant to the March 7, 2008, State exemption concurrence discussed above. The reviewed shipments had been included in STPNOCs 2017 Annual Radioactive Effluent Release Report submitted to the NRC on April 18, 2018. That report indicated that STPNOC had made four truck shipments of Low Level Exempt Quantities of waste per [its] Texas Commission on Environmental Quality exemption to [an] industrial landfill.10

17. During the inspection, NRC personnel informed STPNOC that the NRC was considering issuing a Minor Violation because, while the State of Texas had concurred with STPNOCs method of disposal of the VLLW as exempt quantities, the NRC had not issued a separate approval. This caught STPNOC completely by surprise, because STPNOC had a valid exemption from the Texas Commission on Environmental Quality, which is authorized to grant such exemptions under 30 TAC § 336.5.

10 South Texas Project Units 1 and 2 2017 Radioactive Effluent Release Report, at 6-4 (Apr. 18, 2018), https://www.nrc.gov/docs/ML1811/ML18115A137.pdf.

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USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 29 of 78

18. As a result, STPNOC sent a letter to the NRCs Acting Director of the Office of Nuclear Reactor Regulation requesting 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 NRCs change in position not be applied retroactively to STPNOCs existing agreement with the State of Texas.11 STPNOC also noted that the NRCs new position was contrary to the agency guidance provided in Information Notice 86-90, Requests to Dispose of Very Low-Level Radioactive Waste Pursuant to 10 CFR 20.302 (Nov. 3, 1986).12 Finally, STPNOC pointed out that the 2016 Issue Summary stated that it required no action or written response from licensees and was not a backfit pursuant to any of the NRCs backfitting or issue finality provisions.13

19. By letter dated October 31, 2018, the NRC responded to STPNOCs August 14, 2018, letter, assertingagain to STPNOCs surprisethat, despite having an exemption concurrence to dispose of VLLW from the State of Texas, STPNOC 11 See Letter from Michael Murray, STPNOC, to Brian Holian, NRC, at 1 (Aug.

14, 2018), available at https://www.nrc.gov/docs/ML1822/ML18226A352.pdf.

12 Id. at 2 (citing Information Notice 86-90, Requests to Dispose of Very Low-Level Radioactive Waste Pursuant to 10 CFR 20.302 (Nov, 3, 1986), available at https://www.nrc.gov/docs/ML0312/ML031250358.pdf).

13 Id. (quoting Issue Summary at 3).

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USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 30 of 78 likewise needed to seek approval to dispose of VLLW from the NRC.14 This is contrary to the previous 10 years of NRC practice, in which STPNOC only needed authorization (i.e., the exemption concurrence) from Texas to dispose of VLLW in an industrial solid waste landfill.

20. In support of its position, the NRC cited the 2016 Issue Summary for the notion that 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, and that the NRC is the regulatory authority to grant approvals for disposal procedures under 10 CFR 20.2002 for [South Texas Project].15 STPNOC, however, never understood the Issue Summary to require NRC disposal approval for existing reactor waste streams that already are being disposed of pursuant to valid state authorizations. The RIS stated that it was voluntary and required no specific action.16 Therefore, STPNOC did not understand the RIS to require it to seek disposal approval from the NRC pursuant to 10 C.F.R. § 20.2002 or otherwise alter its state-approved VLLW disposal process.

14 See Letter from Craig G. Erlanger, NRC, to G. T. Powell, STPNOC, at 1 (Oct.

31, 2018), available at https://www.nrc.gov/docs/ML1826/ML18260A250.pdf (October 2018 NRC Letter).

15 Id. at 2.

16 Issue Summary at 1, 2.

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USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 31 of 78

21. The NRC stated that it was evaluating generically the issue STPNOC had raised in order to provide further clarity about whether NRC licensees with Agreement State approvals nevertheless need NRC approval to dispose of waste.17 NRC also stated that, given the low safety significance of the alleged non-compliance with 10 C.F.R. § 20.2002, it had decided to exercise enforcement discretion for past and ongoing non-compliance associated with this issue in accordance with Section 3.5 of the NRC Enforcement Policy.18

22. The NRC further noted that [o]nce a resolution path is determined, the NRC will contact STPNOC to provide additional information.19 Now, nearly two years later, the NRC has stated in the September 2019 Letter that NRC licenseeslike STPNOCmust seek disposal approval from NRC, and that the NRC will only exercise enforcement discretion on a case-by-case basis.20 Given the determination in the September 2019 NRC Letter that compliance with the Issue Summary is both mandatory and an enforcement matter, and the previously-issued Minor Violation, STPNOC is concerned that it could lose the enforcement discretion NRC previously 17 October 2018 NRC Letter at 2 (STPNOC has raised issues associated with the

[2016 Issue Summary] and with prior guidance. The NRC is evaluating the issue generically to provide further clarity.)

18 Id.

19 Id.

20 September 2019 Letter at 1.

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USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 32 of 78 granted it on this issue. Even if the NRC does not issue a written Notice of Violation (see 10 C.F.R. § 2.201) to STPNOC, a Minor Violation still requires timely corrective action by a licensee. The failure to correct a Minor Violation within a reasonable time may be viewed by the NRC as a willful violation, for which

[l]icenses are expected to take significant remedial action . . . commensurate with the circumstances.21 E. Practical Impacts of the NRCs Newly-Asserted Jurisdiction Over Offsite Disposal of VLLW by STPNOC

23. When the NRC first apprised STPNOC of the alleged Minor Violation, STPNOC suspended its practice of shipping exempt-quantity waste offsite for disposal, and began storing the material at issue onsite pending resolution of this matter. However, South Texas Project had sufficient storage capacity available to accommodate exempt-quantity waste (i.e., VLLW) only until October 2018, at which point it needed to obtain extra storage capacity or begin shipping exempted quantity waste to a Part 61 LLW disposal facility. The cost of temporary storage was approximately $1350. This cost was associated with rental of storage containers for sewage sludge. Accordingly, when the NRC decided to exercise enforcement discretion, STPNOC resumed shipments of the exempt-quantity waste streams for 21 NRC Enforcement Policy, at 11 (Jan. 15, 2020), available at https://www.nrc.gov/docs/ML1935/ML19352E921.pdf.

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USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 33 of 78 offsite disposal at the Blue Ridge Landfill, as authorized by its State of Texas exemption concurrence.

24. The NRCs exercise of enforcement discretion, however, is only a temporary measure, and does not obviate the practical problems STPNOC now faces in light of the NRCs conclusion in the September 2019 Letter that compliance with the Issue Summary is an enforcement matter. Thus, in order to avoid a possible enforcement action, STPNOCs present options appear very limited, and will result in increased regulatory burden and additional monetary costs for STPNOC.

25. One option would be to prepare and submit a Section 20.2002 disposal authorization request to the NRC. This is not a small undertaking, insofar as Section 20.2002 requires that an application include, at a minimum: (1) a description of the waste containing licensed material to be disposed of, including the physical and chemical properties important to risk evaluation, and the proposed manner and conditions of waste disposal; (2) an analysis and evaluation of pertinent information on the nature of the environment; (3) the nature and location of other potentially affected licensed and unlicensed facilities; and (4) quantitative analyses and specific procedures to ensure that doses are maintained as low as reasonably achievable and within the dose limits specified in 10 C.F.R. Part 20.22 In addition, as part of its application review, the NRC typically issues requests for additional information that 22 10 C.F.R. § 20.2002(a)-(d).

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USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 34 of 78 require written responses from, and related discussions with, the applicant. The NRC uses this information, in addition to that contained in the application, to prepare its Safety Evaluation Report.

26. Based on my experience as both a Licensing Supervisor and Regulatory Affairs Manager, I estimate that internally preparing, reviewing, and approving the Section 20.2002 application before its submittal to the NRC could require 500 -

1,000 South Texas Project personnel hours. This would include tasks (not all inclusive) for data collection and review, any necessary studies/surveys, dose evaluations or other technical analyses in addition to application preparation, review and approval. These activities require participation and coordination by multiple departments, including, for example, Licensing, Chemistry, Environmental, and Health Physics. This also may require the help of outside entities (contractors) to aid in conducting and evaluating the tasks mentioned above. STPNOC also would need to respond in writing to any NRC requests for additional information.

27. Notably, when the NRC issued updated guidance earlier this year concerning its review of Section 20.2002 alternative disposal requests,23 it also issued a regulatory analysis document that assesses the relative benefits and costs of 23 See NRC, Guidance for the Reviews of Proposed Disposal Procedures and Transfers of Radioactive Material Under 10 CFR 20.2002 and 10 CFR 40.13(a)

(Apr. 2020), https://www.nrc.gov/docs/ML1829/ML18296A068.pdf.

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USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 35 of 78 issuing the updated guidance document.24 In the regulatory analysis, the NRC staff assumes that applicants preparation of alternative disposal requests would take on average about 1,262 hours0.00303 days <br />0.0728 hours <br />4.332011e-4 weeks <br />9.9691e-5 months <br />, and that preparing responses to NRC requests for additional information would require more than 270 hours0.00313 days <br />0.075 hours <br />4.464286e-4 weeks <br />1.02735e-4 months <br />.25 As discussed above, STPNOC estimates that it would take 500 - 1000 staff hours to prepare an application for a reactor site of STPNOCs size. In addition, STPNOC estimates another 250 - 300 hours0.00347 days <br />0.0833 hours <br />4.960317e-4 weeks <br />1.1415e-4 months <br /> to respond to NRCs requests for follow-up information, depending on the number of requests. This would cost approximately $72,000 -

$126,000 based on the range of hours listed above.

28. Moreover, the costs of preparing the application for an applicant like STPNOC are in addition to the fees charged by the NRC to the applicant for licensing and regulatory services. Those services may include, for example, performing an acceptance review of the application for docketing; providing public notice of the request; conducting a technical review of the request, including issuing requests for additional information and reviewing responses thereto; preparing a Safety Evaluation Report and Environmental Assessment; coordinating with State regulatory agencies and disposal site operators, as needed; and conducting public 24 See NRC, Regulatory Analysis for Issuing a Guidance Document for the Review of Proposed Disposal Procedures and Transfers of Radioactive Material under 10 CFR 20.2002 and 10 CFR 40.13(a) (Apr. 2020), available at https://www.nrc.gov/docs/ML2007/ML20072L323.pdf.

25 See id. at 12, 17.

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USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 36 of 78 meetings or other outreach. A projected cost, to STP, for fees charged by the NRC would be roughly $250,000. ln total, the cost to prepare the application, together with the licensing and regulatory costs, would be roughly $322,000 to $376,000.

29. Another potential option for STPNOC would be to begin shipping exempt-quantity wastes to a low-level radioactive waste di sposal facility licensed under l O C.F.R. Part 61 or equivalent Agreement State regulations. However, this option would present substantial logistical and financial hardship to the station. Based on the historical data for a typical year of shipments, I estimate that shipping the exempt-quantity wastes to a disposal facility licensed under 10 C.F.R. Part 61 or equivalent Agreement State regulations (as opposed to an industrial landfil l) would increase STPNOC's disposal costs for those wastes by roughly $163,000 per year.

I declare under penalty of perjury pursuant to 28 U.S.C. § 1746 that the foregoing is true and correct. Further, I declare that I have personal kno\,vledge regarding the facts set forth above and that I am competent and authorized to fi le- this Declaration.

Executed on September 28, 2020.

Regulatory Affairs Manager South Texas Project Units l and 2 18 (Page 103 of Total) ADD34

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 37 of 78 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT NUCLEAR ENERGY INSTITUTE, Petitioner, Case No. 19-1240 v.

U.S. NUCLEAR REGULATORY COMMISSION and the UNITED STATES OF AMERICA, Respondents.

DECLARATION OF THOMAS N. WEBER I, Thomas N. Weber, swear or affirm under penalty of perjury, the following:

1. I am the Nuclear Regulatory Affairs Director at Palo Verde Nuclear Generating Station (Palo Verde), a three-unit pressurized water nuclear reactor power station co-owned and operated by Arizona Public Service Company (APS).

My business address is 5801 S. Wintersburg Rd, Tonopah, AZ 85354. APS is a member of the Nuclear Energy Institute (NEI), a professional trade association that represents the nuclear energy industry on policy, regulatory, and other matters affecting the industry. NEI is the petitioner in this case.

2. I have worked in the commercial nuclear power industry for more than 40 years, initially as a design engineer and field construction engineer for an Engineering firm. I began my career at APS in 1986 in the Engineering Department.

1 (Page 104 of Total) ADD35

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 38 of 78 I transferred to the Nuclear Regulatory Affairs Department in 1993 where I have assumed positions of greater responsibility. I have been in my current role of Nuclear Regulatory Affairs Director since 2018. In this capacity, I oversee Palo Verde interactions with the U.S. Nuclear Regulatory Commission (NRC) associated with Licensing, Compliance, and Environmental activities. I serve as a member of the site Corrective Action Review Board, the Plant Review Board, and the 10 CFR Part 21 Review Board. I hold a B.S. degree in Physics and an M.S.

degree in Mechanical Engineering.

3. I am providing this Declaration in support of NEIs Petition for Review of the NRCs decision, in a September 16, 2019, letter to NEI,1 to give new legal effect to a non-binding NRC guidance document, Regulatory Issue Summary 2016-11, Requests to Dispose of Very Low-Level Radioactive Waste Pursuant to 10 CFR 20.2002 (Nov. 13, 2016) (Issue Summary).2 APS understands the September 16, 2019 letter to require NRC licensees to obtain NRC approval for the disposal of very low-level radioactive waste (VLLW), even when their facilities are located in NRC Agreement States. Historically, Agreement States, including Arizona, have 1

Letter from John W. Lubinski, U.S. NRC, to Ellen C. Ginsberg, NEI at 1 (Sept. 16, 2019) (September 2019 NRC Letter), available at https://www.nrc.gov/docs/ML1922/ML19224A774.pdf.

2 Available at https://www.nrc.gov/docs/ML1600/ML16007A488.pdf.

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USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 39 of 78 regulated VLLW disposal pursuant to their written agreements with the NRC under Section 274 of the Atomic Energy Act of 1954, as amended (AEA), 42 U.S.C.

§ 2021, and NRC regulations in 10 C.F.R. Part 150. VLLW is waste that contains some residual radioactivity that is a small fraction of the Class A limits specified in 10 C.F.R. Part 61, Licensing Requirements for Land Disposal of Radioactive Waste, and which may be safely disposed of in hazardous or solid waste landfills without the need for the extensive controls specified in Part 61 or equivalent state regulations.3

4. NRCs new regulatory position will impose substantial cost on APS in terms of the staff hours and financial resources that APS will need to expend to come into compliance. In this Declaration, I provide information concerning: (1) APS and the major Palo Verde facilities; (2) the management of waste at Palo Verde; (3) the State regulatory approvals that authorize the disposal of certain types of sludge (including cooling water sludge that may contain trace amounts of radioactivity) in the Palo Verde Sludge Disposal Landfill; (4) the source of Arizonas regulatory jurisdiction over VLLW disposal; and (5) the practical impacts of the NRCs newly-asserted 3

See U.S. NRC, Very Low-Level Waste (updated Apr. 30, 2020),

https://www.nrc.gov/waste/llw-disposal/very-llw.html) (accessed Sept. 26, 2020).

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USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 40 of 78 jurisdiction over VLLW disposal by NRC reactor licensees on Palo Verde operations.

A. Overview of APS and Palo Verde Facilities

5. APS is a wholly-owned subsidiary of Pinnacle West Capital Corporation, an investor-owned electric utility holding company based in Phoenix, Arizona. As a vertically-integrated electric utility, APS provides either retail or wholesale electric service to most of the State of Arizona, about 1.2 million customers in total. APS owns a 29.1 percent tenant-in-common interest and holds both operating and possession rights in the NRC licenses for Palo Verde Units 1, 2, and 3. Thus, APS is the NRC-licensed operator and a licensed co-owner of all three units.

6. Palo Verde is located in Maricopa County, Tonopah, Arizona, approximately 50 miles west of the City of Phoenix. Palo Verde began commercial operations between January 1986 (Unit 1) and January 1988 (Unit 3), and is authorized to operate well into the 2040s pursuant to the facilitys NRC-renewed operating licenses. As the largest nuclear power station in the United States by net generation (nearly 4,000 megawatts-electric total), Palo Verde is the largest producer of clean-air energy in the nation, serving more than 4 million people in the Southwest, generating more than 32 million megawatt-hours of electric power annually, and accounting for about 70 percent of the State of Arizonas carbon-free electricity generation.

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USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 41 of 78

7. The Palo Verde site spans approximately 4,280 acres. The site buildings and adjacent developed areas occupy approximately 720 acres. There are roughly 780 surface acres of water on the site in various large ponds. The facility comprises electric generating units and cooling towers, solid waste handling and storage facilities, wastewater containment facilities (i.e., surface impoundments) for cooling tower blowdown and other plant effluents, a package wastewater treatment plant, an advanced water treatment plant (referred to as the Water Reclamation Facility or Water Resources Facility), water storage reservoirs, plant operation and maintenance warehouses, and administration buildings.

8. The generating facility consists of three separate, identical pressurized water reactors each equipped with three cooling towers. The Palo Verde site also includes hazardous waste storage areas; low-level radioactive waste interim storage facilities; railroad and road facilities; fire protection and security facilities; control room simulators and other training facilities; and emergency facilities.

9. Palo Verdes water systems are supplied by two sources. The main source is wastewater effluent, which is acquired through agreements with two Phoenix area wastewater treatment plants. Once it reaches the Palo Verde site, this effluent undergoes additional treatment at the Water Reclamation Facility to meet the stations water quality requirements. The main function of the Water Reclamation Facility, which also treats industrial process wastewater from plant operations, is to 5

(Page 108 of Total) ADD39

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 42 of 78 provide makeup cooling water. The other, secondary source of water at Palo Verde is several onsite production wells, which supply groundwater for use in plant fire protection, demineralized, and domestic water systems, as well as for dust control.

10. APS operates numerous onsite surface impoundments at Palo Verde, including three lined Evaporation Ponds and two lined Water Storage Reservoirs. It also operates a Rubbish Landfill and a Sludge Disposal Landfill on site, the latter of which is described further below.

B. Management of Radioactive and Nonradioactive Waste at Palo Verde

11. The operation of nuclear power plants produces radioactive materials.

Radioactivity results primarily from the fission of uranium fuel. The radioactive materials produced by the fission of uranium fuel generally fall into two categories:

fission products and activation products.

12. Under normal operating conditions, fission products are located and remain inside the used uranium fuel rods. In contrast, activation products are located in the reactor coolant system. Because these activation products are located in the reactor coolant system, they are more readily transported by the reactor coolant system to any support system that connects to the reactor coolant system. Activation products (including tritium) are the source of most radiological contamination at nuclear plants, potentially including radiological contamination in cooling tower water.

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USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 43 of 78

13. Palo Verdes radioactive waste system collects, treats, stores, and disposes of radioactive and potentially radioactive solid, liquid, and gaseous wastes that are byproducts of plant operations. Operating procedures for the radioactive waste system ensure that any radioactive materials are safely processed, such that any liquid and gaseous effluents discharged from the station as controlled releases comply with the regulatory limits set forth in NRC regulations in 10 C.F.R. Part 20, Standards for Protection Against Radiation.

14. Palo Verde also generates solid wastes as part of routine plant maintenance, cleaning activities, and plant operations. Palo Verde generates solid waste that is classified as either nonhazardous or hazardous, as defined by the Resource Conservation and Recovery Act (RCRA). The nonhazardous solid waste includes office trash, construction debris, kitchen waste, and other rubbish material from routine plant maintenance, operations and cleaning activities. It also includes sludge material, including wastewater treatment process sludge and cooling tower sludge that are disposed of in the onsite Sludge Disposal Landfill. Given the potential presence of activation products in cooling tower water, the cooling tower sludge also may contain trace quantities of radioactive material. For that reason, APS has obtained State of Arizona approval to dispose of the cooling tower sludge as VLLW in the Sludge Disposal Landfill.

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USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 44 of 78 C. State Regulatory Authorizations for the Palo Verde Sludge Disposal Landfill

15. Palo Verdes operation of certain surface impoundments, the Sludge Disposal Landfill, and the Rubbish Landfill is authorized by area-wide Aquifer Protection Permit No. P-100388 (Aquifer Protection Permit) issued by the Arizona Department of Environmental Quality in December 2003, as subsequently amended.

Relevant excerpts from the Aquifer Protection Permit are provided in Attachment 1 hereto. The Aquifer Protection Permit addresses the design, construction, operation, and closure requirements for the permit-regulated facilities, including the Sludge Disposal Landfill. The monitoring and compliance activities required by the Permit to protect the aquifer near Palo Verde are documented in annual reports to the Arizona Department of Environmental Quality that include the results of groundwater monitoring, impoundment monitoring, sludge monitoring, and compliance status, and document maintenance and repair activities for the surface impoundments over the past year.

16. The 213-acre Sludge Disposal Landfill is located on the east-central portion of the Palo Verde Site and operated in accordance with Arizona Revised Statutes (A.R.S.) §49-762.07(E) and (F). It is an active, unlined solid waste disposal facility used for the surface drying and landfilling of sludge from the Water Reclamation Facility and the cooling towers. The sludge is deposited by the area-8 (Page 111 of Total) ADD42

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 45 of 78 fill method and covered with one foot of soil with each application. The sludge from the cooling towers is physically set apart from the sludge from the Water Reclamation Facility, so there is no mixing of the two types of sludge. Based on the last 10 years of data, APS places (on average) about 800 cubic yards of cooling tower sludge in the Sludge Disposal Landfill each year.

17. Given the potential presence of radionuclides in the cooling tower sludge from normal station operations, APS possesses Special Approval License No.07-368 (Special Approval License), Attachment 2 hereto, originally issued by the Arizona Radiation Regulatory Agency. On December 31, 2017, the Agency was transitioned into the Arizona Department of Health Services by state legislation and renamed the Bureau of Radiation Control. Thus, the current version of Special Approval License No.07-368 (Amendment 11 issued on March 15, 2018) was issued by the Bureau of Radiation Control.

18. The Aquifer Protection Permit and Special Approval License issued by the Arizona Department of Environmental Quality and Bureau of Radiation Control, respectively, provide for the comprehensive State regulation of sludge deposited in the Sludge Disposal Landfill, including the disposal of cooling water sludge that may contain trace amounts of radioactive material. The Aquifer Protection Permit 9

(Page 112 of Total) ADD43

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 46 of 78 limits the types of materials that can be deposited in the landfill and restricts the landfill to non-hazardous sludge that meets Permit requirements.4

19. The Aquifer Protection Permit requires, among other things, that cooling tower sludge samples be analyzed for radiological constituents in accordance with Special Approval License No.07-368.5 The Special Approval License authorizes APS to dispose of sediment and sludge containing trace amounts of radioactive material in accordance with APS landfill operation procedures, and as described in the Aquifer Protection Permit.6 The Special Approval License provides that the average aggregate concentration of radioactive materials in sediments and sludge disposed of in the Sludge Disposal Landfill may not exceed certain concertation limits that are codified in Arizonas radiation protection regulations.7 D. Source of the State of Arizonas Regulatory Jurisdiction Over VLLW Disposal

20. The State of Arizona, through the Arizona Department of Environmental Quality and Bureau of Radiation Control (and its predecessor agency), long has regulated the disposal of sludge from the Palo Verde Units 1, 2, and 3 cooling towers pursuant to the Aquifer Protection Permit and Special Approval License. The scope 4

See Aquifer Protection Permit at 33-35 (Attachment 1).

5 See id.

6 See Special Approval License, ¶ 7 (Attachment 2).

7 See id. ¶ 8.

10 (Page 113 of Total) ADD44

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 47 of 78 of this regulatory authority includes sludge with trace amounts of radioactive material, i.e., sludge that is considered VLLW.8 Importantly, the Special Approval License distinguishes between the ultimate disposal of such VLLW, over which the State has authority, and the temporary storage of radiologically-contaminated sludge that does not meet the States concentration-based disposal criteria, over which the NRC has regulatory jurisdiction.9

21. The States authority to regulate radiologically-contaminated sludge stems from its status as an Agreement State under AEA Section 274. Arizona and the Atomic Energy Commission (NRCs predecessor) entered into a Section 274 Agreement in April 1967.10 E. Impacts of the NRCs Newly-Asserted Jurisdiction Over VLLW Disposal

22. Given the division of regulatory authority between the State of Arizona and the NRC that has existed for decades, including with regard to onsite sludge disposal at Palo Verde, APS is very concerned about the position taken by NRC in its September 16, 2019, Letter to NEI. According to that letter, any licensees request for approval to dispose of licensed material under . . . Section 20.2002, or the 8

See id. ¶ 7.

9 See id. ¶¶ 7, 8, 10.

10 See Agreement Between [Atomic Energy Commission] and Arizona; Discontinuance of Certain Commission Regulatory Authority and Responsibility, 32 Fed. Reg. 6103 (Apr. 18, 1967).

11 (Page 114 of Total) ADD45

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 48 of 78 equivalent Agreement State regulations, must be submitted to the regulatory authority that issued the license for use of the radioactive material.11 Thus, APS understands this letter to require NRC reactor licensees to now seek disposal approval for VLLW from the NRC rather than Agreement States, contrary to the decades of prior practice described above. Moreover, this letter states that NRC will consider enforcement discretion on a case-by-case basis for those licensees who have relied on Agreement State approvals in the pastindicating that there are some instances in which the agency will not exercise enforcement discretion.12 Section 20.2002 of NRCs regulations provides that licensees may seek NRC approval of proposed procedures, not otherwise authorized in 10 C.F.R. Part 20, to dispose of licensed material generated in the licensees activities.13

23. As noted above, APS has long relied on Agreement State approval for its VLLW disposal activities. APS is concerned that during a future inspection at Palo Verde, the NRC might allege a violation against APS on the ground that its disposal of cooling tower sludge potentially containing trace amounts of radiological material requires NRC approval pursuant to 10 C.F.R. § 20.2002. Indeed, I understand that 11 September 2019 NRC Letter at 1 (emphasis added).

12 Id.

13 10 C.F.R. § 20.2002.

12 (Page 115 of Total) ADD46

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 49 of 78 this situation already has occurred at other nuclear power stations located in the same NRC region (Region IV) as Palo Verde.

24. Even if the NRC were to issue only a minor violation or exercise enforcement discretion, alleged violations are an undesirable outcome that APS, like other NRC licensees, diligently seeks to avoid. Moreover, even minor violations, which the NRC defines as those that are less significant than a Severity Level IV violation, and which do not normally warrant enforcement action or documentation in inspection reports, must be corrected.14 Specifically, a licensee must enter the minor violation in its Corrective Action Program and address it through its NRC-inspected corrective action processes. NRC regulations require licensees to take corrective actions to ensure that conditions adverse to quality, safety, and security are promptly identified and corrected.15 A licensees Corrective Action Program is its formal process for tracking, evaluating, and resolving deficiencies.16 As the NRCs Enforcement Policy makes clear, if a licensee refuses to correct a minor violation within a reasonable time such that it willfully continues, the violation 14 NRC Enforcement Policy, at 12, 14, 82 (Jan. 15, 2020), available at https://www.nrc.gov/docs/ML1935/ML19352E921.pdf. A Severity Level IV violation is defined as one that resulted in no or relatively inappreciable potential safety or security consequences, but which created the potential of more than minor safety or security consequences. Id. at 12.

15 See 10 C.F.R. Part 50, Appendix B, Criterion XVI (Corrective Action).

16 See NRC Enforcement Policy at 81.

13 (Page 116 of Total) ADD47

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 50 of 78 should be considered more than minor, and [l]icenses are expected to take significant remedial action in responding to willful violations commensurate with the circumstances.17 Otherwise, significant enforcement action against the licensee could result, because [a]ll violations are subject to consideration for civil enforcement action [and] some violations may also be considered for criminal prosecution by the U.S. Department of Justice.18

25. Any effort by APS to comply with the NRCs new mandate would impose additional (and, in APSs view, unnecessary) regulatory burden. To obtain a Section 20.2002 disposal authorization from the NRC, Palo Verde staff would need to compile the technical information necessary to support the application. The application must include, at a minimum: (1) a description of the waste containing licensed material to be disposed of, including the physical and chemical properties important to risk evaluation, and the proposed manner and conditions of waste disposal; (2) an analysis and evaluation of pertinent information on the nature of the environment; (3) the nature and location of other potentially affected licensed and unlicensed facilities; and (4) quantitative analyses and specific procedures to ensure 17 Id. at 11.

18 Id. at 9 14 (Page 117 of Total) ADD48

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 51 of 78 that doses are maintained as low as reasonably achievable and within the dose limits specified in 10 C.F.R. Part 20.19

26. Based on informal benchmarking performed by reviewing relevant information in the NRCs public document system (e.g., relevant NRC guidance, previous Section 20.2002 disposal requests/approvals) and obtaining feedback from other licensees, I conclude that this is not a minor task. I estimate that approximately 500 hours0.00579 days <br />0.139 hours <br />8.267196e-4 weeks <br />1.9025e-4 months <br /> of Palo Verde staff time would be needed to compile, review, and approve the Section 20.2002 application prior to its submittal to the NRC. After the application is submitted, APS likely would need to respond in writing to NRC requests for additional information and engage in other interactions with NRC staff.

APS also would be responsible for paying the regulatory services fees charged by the NRC for its review of the application pursuant to 10 C.F.R. Part 170. Based on input provided by APS licensing personnel and my own professional experience, I estimate that the total licensing-related costs (inclusive of NRC fees) would be on the order of $200,000. Furthermore, assuming the NRC approves the Section 20.2002 disposal request, it still could impose additional technical or administrative conditions that create additional regulatory burden and related costs for APS.

27. Another option for APS would be to dispose of cooling tower sludge in a low-level radioactive waste disposal facility licensed under 10 C.F.R. Part 61 (or 19 See 10 C.F.R. § 20.2002(a)-(d).

15 (Page 118 of Total) ADD49

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 52 of 78 equivalent Agreement State regulations) pending resolution of the jurisdictional issues described above. However, the resulting increase in disposal costs would be substantial. Based on current APS contracts with offsite low-level radioactive waste disposal facilities, the disposal costs alone (excluding labor, container, and transportation costs) are estimated to be about $1,000,000 per year for the cooling tower sludge.

28. Finally, as the foregoing suggests, the new agency position taken in the September 2019 NRC Letter creates considerable regulatory uncertainty for APS.

For decades, APS has relied on authorizations from the Arizona Department of Environmental Quality and Bureau of Radiation Control (or its predecessor) to dispose of cooling tower sludge that contains, or may contain, trace amounts of radioactive material. The NRC now evidently expects APS to seek NRC approval under 10 C.F.R. § 20.2002 in addition to, or in lieu of, its current State authorizations. Until this issue is resolved, APS, in effect, is subject to dual regulation by the State of Arizona and the NRC with regard to the disposal of potential VLLW (i.e., cooling tower sludge) in the Sludge Disposal Landfill. This outcome is neither consistent with the States and NRCs Section 274 Agreement nor commercially practicable for APS.

16 (Page 119 of Total) ADD50

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 53 of 78 I declare under penalty of perjury pursuant to 28 U.S.C. § 1746 that the foregoing is true and correct. Further, I declare that I have personal knowledge regarding the facts set forth above and that I am competent and authorized to file this Declaration.

Executed on September 29, 2020.

Thomas N. Weber Nuclear Regulatory Affairs Director Arizona Public Service 17 (Page 120 of Total) ADD51

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 54 of 78 ATTACHMENT 1 Excerpts from Arizona Department of Environmental Quality Area-wide Aquifer Protection Permit No. 100388 (Jan. 2018) for the Palo Verde Nuclear Generating Station (Page 121 of Total) ADD52

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 55 of 78 ADEQ Deoartment^^I Arizona Department ol Environmental Quality PERMIT PERMIT www.azdeq.ga11 www.azdeq.gov AREA-WIDE AQUIFER AREA-WIDE AQUIFER PROTECTION PROTECTlO PERMIT PERMIT NO. 0. P-100388 P-100388 PLACE PLACE ID ID 3507, LTF 64999, 3507, LTF ignificant Amendment 64999, Significant Amendment 1.0 AUTHORIZATION 1.0 AUTHORIZA TIO In compliance with the provisions provi ions of Arizona Revised Statutes (A.R.S.) Title 49, Chapter 2, Articles Article 1, I, 2 and 3, 3.

Adrnini trative Code (A.A.C.) Title 18, Chapter 9, Articles Arizona Administrative Article 1I and 2, A. A. C. Title 18,18 Chapter 11, Article 4 and amendments thereto, and the condition conditions set forth in this thi permit, the Arizona Department of Environmental Quality (ADEQ) hereby authorizeauthorizes Arizona Public Service Company, as a joint owner and the operating agent for the other joint owners:

owners:

1. Salt

1. Salt River Project Agricultural River Project Agricultural Improvement Improvement and and Power Power District District

2. Southern

2. Southern California California Edi Edisonon Company Company

3. ElEl Paso Pa o Electric Electric Company Company

4. Public

4. Public Service Service Company Company of ew Mexico of New Mexico S. Los Angeles

5. Los Angeles Department Department of Water &

of Water & Power Power

6. Southern

6. outbern California Public Power California Public Power Authority Authority to operate the discharging facilities facilitie listed in this permit at the Palo Verde Nuclear Generating Station tation (Facility) located in Tonopah, Arizona, approximately 50 miles mile west of downtown Phoenix in Maricopa County over groundwater of the Lower Hassayampa Ha ayampa groundwater basin, within the Phoenix Active Management Area, in all or portions of Town Township hip 1I North, Range 6 West, SectionSections 26, 27, 28, 33, 34 and 35 and Town Townshiphip 1I South, Range 6 West Sections West, ection 2, 3. 4, 9 and 10, of the Gila and Salt River Baseline and Meridian.

3,4, Thi This permit becomes become effective on the date of the Water Quality Division Directors Director' signature ignature and shall hall be valid for the life of the facility (operational, closure, and post-closure periods), period ) unless unle suspended uspended or revoked pursuant pur uant to A.A.C. RI 8-9-A2 I 3. The permittee shall R18-9-A213. hall construct, operate and maintain the permitted facilities:

facilities:

I. Following all the condition

1. conditions of this permit including the design and operational information documented or referenced below, and

2. Such that Aquifer Water Quality Standard Standards (A WQS) are not violated at the applicable point(s) of (AWQS) compliance (POC) set et forth below, or if an AWQSA WQS for a pollutant has been exceeded in an aquifer at the time of permit issuance, i suance, that no additional degradation of the aquifer relative to that pollutant, and aas detennined determined at the applicable POC, occur occurs as a result of the discharge di charge from the facility.

1.1 1.1 Permittee Information Permittee Information Facilitv Facility Name:

Name: Generatine Station Palo Verde Nuclear Generating Annual Reeistration Registration Fee Flow Rate: Greater than 10 Million Gallons Gallom per ner Dav Day fcmd)

(gpd)

Permittee:

Permittee: Mailine Mailing Address: Facilitv Street Facility Address:

Street Address:

APS -- Palo Verde Nuclear Generating P.O. Box 52034, P.Q. 52034 M.S. 7626 580 5801I South Wintersburg Road Station Phoenix. Arizona 85072-2034 Tononah.

Phoenix, Tonopah, Arizona 85354-7529 Facility

Contact:

Facility

Contact:

Environmental Department 623-393-4972 623-393-4972 Leader Emergency Telephone Emergency Telephone Number:

Number: Water Reclamation Water Facility Reclamation Facility 623-393-3002 623-393-3002 Shift Sunervisor Supervisor Latitude:

Latitude: 33* 22' 40" 33" 22' 40" North North Loneitude:

Longitude: 112*

112 51' 34" West 5134" West Leeal

Description:

Legal Descriotion: See Section 14.0 of this permit nermit 1.2 Authorizing 1.2 Authorizing Signature Signature e, Di^tor Dir tor '-1...aurar'L.

auraf'L. Malone, Director WaterXjirfIily Water Divj^on i Div* 100 Waste Programs Division Arizona De~~ent Departfnent of Environmental Quality Arizona Departwnt De~i;to,nt of Eimronmental Ea=~uality Quality Signed this Signed this ~day

^ day of :rMU0,,°1 of JcMr\UtXri/i , 201^

201i Signed thi Signed this^^dav

~ d a y of of '1./ht 20il 20il THIS PERMIT THIS PERMIT AME DME T SUPERSEDES AMENDMENT PERSEDES ALL ALL PREVIOUS PREVIO SAME DME TS TO AMENDMENTS TO THJS PERMIT THIS PERMIT Lii.

(Page 122 of Total) ADD53

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 56 of 78 AQUIFER AQUIFER PROTECTION PROTECTION PERMIT PERMIT NO. NO. P-100388 P-100388 p . 22 of

p. of7272 Table Table of of Contents Contents 1.0 AUTHORIZAT AUTHORIZATION ION 1 I.I 1.1 Permittee Permittee Information .................................................................................................................................................. I Information......................................................................................................................................................1 1.2 1.2 Authorizing Authorizing Signature .................................................................................................................................................. 1I Signature.......................................................................................

2.0 SPECIFIC SPECIFIC CONDITIONS CONDITIONS [A.R.S. [A.R.S. §§ §§49-203(4),49-203(4),49-241(A)[

49-241(A)l 55 2.1 2.1 Facility Facility // SiteSite Description Description (A.R.S. lA.R.S. §§49-243(K)(8)J ..................................................................................................... 55 49-243(K)(8)l.......................................................................................................

2.1.1 APP An nual Registration Fee 2.1.1 APP Annual (A.R.S. §49-242 and Registration Fee lA.A.C.

A.R.S. RIS-14-104(

§49-242 and.................................................................

A.A.C. R18-14-104]...............................55 2.1.2 2.1.2 Solid Solid Waste AnnualWaste Annualand Registration Disposal Fees Registration (A. R.S. §§ and Disposal 49-747, Fees [A.R.S. 49-836[ ..................................................... 6

§§49-747,49-836]...............................6 2.1.3 Financial Capability 2.1.3 Financial Capability [A.R.S. [A.R.S. §§49-243(N)49-243(N) and and A.A.C.

A.A.C. R18-9-A203( ......................................................................... 6 R18-9-A203]..........................................................................6 Best Best Available Available Control .................................................................................................................................................. 66 Control.....................................................................................................................................................

2.3 2.3 Technology Technology [A.R.S. [A.R.S. §§49-243(8)49-243(B) and and A.A.C.

A.A.C. Rt8-9-A202(A)(5)1 .............................................................................. 6 R18-9-A202(A)(5)[................................................................................6 2.4 2.4 Monitoring Monitoring Requirements Requirements [A.R.S. [A.R.S. §§49-243(8)49-243(B) and and (K)(t (K)(l), ), A.A.C.

A.A.C. R 18-9-A206(A)[...............................................66 R18-9-A206(A)[...............................................

3.0 WATER WATER STORAGE STORAGE RESERVOIRS RESERVOIRS 66 3.1 Water 3.1 Water Storage Storage Reservoir Reservoir Best Best Available Available Demonstrated Demonstrated Control Control Technology Technology [A.R.S. [A.R.S. §§49-243(8)49-243(B) and A.A.C.

and A.A.C.

Rl8-9-A202(A)(5)( ................................................................................................................................................................... 7 R18-9-A202(A)(5)[.......................................................................................................................................................................7 3.1.1 3.1.1 85-acre Water 85-acre Water Storage Storage Reservoir Reservoir Best Best Available Available Demonstrated Demonstrated Control Control Technology .............................. 7 Technology...............................7 3.1.2 3.1.2 45-acre45-acre Water Water Storage Storage Reservoir Reservoir Best Best Available Available Demonstrated Demonstrated Control Control Technology .............................. 9 Technology...............................9 3.2 Water 3.2 Water Storage Storage Reservoir Reservoir Operational Operational Requirements Requirements and and Methods IO

....................................................................... 10 Methods.........................................................................

3.2.1 3.2.1 Leak Leak Collection Collection and and Recovery Recovery System System Operation ...................................................................................... IO Operation.........................................................................................10 3.2.2 3.2.2 Underdrain Underdrain System System Operation ..................................................................................................................... 11 Operation........................................................................................................................ 11 3.3 3.3 Water Water Storage Storage Reservoir Discharge Limitations Reservoir Discharge Limitations (A.R.S. [A.R.S. §§ §§49-201(14),49-201(14),49-243 49-243 and and A.A.C.

A.A.C. Rl8-9-A205(B)(

R18-9-A205(B)j.... .... 11 11 3.3.1 3.3.1 Holding Holding Capacity Capacity and and FlowFlow Limitations ...................................................................................................... 11 Limitations......................................................................................................... 11 3.3.2 3.3.2 Authorized Authorized and and Unauthorized Unauthorized Materials ..................................................................................................... 11 Materials........................................................................................................ 11 3.3.3 3.3.3 Discharge Discharge Source Source Limitations ...................................................................................................................... 11 Limitations......................................................................................................................... II 3.3.4 3.3.4 Surface Impoundment and Surface lmpoundment and Equipment Equipment Maintenance ................................................................................ 11 Maintenance...................................................................................11 3.3.5 3.3.5 Use Use of of WSR WSR FluidsFluids for for Dust Dust Suppression Suppressionand andOther OtherSurface SurfaceApplications................................................

Applications ............................................. 11 11 3.4.1 3.4.1 Discharge Discharge Monitoring ................................................................................................................................... 12 Monitoring...................... 12 3.4.2 3.4.2 WSR WSR Facility Facility // Operational Operational Monitoring ...................................................................................................... 12 Monitoring......................................................................................................... 12 3.5 3.5 WSR WSR Contingency Contingency Plan Plan Requirements Requirements [A.R.S. [A.R.S. §§49-243(K)(3),49-243(K)(3), (K)(7) (K)(7) and A.A.C. R18-9-A204 and A.A.C. R18-9-A204 and Rl8 and R18 A205[ ...................................................................................................................................................................................... 13 A205[...........................................................................................................................................................................................13 3.5.1 3.5.1 WSR WSR Exceeding Exceeding A Ls ..................................................................................................................................... 13 ALs.........................................................................................................................................13 3.5.2 3.5.2 WSR WSR Discharge Discharge Limitation Limitation Violations ........................................................................................................ 16 Violations........................................................................................................... 16 3.6 3.6 WSR WSR Closure Closure Plan [A.R.S. §§ Plan [A.R.S. §§49-243(K)(6),49-243(K)(6),49-252 49-252 and and A.A.C.

A.A.C. R 18-9-A209(B)[ ................................................. 18 R18-9-A209(B)l...................................................18 4.0 EVAPORATION EVAPORATION POND POND 19 19 4.1 4.1 Evaporation Evaporation Ponds Ponds Best Best Avajlable Available Demonstrated Demonstrated Control Control Technology Technology (A.R.S. [A.R.S. §§49-243(8 49-243(B)) and and A.A.C.

A.A.C. R18-9-Rt8 A202(A)(5)J ............................................................................................................................................................................ 19 A202(A)(5)[.................................................................................................................................................................................19 4.1.1 4.1.1 Evaporation Evaporation Pond ....................................................................................................................................... 19 Pond 11...........................................................................................................................................19

4. 1.2 4.1.2 Evaporation Evaporation Pond Pond 22..........................................................................................................................................

....................................................................................................................................... 2020 4.1.3 Evaporation 4.1.3 Evaporation PondJ ....................................................................................................................................... 22 Pond 3.......................................................................................................................................... 22 4.2 4.2 Evaporation Evaporation Pond Pond Operational Operational Requirements Requirements and and Methods .................................................................................. 24 Methods.................................................................................... 24 4.2.1 4.2.1 Underdrain Underdrain System System Operation ..................................................................................................................... 24 Operation........................................................................................................................24 4.3 4.3 Evaporation Evaporation Pond Pond Discharge Limitations [A.R.S.

Discharge Limitations [A.R.S. §§ §§49-201(14),49-201(14),49-243 49-243 and and A.A.C. R18-9-A205(B)[ ...............24 A.A.C. R18-9-A205(B)l.............. 24 4.3.1 4.3.1 Holding Capacity Holding Capacity and and Flow Flow Limitations ...................................................................................................... 24 Limitations.........................................................................................................24 4.3.2 4.3.2 Authorized and Authorized and Unauthorized Unauthorized Materials ..................................................................................................... 24 Materials....................................................................................................... 24 4.3.3 4.3.3 Discharge Discharge Source Source Limitations ...................................................................................................................... 24 Limitations.........................................................................................................................24 4.3.4 Surface 4.3.4 Surface lmpoundment Impoundment and and Equipment Equipment Maintenance ................................................................................ 25 Maintenance.................................................................................. 25 4.4 4.4 Evaporation Evaporation Pond Pond Monitoring Monitoring Requirements .......................................................................................................... 25 Requirements...................................... 25 4.4.

4.4.11 Discharge Discharge Monitoring Monitoring (A.R.S. [A.R.S. §§49-243(K)(I),49-243(K)(l), A.A.C. R18-9-A206(A)[ ................................................... 25 A.A.C. R18-9-A206(A)l.................................................... 25 4.4.2 4.4.2 Facility/Opera Facility/Operational tional Monitoring .................................................................................................................. 25 Monitoring.....................................................................................................................25 4.5 4.5 Evaporation Evaporation Pond Pond Contingency Contingency Plan Plan Requirements Requirements (A.R.S. [A.R.S. § §49-243(K)(3),49-243(K)(3), (K)(7) (K)(7) and and A.A.C. R18-9-A204 and A.A.C. R18-9-A204 and R18-9-A205[ ........................................................................................................................................................................... 26 R18-9-A2051............................................................................................................................................................................... 26 4.5. Exceeding of 4.5.11 Exceeding of Alert Alert Levels ...........................................................................................................,................. 26 Levels................................................................................................................................ 26 4.5.2 4.5.2 Discharge Discharge Limitations Limitations Violations ................................................................................................................. 29 Violations....................................................................................................................29 4.6 4.6 Evaporation Evaporation Pond Pond Closure Closure Plan [A.R.S. §§ Plan [A.R.S. §§49-243(K)(6),49-243(K)(6),49-252 49-252 and and A.A.C.

A.A.C. R 18-9-A209(B)I ........................... 32 R18-9-A209(B)l............................32 5.0 5.0 SEDIMENTATION SEDIMENTATION BASINS BASINS 32 32 6.0 6.0 SLUDGE SLUDGE LANDFILL LANDFILL 33 33 6.1 6.1 Sludge Sludge Landfill Landfill BADCT BADCT [A.R.S. [A.R.S. §§49-243(8 49-243(B)) and and A.A.C.

A.A.C. Rt8-9-A202(A}(5)[ ....................................................... 33 R18-9-A202(A)(5)l........................................................ 33 6.2 6.2 Sludge Sludge Landfill Landfill Operational Requirements and Operational Requirements and Methods ....................................................................................... 33 Methods......................................................................................... 33 6.3 6.3 Sludge Sludge Landfill Landfill Discharge Discharge Limitations Limitations (A.R.S. [A.R.S. §§ §§49-201(14),49-201(14),49-243 49-243 and and A.A.C. R18-9-A205(B)I ................... 33 A.A.C. R18-9-A205(B)l....................33 6.4 Sludge Landfill 6.4 Sludge Landfill Sampling Sampling and and Monitoring Monitoring Requirements Requirements [A.R.S. [A.R.S. § §49-243(K)(I),49-243(K)(l), A.A.C. R18-9-A206(A)[ ....... 34 A.A.C. R18-9-A206(A)l.........34 6.4.1 6.4.1 Cooling Cooling Tower Tower Sludge ................................................................................................................................... 34 Sludge...................................................................................................................................... 34 6.4.2 WRF 6.4.2 WRF Sludge Sludge Sampling .................................................................................................................................. 34 Sampling..................................................................................................................................... 34 (Page 123 of Total) ADD54

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 57 of 78 ADEQS^

Arizona Department of Environmental QuaUry^^SL AQUIFER AQUIFER PROTECTION PROTECTION PERMIT PERMIT NO. NO. P-100388 P-100388 pp.. 3 3 of72 of 72 6.4.3 6.4.3 Methane Methane Gas Gas Monitoring .............................................................................................................................. 34 Monitoring.................................................................................................................................34 6.5 6.5 Sludge Landfill Contingency Sludge Landfill Contingency Plan Plan Requirements ..................................................................................................... 35 Requirements....................................................................................................... 35 6.6 6.6 Sludge Sludge Landfill Closure Plan Landfill Closure Plan I(A.R.S.

A.R.S. §§ §§49-243(K)(6),49-243(K)(6),49-252 49-252 and and A.A.C.

A.A.C. R 18-9-A209(B)( ................................ 35 R18-9-A209(B)l.................................35 7.0 RUBBISH LANDFILL RUBBISH LANDFILL 35 35 7.1 7.1 Rubbish Rubbish Landfill Landfill BADCT BADCT (A.R.S. lA.R.S. §§49-243(B)49-243(B) and and A.A.C.

A.A.C. R18-9-A202(A)(S)I ..................................................... 36 R18-9-A202(A)(5)l...................................................... 36 7.2 7.2 Rubbish Landfill Operational Rubbish Landfill Operational Requirements Requirements and and Method ...................................................................................... 36 Method........................................................................................36 7.3 7.3 Rubbish Rubbish Landfill Landfill Discharge Limitations (A.R.S.

Discharge Limitations (A.R.S. §§ §§49-201(14),49-201(14),49-243 49-243 and and A.A.C. Rl8-9-A20S(B)( ................. 36 A.A.C.R18-9-A205(B)l...................36 7.4 7.4 Rubbish Rubbish Landfill Landfill Monitoring Requirements (A.R.S.

Monitoring Requirements l A.R.S. §§49-243(1()(1),49-243(K)(l), A.A.C. A.A.C. R18-9-A206(A)( ............................ 36 R18-9-A206(A)l.............................36 7.5 7.5 Rubbish Rubbish Landfill Landfill Contingency Contingency Plan Plan Requirements .................................................................................................. 36 Requirements....................................................................................................36 7.6 7.6 Rubbish Rubbish Landfill Landfill Closure Closure Plan Plan (A.R.S.

[A.R.S. §§ §§49-243(K)(6),49-243(K)(6),49-252 49-252 and and A.A.C.

A.A.C. R18-9-A209(B)( ............................ 36 R18-9-A209(B)l.............................36 8.0 MONITORING REQUlREMENTS MONITORING REQUIREMENTS (A.R.S.

[A.R.S. §§49-243(B)49-243(B) and and (K)(l)k, (K)(l)k, A.A.C.A.A.C. Rl8-9-A206(A)

R18-9-A206(A)lI 37 37 8.1 8.1 Point Point ofof Compliance Compliance (POC) (POC) Wells Wells (A.R.S.

[A.R.S. §§ 49-2441 ............................................................................................... 37 49-244[.................................................................................................37 8.2 Water 8.2 Water Level Level Wells Wells in the Shallow in the Shallow Aquifer ................................................................................................................ 38 Aquifer.................................................................................................................. 38 8.3 8.3 POCPOC WellWell Replacement Replacement and and NewNew Monitor Monitor Wells ..................................................................................................... 38 Wells....................................................................................................... 38 8.3.1 8.3.1 Well Well Installation Reports .............................................................................................................................. 39 Installation Reports................................................................................................................................ 39 8.3.2 Ambient Groundwater 8.3.2 Ambient Groundwater Monitoring Monitoring Reports ............................................................................................... 39 Reports.................................................................................................39 8.4 Groundwater 8.4 Monitoring and Groundwater Monitoring and Sampling Sampling Protocols .................................................................................................. 39 Protocols..................... 39 8.4.I 8.4.1 Ambient Ambient Groundwater Monitoring ............................................................................................................. 39 Groundwater Monitoring............................................................................................................... 39 8.4.2 8.4.2 Compliance Groundwater Compliance Groundwater Monitoring ........................................................................................................ 39 Monitoring.......................................................................................................... 39 8.5 Analytical Methodology 8.5 Analytical .............................................................................................................................................. 40 Methodology.................................................................................................................................................40 8.6 8.6 Installation Installation and Maintenance of and Maintenance of Monitoring Monitoring Equipment ........................................................................................ 40 Equipment..........................................................................................40 8.7 8.7 Contingency Actions (A.R.S.

Contingency Actions [A.R.S. §§49-243(1()(3),49-243(K)(3), (1()(7) (K)(7) and and A.A.C.

A.A.C. R18-9-A204 R18-9-A204 and R18-9-A20S( ......................... 40 andR18-9-A205[...........................40 8.7.1 8.7.1 Exceeding of Exceeding of Alert Levels in Alert Levels in Groundwater Groundwater Monitoring Monitoring (A.R.S. [A.R.S. §§49-243(1()(3),49-243(K)(3), (1()(7) (K)(7) and and A.A.C.

A.A.C. Rl8- R18-9-A204 9-A204 andand R 18-9-A205 I ............................................................................................................................................ 4 I R18-9-A205[...............................................................................................................................................41 8.7.2 8.7.2 Aquifer Aquifer Quality Quality Limit Limit Violation Violation (A.R.S.49-243(K){3), (1()(7)

[A.R.S. §§49-243(K)(3), (K)(7) and and A.A.C.

A.A.C. R18-9-A204 R18-9-A204 and and R18 R18 A205(

A205[ ........................................................................................................................................................................ 42 42 9.0 CONTINGENCY CONTINGENCY PLAN PLAN REQUIREMENTS REQUIREMENTS (A.R.S. [A.R.S. §§49-243(1()(3),49-243(K)(3), (K)(7) (K){7) and and A.A.C.

A.A.C. Rl8-9-A204 R18-9-A204 and and R18 R18 A2~1 A205I O 43 9.1 9.1 General Contingency Piao General Contingency Plan Requirements ................................................................................................................. 43 Requirements................................................................................................................... 43 9.2 9.2 Exceeding Exceeding of of Alert Alert Levels ........................................................................................................................................... 43 Levels..............................................................................................................................................43 9.3 Discharge 9.3 Discharge Limitations Violations............................................................................................................................... 43 Limitations Violations..................................................................................................................................43 9.4 9.4 Emergency Response and Emergency Response and Contingency Contingency Requirements Requirements for for Unauthorized Unauthorized Discharges Discharges (A.R.S. [A.R.S. §§49-201(12)49-201(12) and and A.R.S.

A.R.S.§ §49-241 (..................................................................................................................................................................... 43 49-2411........................................................................................................................................................................ 43 9.4.

9.4.1l Duty to Duty Respond ............................................................................................................................................ 43 to Respond...............................................................................................................................................43 9.4.2 9.4.2 Discharge Discharge of of Hazardous Hazardous Substances Substances or or Toxic Toxic Pollutants ........................................................................... 43 Pollutants............................................................................ 43 9.4.3 9.4.3 Discharge Discharge of of Non-hazardous Non-hazardous Materials ....................................................................................................... 43 Materials......................................................................................................... 43 9.4.4 9.4.4 Reporting Requirements Reporting ............................................................................................................................... 44 Requirements................................................................................................................................. 44 9.4.5 9.4.5 Sampling Sampling of Plant Upset of Plant Upset Releases/Unauthorized Releases/Unauthorized Discharges ..................................................................... 44 Discharges...................................................................... 44 9.S 9.5 Corrective Actions....................................................................................................................................................... 44 Corrective Actions.......................................................................................................................................................... 44 10.0 10.0 REPORTING REPORTING AND AND RECORDKEEPING RECORDKEEPING REQUIREMENTS REQUIREMENTS (A.R.S.

lA.R.S. §§49-243(K)(2)49-243(K)(2) and and A.A.C.

A.A.C. RI8-9-A206(8)

RI8-9-A206(B) and and R18-9-A207(

R18-9-A207[ 44 44 JO.I Self-monitoring 10.1 Self-monitoring Report Forms ................................................................................................................................... 44 Report Forms......................................................................................................................................44 10.2 Operation Inspection / Log Book Recordkeeping ....................................................................................................

10.2 Operation Inspection / Log Book Recordkeeping......................................................................................................45 45 I10.3 0.3 Permit Permit Violation Violation and Alert Level and Alert Level Status Status Reporting ................................................................................................ 45 Reporting..................................................................................................45 10.3.1 10.3.1 Methane Methane Gas Gas Exceedance Exceedance Reporting ........................................................................................................... 46 Reporting............................................................................................................. 46 10.4.2 Ambient Groundwater 10.4.2 Ambient Groundwater Monitoring Monitoring Reports ............................................................................................... 47 Reports.................................................................................................47 10.4.3 10.4.3 Well Installation and Well Installation and WellWell Abandonment Abandonment Reports ..................................................................................... 48 Reports.......................................................................................48 10.4.4 Groundwater 10.4.4 Groundwater WithdrawalWithdrawal and and Updated Updated Well Well Inventory Inventory Reports ............................................................ 49 Reports............................................................. 49 I10.5 0.5 Reporting Reporting Location ..................................................................................................................................................... 49 Location........................................................................................................................................................ 49 10.6 10.6 Reporting Deadline ..................................................................................................................................................... 49 Reporting Deadline........................................................................................................................................................ 49 0.6.1 Quarterly I10.6.1 Quarterly Reporting Reporting Deadline ...................................................................................................................... 49 Deadline........................................................................................................................ 49 I 0.6.2 Semi-Annual 10.6.2 Semi-Annual and and Annual Annual Monitoring Monitoring Report Report Due Dates .......................................................................... 49 Due Dates............................................................................ 49 10.7 Changes 10.7 Changes to to Facility Facility Information Information in in Section Section 1.0 ........................................................................................................ 50 1.0.......................................................................................................... 50 11.0 11.0 GENERAL GENERAL C LOSURE AND CLOSURE AND POST-CLOSURE POST-CLOSURE REQUIREMENTS REQUIREMENTS 50 50 t.l Temporary l11.1 Temporary Cessation Cessation (A.R.S. [A.R.S. §49-243(1()(8)

§49-243(K)(8) and and A.A.C.

A.A.C. Rl8-9-A209(A)( ........................................................... 50 R18-9-A209(A)l............................................................ 50 t.2 Closure t11.2 Closure (A.R.S.

[A.R.S. §§49-243(1()(6), 49-2S2

§§49-243(K)(6),49-252 and and A.A.C.

A.A.C. Rl8-9-A209(B)( .................................................................. 50 R18-9-A209(B)l....................................................................50 I t.2.1 Closure 11.2.1 ClosurePlan Plan--General General Requirements Requirements..... ........................................................................................................

................................................................................................... 50 50 11.2.2 11.2.2 Closure Closure Completion ....................................................................................................................................... 5 1 Completion..........................................................................................................................................51 I 1.2.3 Post-closure 11.2.3 Post-closure (A.R.S. [A.R.S. §§ §§49-243(1()(6),49-243(K)(6),49-252 49-252 and and A.A.C.

A.A.C. Rt8-9-A209(C)( ............................................. 5 1 R18-9-A209(C))..............................................51 12.0 12.0 COMPLIANC COMPLIANCE E SCHEDULE SCHEDULE S2 52 12.1 12.1 Active Active Compliance Compliance ScheduleSchedule Items ........................................................................................................................... 52 Items............................................................................................................................. 52 12.2 12.2 Completed Completed Compliance Compliance Schedule Schedule Items Items (Next(Next Page) .............................................................................................. 53 Page)................................................................................................ 53 13.0 13.0 TABLES OF TABLES OF MONITORING MONITORING REQUIREMENTS REQUIREMENTS 59 59 (Page 124 of Total) ADD55

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p. 44 of72 of 72 13.l 13.1 Pre-operational Pre-operational Monitoring Monitoring (or (or Construction)

Construction) Requirements ............................................................................... 59 Requirements........................................................................59 13.2 13.2 Compliance Compliance or or Operational Operational Monitoring Monitoring Tables .......................................................................................................60 Tables.............................................................................................. 60 13.3 13.3 13.3 13.3 Contingency Contingency Monitoring Monitoring Tables ......................................................................................................................... 66 Tables............................................................................................................... 66 14.0

14.0 REFERENCES

REFERENCES AND AND PERTINENT PERTINENT INFORMATION INFORMATION 70 70 1S.O 15.0 NOTIFICATION NOTIFICATION PROVISIONS PROVISIONS 71 71 16.0 16.0 ADDITIONAL PERMIT CONDITIONS ADDITIONAL PERMIT CONDITIONS 72 72 (Page 125 of Total) ADD56

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 59 of 78 ADEQS Ariiona Department Qualiry^^QL of Environmental Quality AQUIFER PROTECTION PERMIT NO. P-100388

p. 5 ofof 72 2.0 2.0 SPECIFIC SPECIFIC CONDITIONS CONDITIONS [A.R.S. §§ IA,R.S.49-203(4), 49-24

§§49-203(4), l (A)I 49-241(A)]

2.1 Facility/

2.1 Facility / Site Description Site Description [A.R.S. § IA.R.S. §49-243(K)(8)1 49-243(K)(8)l T he Palo Verde The Verde Nuclear Generating Station Station (PVNGS)

(PVNGS) began began operations operations in in 1985 1985 and and atat this this time time isis expected expected to to have have anan operational operational lifelife of of at at least least 60 years. The 60 years. PVNGS is The PVNGS is an an existing existing electric electric generating generating baseload baseload plant, plant, utilizing nuclear fission for generation of electrical power. The 44,280-acre ,280-acre Facility is located located west of Phoenix, Arizona.

The generating Facility consists of three, separate, identical, generating units/reactors, each equipped with three cooling towers. Each generating unit (also referred to in this permit as Unit) is capable of independent operation.

These units have a nominal net electrical output of approximately 1,346 megawatts (MW) each for aa total plant capacity capacity of of about about 4,038 4,038 MW. Each Unit also includes associated associated structures:

structures: auxiliary auxiliary building; building; radioactive radioactive waste (radwaste) waste building; fuel (radwaste) building; building; control fuel building; control building; building; diesel diesel generator generator building; building; main main steam steam support support structure; access building; spray ponds and cooling towers; and an oil/water separator.

Major Major common common installations installations serving serving all three Units all three Units include:

include: administrative administrative offices; offices; maintenance, maintenance, fire fire protection protection and and security security facilities; facilities; control control roomroom simulators simulators andand other other training training facilities; facilities; emergency emergency facil ities; aa Water facilities; Water Reclamation Facility (WRF); a re-engineered 85-acre water storage reservoir (WSR) (formerly known as the 80-acre WSR) for storing treated effluent reused for cooling water; aa 45-acre water storage storage reservoir (WSR); aa sewage treatment plant for domestic sewage; three double-lined evaporation evaporation surface impoundments; two unlined stormwater sedimentation basins; a rubbish landfill; a sludge disposal landfill; aa concrete/inert landfill; hazardous hazardous wastewaste accumulation/storage accumulation/storage facilities; low-level radioactive facilities; low-level radioactive waste waste interim interim storage storage facilities facilities including including an above-ground spent fuel cask storage area located on a concrete pad; warehouses; and railroad and road facilities. A A 500-kilovolt (KV) switchyard is also located at the PVNGS site site and is managed and operated by Salt River Project (SRP). This switchyard is not regulated under the Aquifer Protection Permit Permit (APP) program.

Exempt facilities are Exempt facilities listed in are listed in the the Fact Fact Sheet Sheet accompanying accompanying this this permit.

permit.

T f,ollowing permitted discharging he site includes the following The discharging facilities:

Facility Facility Latitude (North)

Latitude (North) Longitude Longitude (West)(West) 85-acrc Water Storage Reservoir 33' 12' 51'00" 85-acre Water Storage Reservoir 33" 23' 23' 30" 30" I112' 51'00" 45-acre Water Storage 45-acre Water Reservoir Storage Reservoir 33° 33 23' 23' 45" 45" 112° 112 50' 50' 48" 48" Evaporation Evaporation Pond Pond I1 (Cells (Cells I1 A, I 8, IC) 112*

A, IB, 1C) 33' 33' 22' 22' 00" 00" 112 52' 52' 08" 08" Evaporation Evaporation Pond Pond 22 (Cells 2A, 28, (Cells 2A, 2B, 2C) 2C) 33' 33" 22' 22' 00" 00" 112* 51' 30" 112-51'30" Sludge Disposal Landfill Landfill (Cooling (Cooling Tower Tower and and WRF WRF sludge) 112*

Sludge Disposal sludge) 33"

33. 23' 47" 23-47" 112- 51'00" 51'00" Rubbish Rubbish Landfill 33*

Landfill 33" 23' 06" 23'06" 112*

112 51'00" 51'00" Evaporation Pond 33 (Cells Evaporation Pond (Cells 3A3A and and 38) 3B) 33°21'29" 33 21'29" 112° 112 52' 52' 08" 08" Th site .includes Thee site me1udcs tthehe following ean-c oscdf;facilities:

tio II OWIDI!. Cclean-closed ac1T.

1ties:

Facility Facility Latitude (North)

Latitude (North) Longitude Longitude (West)(West)

Unlined Unlined Sedimentation Basin 1I (including (including ditches) 112*

Sedimentation Basin ditches) 33*

33. 22' 22- 25" 25" 112- 52' 52' 20" 20" Unlined Unlined Sedimentation Basin 22 (including ditches)

Sedimentation Basin (including ditches) 33. 22'2I" 33" 22-21" 112* 51' 21" 11251'21" 2.1.1 2.1.1 APP Annual APP Registration Fee Annual Registration Fee [A.R.S. §

[A.R.S.49-242 and

§49-242 and A.A.C.

A.A.C. Rt8-14-104J R18-14-104]

The The annual annual registration fee for this this permit is is payable to to ADEQ each each year.

year. TThe he permitted permitted flowflow for for fee fee calculation calculation is more than is more than 10 IO million miUion gallons per day gallons per day (MGD).

(MGD). If If the the facility facility is is not not yet yet constructed constructed or or is is incapable of incapable discharge at of discharge this time, at this time, the the permittee permittee maymay bebe eligible eligible forfor reduced reduced fees fees under under the the rule.

rule.

(Page 126 of Total) ADD57

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 60 of 78 ADEQ^

Arizona Detwitmcnt of ^vironmental Quality^'^£ AQUIFER AQUIFER PROTECTION PROTECTION PERMIT PERMIT NO. NO. P-100388 P-100388

p. 33 of

p. 33 of 72 72

• • Polynuclear Polynuclear Aromatic Aromatic Hydrocarbons Hydrocarbons (P AHs) -- Only (PAHs) Only analyzed analyzed if if observable observable staining.

staining.

Analytical Analytical results results for for Sedimentation Sedimentation Basins Basins I1 and and 22 and and associated associated ditches ditches diddid not not detect detect exceedances exceedances for for respective respective minimum minimum Groundwater Groundwater Protection Protection Levels Levels (GPLs)

(GPLs) for any of for any the analytes.

of the Because no analytes. Because no staining staining was was observed, observed, PAHsPAHs were were notnot analyzed analyzed fromfrom any any ofof the the samples samples collected.

collected.

Two Two POC POC wells, wells, APP-I APP-188 andand PV-l PV-195A,95A, are are associated associated withwith Sedimentation Sedimentation BasinsBasins I1 andand 2.

2. Groundwater results Groundwater results did did not indicate any not indicate violations of any violations of the the Aquifer Aquifer Quality Quality Limits Limits (AQLs)

(AQLs) in each POC in each POC welt.

well. Clean Clean closure closure hashas been been obtained and Sedimentary Basins I1 and 2 and their associated ditches have been removed as discharging facilities from from within within thisthis permit.

permit. Groundwater Groundwater monitoring monitoring at at the the two two associated associated POC wells is POC wells is no no longer longer required.

required.

6.0 SLUDGE SLUDGE LANDFILL LANDFILL PVNGS PVNGS operates operates and and maintains maintains aa surface surface drying drying Sludge Sludge Disposal Disposal Landfill Landfill that that is is approximately approximately 2213 I 3 acres in size.

acres in size.

Sludge Landfill is located on the east and south side of the WRF. The Sludge Landfill is an active, unlined The Sludge solid solid waste waste disposal disposal facility facility used used for for surface surface drying drying and land-filling of and land-filling of sludge sludge from from the the WRF and and the the cooling cooling towers.

Sludge Sludge is is deposited deposited by by the the area-fill area-fill method method andand covered covered withwith I1 foot foot of of soil soil with with each each application application STP sludge is STP sludge is not not deposited deposited in in the the Sludge Sludge Disposal Disposal Landfill.

Landfill. TheThe STP STP sludge sludge is is cycled cycled back back to the the tricking tricking filters filters of of the the WRF.

WRF.

6.1 6.1 Sludge Sludge Landfill Landfill BADCT BADCT [A.R.S. [A.R.S. §§49-243(8)49-243(B) and and A.A.C.

A.A.C. R18-9-A202(A)(S)I R18-9-A202(A)(5)]

The permittee shall operate and maintain a surface drying Sludge Disposal Landfill that is approximately 213 acres in size to receive cooling tower sludge and sludge from water treatment processes. The Sludge Landfill is located in aa flat desert area and shall be filled to the prescribed elevation and capped with a layer of liner dirt.

Alternately, the sludge may be disposed at an offsite permitted solid waste facility subject to applicable Federal and State Solid Waste Regulations. The Sludge Landfill is operated as a private solid waste landfill in accordance with Arizona Radiation Regulatory Authority (ARRA) Special Approval License No.7-368 and amendments and in accordance with A.R.S. §§49-762.07 (E) (E) and (F). Sludge disposed in this landfill shall be characterized in accordance with requirements below and Section 13.2, Table 13.2-4, WRF and Cooling Tower Sludge Disposal Landfill Sludge Sampling Parameters. Operations shall include routine characterization in accordance accordance with with this this permit.

permit.

6.2 Sludge Landfill Operational Requirements and Methods Sludge shaltshall be deposited by the area-fill method and covered with I1 foot of soil after placement. The landfill shall be maintained shall be maintained according according to to the the requirements requirements in in Table Table 13.2-1 13.2-1 Surface Surface lmpoundment Impoundment and BADCT Performance and BADCT Performance Standard Inspections and Standard Inspections and Alert Alert Monitoring.

Monitoring.

6.3 6.3 Sludge Sludge Landfill Landfill Discharge Discharge Limitations Limitations (A.R.S. §§

[A.R.S. §§49-201(14),49-201(14),49-243 49-243 andand A.A.C. R18-9-A20S(B)J A.A.C. R18-9-A205(B)]

The The Sludge Sludge Disposal Disposal Landfill Landfill shall shall be be operated, operated, maintained, maintained, designated designated and and authorized authorized to receive the to receive the following following materials materials only:only; I. Sludge

1. Sludge produced produced by by the the two-stage two-stage lime treatment process lime treatment process from from thethe WRF.

WRF. The The sludge sludge shall shall be be dewatered dewatered before it is placed in the landfill.

before it is placed in the landfill.

2. Sodium carbonate and sodium sulfate from the following sources:

(a) Spills at (a) Spills at the the unloading unloading and and silo silo stations; stations; (b)

(b) Spills Spills and and leaks leaks from from thethe chemical chemical feed feed andand transport transport lines; lines; and and (c) Neutralization materials and products from the neutralization of small sulfuric acid spills.

3. LimeLime grits from slaker stations and lime waste from the following sources:

i. Spills at the unloading and silo transfer stations; 1.

ii. Spills and leaks from the lime feed and transport lines; iii. Neutralization materials and products from the neutralization of small sulfuric acid spills; and iv. Clean out from the recalcination furnace

4. Groundwater or WSR water sprayed in limited quantities to remove residual sludge from the bed of the trucks. *

5. Cooling tower sludge, which meets the following requirements; (a) Concentrations of each isotope in the cooling tower sludge shall not exceed the limits imposed by ARRA Special Approval License No. 7-368, and amendments/revisions made to that license issued by ARRA; (Page 127 of Total) ADD58

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 61 of 78 ADEQS Arizona Department of Environmental Quality^'^QL AQUIFER AQUIFER PROTECTIONPROTECTION PERMIT PERMIT NO. NO. P-100388 P-100388 p.

p. 34 34 ofof 72 72 (b)

(b) The The sludge sludge shall shall not not meet meet the the definition definition of hazardous waste of hazardous waste asas defined defined inin 40 40 CFR CFR Part Part 26 261;I; and and c) The

((c) The sludge sludge shall shall not not contain contain rree free liquids.

liquids.

Failure Failure toto comply comply with with these these DLs shall be DLs shall be reported reported inin accordance accordance withwith Section 10.3, Permit Section 10.3, Permit Violation Violation and Alert and Alert Level Status Reporting and appropriate corrective actions taken in accordance Level Status Reporting and appropriate corrective actions taken in accordance with Section 9.4, Emergency with Section 9.4, Emergency

Response

Response and and Contingency Contingency Requirements Requirements for for Unauthorized Discharges and Unauthorized Discharges and Section Section 9.59.5 Corrective Corrective Actions.

Actions.

6.4 6.4 Sludge Sludge Landfill Landfill Sampling Sampling and and Monitoring Monitoring Requirements Requirements (A.R.S.[A.R.S. §§49-243(K)(I),49-243(K)(l), A.A.C. R18 A.A.C. R18 A206(A)J A206(A)I 6.4.1 6.4.1 Cooling Cooling Tower Tower Sludge Sludge The The permittee permittee shall shall sample sample cooling cooling towertower sludge sludge prior prior to to disposal disposal inin the the Sludge Sludge Disposal Disposal Landfill Landfill onon aa per per disposal disposal event event basis.

basis. The The samples samples shall be collected shall be collected and and evaluated according to evaluated according to Section Section 13.2, 13.2, Table 13.2-4, WRF and Cooling Tower Sludge Disposal Landfill Sludge Sampling Parameters and conformance conformance withwith ARRA ARRA Special Special Approval Approval License License 7-368 requirements and 7-368 requirements and restrictions.

restrictions.

I.

1. Samples shall be Samples shall be aa composite composite representing representing thethe horizontal horizontal and and vertical vertical distribution distribution of the sludge of the sludge rrom from each each accumulation accumulation area. area.

2.

2. Samples Samples for for radiological radiological analysis analysis shall be collected shall be collected andand evaluated evaluated in in accordance accordance with with ARRA ARRA Special Special Approval License No.

Approval License No. 7-368, 7-368, and and subsequent subsequent amendments amendments to to the ARRA license the ARRA license forfor this this Facility.

Facility.

3. The samples for radiological analysis shall be analyzed by equipment capable of detecting the presence of principal gamma-ray emitting isotopes.

4. The Radiological Environmental Monitoring Program Report shall be included in the Annual Monitoring and Compliance Report, submitted in accordance Section 10.4.1, Annual Reporting Requirements.

Requirements.

5. Exceeded ALs

5. Exceeded ALs in in Section Section 13.213.2 Table Table 13.2-4, 13.2-4, WRF WRF and and Cooling Cooling Tower Tower Sludge Disposal Landfill Sludge Disposal Landfill Sludge Sludge Sampling Sampling Parameters, Parameters, shall be reported shall be reported in in accordance accordance withwith Section Section 10.3, 10.3, Permit Permit Violation Violation and and Alert Alert Level Level Status Status Reporting.

Reporting.

6.

6. InIn accordance accordance with with Section Section I10.4.1, 0.4.1 , Annual Annual Reporting Reporting Requirements, the the Annual Annual Monitoring Monitoring and and Compliance Compliance ReportReport shall shall contain contain summary table(s) of summary table(s) of all all analytical analytical results results for for sludge testing sludge testing performed performed for disposal of for disposal of cooling cooling tower tower sludge sludge and WRF sludge and WRF sludge inin the the Sludge Sludge Disposal Disposal Landfill Landfill during during the the calendar calendar year.year. TheThe report report shall shall also also contain description of contain aa description the estimated of the estimated volumes volumes disposed during the previous year. Certified analytical laboratory reports (CARs) shall be maintained maintained at at the the Facility Facility APP APP files files and and presented presented to an an ADEQ ADEQ inspector inspector oror representative within 30 30 calendar calendar days days of of request.

request.

6.4.2 6.4.2 WRF WRF Sludge Sludge Sampling Sampling The The permittce permittee shall shall sample sample the WRF sludge the WRF sludge deposited deposited in the Sludge in the Disposal Landfill Sludge Disposal Landfill inin accordance accordance with with Section Section 13.2, 13.2, Table Table 13.2-4, 13.2-4, WRF WRF and and Cooling Cooling Tower Tower Sludge Sludge Disposal Disposal Landfill Landfill Sludge Sludge Sampling Sampling Parameters. The disposal of sludge materials shall be in accordance with Section 6 of this permit and shall be shall be limited limited toto those those materials materials listed listed as as authorized authorized for for disposal disposal in Discharge Limitations, in Discharge Limitations, Section Section 6.3, 6,3, Sludge Landfill Discharge Sludge Landfill Discharge Limitations.

Limitations.

6.4.3 6.4.3 Methane Methane Gas Gas Monitoring Monitoring I.

1. A A semiannual semiannual monitoring monitoring program program shall shall bebe implemented implemented for for aa 3-year 3-year period period to to ensure ensure that that methane gas concentrations remain below five (5) percent (%) by volume. If methane is not detected detected during during the the 3-year 3-year period, period, monitoring monitoring maymay be be discontinued discontinued withwith ADEQ ADEQ approval.

approval. In In order order to assess the effectiveness of the methane monitoring, the results of each monitoring event shall be submitted to ADEQ within 60 days after each event.

2.

2. The permittee shall operate and maintain methane gas monitoring equ. ipment to ensure that the equipment standards of standards of 40 40 CFRCFR §§ 257.3-257.3-8 8 are are met.

met. Such Such rotJtine routine methane methane monitoring monitoring shallshall include monitoring monitoring the the gas gas probes probes installed installed around around thethe landfill landfill footprint footprint as shown on as shown Figure 1I Methane on Figure Methane Monitoring Locations of Monitoring Locations of the the Methane Methane Monitoring Plan dated dated March March 31,2017.

31, 2017.

3.

3. The permittee must ensure, in accordance with 40 CFR § § 257.3-8, that the concentration of methane gas does not exceed:

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a. Twenty-five percent (25%) of the lower explosive limit for the gases in faci lity facility structures (excluding gas control or recovery system components), and b.

b. The The lower lower explosive explosive limit limit for for the the gases gases at at the the property property boundary.

boundary.

4.

4. !fa If a methane gas exceedance occurs at facility structures or at the faci lity property boundaries, as facility described above, the permittee shall immediately report the exceedance to ADEQ Solid Waste Unit as specified in Sections 10.3.1 10.3.1 and 10.5.

5.

5. The permittee shall initiate an investigation followed by corrective actions to resolve any problems identified by the investigation that may have led to an LEL exceedance. To implement any any corrective corrective action action thethe permittee permittee shall shall obtain obtain prior prior approval approval from from ADEQ.

ADEQ.

6.5 6.5 Sludge Sludge Landfill Landfill Contingency Contingency Plan Plan Requirements Requirements lfa If a sludge AL set in Section 13.2, Table 13.2-4, WRF and Cooling Tower Sludge Disposal Landfill Sludge Sampling Parameters has been exceeded, the permittee shall take the following actions:

I1.. Conduct verification sampling using Toxicity Characteristic Leaching Procedure (TCLP) extraction procedures and analytical methods within 5 business days of becoming aware of an AL being exceeded.

Submit analytical results of verification sampling to ADEQ within 30 calendar days of the sampling date.

2. Within 5 business days of discovery, notify the ADEQ Groundwater Section in writing and in accordance 2.

with Section 10.3, Permit Violation and Alert Level Statu.~ Status Reporting to determine the appropriate action(s).

action(s).

3. If sludge monitoring and disposal results require ARRA notification per the ARRA Special Approval 3.

License No. 7-368, and amendments due to specified limits being exceeded, the permittee shall notify the ADEQ Groundwater Section in writing within 5 business days of becoming aware of the condition or ARRA license exceedance.

4.

4. A scope of work that addresses corrective actions shall be submitted to the Department for review and comment within 60 calendar days of becoming aware of the exceeded level.

5. A corrective action plan for response to future exceedances and meeting ADEQ standards must be 5.

submitted to the Department for review within 180 calendar days after the limit(s) have been exceeded.

Upon Upon approval, ADEQ may approval, ADEQ may amend amend the permit to the permit to include include thethe corrective corrective action plan.

action plan.

6.6 6.6 Sludge Sludge Landfill Landfill Closure Closure Plan [A.R.S. §§ Plan [A.R.S. §§49-243()()(6),49-243(K)(6), 49-2S249-252 andand A.A.C.

A.A.C. R18-9-A209(B))

R18-9-A209(B)l Within Within 90 90 calendar calendar days days following following notification notification of of closure, closure, thethe permittee permittee shall shall submit submit forfor approval approval to to the the Groundwater Groundwater Section,Section, aa detailed detailed Closure Closure PlanPlan which which meets meets thethe requirements requirements of A.R.S. §§49-252 of A.R.S.49-252 andand A.A.C.

A.A.C.

RI 8-9-A209(8)(3)(a). At R18-9-A209(B)(3)(a). At the the conclusion conclusion of of site site operations operations the the permittee permittee shall shall cap cap the the Sludge Sludge Disposal Disposal Landfill Landfill and and leave leave all all materials materials in in place.

place. The The Sludge Sludge Disposal Disposal Landfill Landfill shall shall be be capped with 33 feet capped with feet of of low low permeability permeability soils, soils, compacted compacted and and capped capped to to facilitate facilitate drainage drainage and prevent standing and prevent water from standing water from accumulating accumulating above above the the cap.

cap. TheThe closure plan shaU closure plan shall include include Hydrologic Hydrologic Evaluation Evaluation of of Landfill Landfill Performance Performance (HELP)(HELP) or or subsequent subsequent modeling to modeling to demonstrate demonstrate that that nono fluids fluids will will infiltrate infiltrate and and reach reach thethe shallow shallow aquifer aquifer after after closure closure andand clean clean closure closure hashas been been achieved.

achieved. The The landfill landfill shall shall be be closed closed inin aa manner manner thatthat demonstrates demonstrates that that the the landfill landfill shall shall not not cause cause or or contribute contribute to to post-closure post-closure violation violation of of A WQS at AWQS at the the applicable applicable POC.POC. Closure Closure reports reports shall shall include include grading grading and and draining plans sealed draining plans sealed by by an an Arizona-registered Arizona-registered Professional Professional Engineer Engineer and and cross-sections eross-sections and and as-as-builts builts ofof the the landfill landfill cap.

cap.

Closure Closure activities activities shall shall include construction of include construction of storm water run-on stormwater run-on diversion diversion structures structures as necessary to as necessary to ensure ensure that that the the landfill landfill capcap is is protected protected from from erosion erosion andand standing standing water water does does not not infiltrate infiltrate the the land-filled land-filled materials.

materials.

If If the the closure closure planplan achieves achieves clean clean closure closure immediately, immediately, ADEQ ADEQ shallshall issue letter of issue aa letter of approval approval toto the the permittec.

permittee.

ff If the the closure closure planplan contains contains aa schedule schedule for for bringing bringing thethe facility facility to to aa clean clean closure closure configuration configuration at at aa future future date, date, ADEQ ADEQ may may incorporate incorporate any part of any part of the the schedule schedule as as an an amendment amendment to to this this permit.

permit.

7.0 7.0 RUBBISH RUBBISH LANDFJLL LANDFILL The The facility facility is is an an active, active, unlined unlined solid solid waste waste disposal facility that disposal faeility that receives receives PVNGS PVNGS solidsolid waste.

waste. Waste Waste isis deposited deposited into into trenches trenches and and covered covered withwith soil.

soil. The The landfill landfill isis located located on on the the east-central portion of east-central portion of the the PVNGS PVNGS site, site, east east of of the the switchyard switchyard and and south south of of the the WSR, WSR, and and isis approximately approximately I100 00 acres acres in in size.

size.

(Page 129 of Total) ADD60

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 63 of 78 AQUIFER AQUIFER PROTECTION PROTECTION PERMIT PERMIT NO. P-100388 NO. P-100388

p. 46

p. 46 of72 of 72 a.

a. Identification Identification and and description description of of the the permit permit condition condition for for which which there there has been aa violation has been violation and and description of aa description of its its cause.

cause.

b.

b. The The period period of of violation violation including including exact exact date(s) date(s) and and time(s),

time(s), if if known, known, and and the the anticipated anticipated timetime period period during during which which thethe violation violation is is expected expected to to continue.

continue.

c. Any corrective action taken or or planned planned to mitigate the to mitigate the effects effects of the violation, of the violation, or to eliminate or to eliminate or or prevent prevent aa recurrence recurrence of of the the violation.

violation.

d.

d. Any activity or monitoring activity Any monitoring or other other information information which which indicates indicates thatthat any any pollutants pollutants would would be be reasonably reasonably expected expected to to cause violation of cause aa violation of an an A WQS.

AWQS.

e.

e. Proposed Proposed changes changes to to the the monitoring monitoring which which include include changes changes in in constituents constituents or increased or increased frequency of frequency of monitoring.

monitoring.

f. Description of any malfunction or failure of pollution control devices or other equipment or processes.

processes.

g. Copies of

g. Copies of CARs, CARs, chain chain of of custody forms, and custody forms, and aa description description of of any any sampling sampling and and monitoring monitoring methods methods used used toto determine, determine, verifyverify or or assess assess compliance compliance status. status.

h.

h. For For exceeded exceeded ALs ALs andand AQLs AQLs in in an an APP APP monitoring monitoring well well listed in tables listed in tables in in Section Section 8. 8.11 or or 8.2, 8.2, the the 4545 day day report report submitted submitted to ADEQ shall to ADEQ shall also also contain contain the the most most recent recent contour maps for contour maps for the the appropriate appropriate aquifer.

aquifer.

For For any any condition condition lasting lasting more more thanthan 90 90 calendar calendar days, days, the pcrmittee shall the permittee commence quarterly shall commence quarterly status status reporting reporting to keep ADEQ to keep ADEQ informed informed of the status of the status of of investigations, investigations, assessments, repairs, and assessments, repairs, and corrective corrective actions.

actions. Status Status reports reports shall be submitted shall be submitted to to the the Groundwater Groundwater Section.

Section. TheThe status status reports reports shall provide an update on all response actions and a schedule for completing response actions.

These These reports shall be reports shall be submitted submitted until until such such time time asas the the condition condition is is corrected.

corrected.

10.3.1 10.3.1 Methane Methane Gas Gas Exceedance Exceedance Reporting Reporting The following notifications The following notifications are required if are required if there there is is aa methane methane gas gas exceedance:

exceedance:

I.

1. Within Within twenty-four twenty-four (24) (24) hours hours or or one one (I)

(1) business business day day ofof any any methane methane gas gas exceedance exceedance where the where the gas gas concentration concentration in in facility facility structures structures exceeds exceeds twenty-five percent (25%)

twenty-five percent (25%) of of the lower lower explosive explosive limitlimit oror gas gas concentrations concentrations at at the the landfill landfill boundary exceedexceed thethe lower lower explosive explosive limit, limit, the the permittee shall shall notify the the ADEQ Solid Solid Waste Waste Unit.

Unit.

2. Within seven (7) days of detection, the permittee shall place in the operating record a description of the steps taken to protect human health. A copy of this description shall be be sent sent to to the the ADEQ ADEQ Solid Solid Waste Waste Unit.Unit.

Within sixty Within sixty (60)

(60) days days of of detection detection of of any methane gas any methane gas exceedance, exceedance, aa remediation remediation planplan shall shall be be implemented and a copy of the plan placed in the operating record. A copy of the implemented and a copy of the plan placed in the operating record. A copy of plan, the plan, accompanied by a notification that the plan has been implemented, shall be sent to the ADEQ Solid Waste Unit.

10.4 10.4 Operational, Operational, OtherOther or or Miscellaneous Miscellaneous ReportingReporting 10.4.1 10.4.1 Annual Annual Reporting Reporting Requirements Requirements The goal and purpose of annual reporting requirements are to allow the permittee and ADEQ to keep current the status of the permit compliance and performance under this permit to assure the public that human health and the environment including future and foreseeable drinking water uses of groundwater are protected through implementation of all provisions of of tllis this permit.

permit. The The secondary secondary purpose purpose is is to to allow allow constant constant assessment assessment of of the the adequacy adequacy of of this this permit permit in in achieving achieving the the primary primary goal goal and and to to allow allow rapid rapid determinations determinations to to bebe made made regarding the potential need for revision or amendment of the permit and more specifically, the monitoring provisions of this permit. Appropriate components of the report required by this Section shall be sealed by an Arizona-registered Geologist or Professional Engineer, Engineer. in accordance accordance with with Arizona Arizona BoardBoard of of Technical Technical Registration Registration (BTR) (BTR) requirements.

requirements.

A.

A. Annual Annual Monitoring Monitoring and and Compliance Compliance Report Report Each year the permittce permittee shall submit a report to the Groundwater Section summarizing the results of the facility's facilitys performance and include a copy of the Radiological (Page 130 of Total) ADD61

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 64 of 78

@m~

ADEQ^

of Eovironmmcal Q u a l i ~

of Environmental Quality^^t AQUIFER PROTECTION PERMIT PERMIT NO. NO. P-100388

p. 47

p. 47 of72 of 72 Environmental Environmental Monitoring Monitoring Program Program annual annual report.

report. TheThe report report shall shall be be divided divided into into Groundwater Groundwater Monitoring, Monitoring, lmpoundment Impoundment Monitoring, Sludge Monitoring, Monitoring, Sludge Monitoring, and and Compliance Compliance Status Status under under thisthis permit.

permit. The report shall The report shall also also include include identification identification and and discussion of any laboratory results that fall outside of the laboratory's laboratorys QA/QC criteria and and the detection levels the detection levels required required byby this this permit.

permit. TheThe report shall contain report shall contain the the following following sections with the sections with the speci tied in specified formation:

information:

I.

1. Groundwater Groundwater Monitoring Monitoring This This section section of of the the report report shall shall contain contain the the following following information:

information:

a.

a. Semiannual shallow groundwater Semiannual shallow groundwater maps.

maps.

Groundwater Groundwater contouring contouring may may be performed by be performed by hand hand oror by by using using an an accepted accepted computer computer program/

program/ model.

model. All All calculations calculations forfor contouring contouring shall shall be be included included inin the the submittal.

submittal.

2.

2. lmpoundment Impoundment Monitoring Monitoring This section ofof the report shallshall contain the following information:

a.

a. LCRS LCRS sump sump monitoring monitoring results; results; Summaries of

b. Summaries

b. of analytical analytical results; results;

c. Summary of

c. Summary of maintenance maintenance and and repair repair activities; activities;

d. Summary of

d. Summary of the the results results of of all all liner liner leakage; leakage; and, and, e.

e. Summary tables ofall Summary tables of all basin, basin, impoundrnent impoundment and and reservoir reservoir data data which which alJows allows data data to to be be readily readily compared compared to to leakage leakage and and discharge discharge quality quality ALs and previous ALs and previous data.

data.

3.

3. Sludge Sludge Monitoring Monitoring This This section section of of the the report report shall shall contain contain the the following following information:

information:

a.

a. WRFWRf sludge sludge monitoring monitoring analytical analytical results; results; b.

b. Cooling Cooling Tower Tower analytical analytical results; results;

c. Summary of any exceedaocesexceedances of permit limits for sludge quality;

d. Description of of any violations of the ARRA Special License for sludge radioisotope limits; and,

e. The Radiological Environmental Monitoring Program Report (REMP).

Radiological Environmental

4. Methane Monitoring This section ofof the report shallshall contain the following information:

a. Methane monitoring results 10.4.2 Ambient Groundwater Monitoring Reports An Ambient Groundwater Monitoring Report is required for each new well installed that is incorporated into the monitoring program of this permit.

10.4.2.

10.4.2.11 Reporting Reporting Requirements Requirements The The Ambient Ambient Groundwater Groundwater Monitoring Monitoring Report Report is is due due 45 45 calendar calendar days days from from the the conclusion of conclusion of the the ambient ambient groundwater groundwater monitoring monitoring period period (no (no less less than than 88 quarterly quarterly rounds) for each well. This report shall be accompanied by a request for permit permit amendment and fees to establish ALs and AQLs for the new well, a spreadsheet of the groundwater data for the well and calculations used to evaluate the data statistically, and ALs and AQLs based on statistical assessment of 8 rounds of groundwater data. Appropriate components of the report shall be sealed by an Arizona-registered Geologist or Professional Engineer, in accordance with Arizona BTR requirements.

The Ambient Groundwater Monitoring Report shall also include groundwater elevation measurements, groundwater flow calculations and semiannual groundwater contour maps prepared by hand or using an accepted computer program/ model for each round of samples using elevations collected collected for alJ all on-site monitoring wells in the same aquifer as the new well. The Ambient Groundwater Monitoring Report shall include an assessment assessment of groundwater flow, the adequacy (Page 131 of Total) ADD62

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 65 of 78 ADEQS Arizona Department of ^vironmcntal Environmental R

AQUIFER AQUIFER PROTECTION PROTECTION PERMIT PERMIT NO. NO. P-100388 P-100388

p. 59

p. 59 of72 of 72 13.0 13.0 TABLES TABLES OF OF MONITORI.NG MONITORING REQUIREMENTS REQUIREMENTS 13.l 13.1 Pre-operational Pre-operational Monitoring Monitoring (or (or Construction)

Construction) Requirements Requirements None None 13.2 13.2 Compliance Compliance (or (or Operational)

Operational) Monitoring Monitoring Table Table 13.2-1 13.2-1 -- Surface Surface lmpoundment Impoundment and and BADCT BADCT Performance Performance Standard Standard Inspection Inspection &

& Alert Alert Monitoring Monitoring Table 13.2-2 -- Evaporation Ponds and Water Storage Reservoirs Flow Rate and LCRS Fluid Level Monitoring Monitoring Points Points Table 13.2-3 -- WSR and Evaporation Pond LCRS Monitoring Alert Levels Table 13.2.4 -- WRF and Cooling Tower Sludge Disposal Landfill Sludge Sampling Parameters Table 13.2-5 -- POC Table 13.2-5 POC Well Well PV-R2AR, PV-R2AR, Semiannual Semiannual Groundwater Groundwater Monitoring Monitoring 13.J 13 J Contingency Monitoring Contingency Monitoring Table 13.3-1 -- Contingency LCRS Monitoring, 85-acre WSR and 45-acre WSR Table 13.3-2 -- Contingency Plant Upset and Overtopping Releases to Unlined Facilities Sampling Table 13.3-3 -- Evaporation Ponds Contingency Wastewater Sampling Locations for Overtopping of the Surface Surface lmpoundment Impoundment Table Table 13.3-4 13.3-4 -- Evaporation Evaporation Pond Pond Contingenc Contingencyy Wastewater Wastewater and and LCRS LCRS Fluid Fluid Sampling Sampling (Page 132 of Total) ADD63

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 66 of 78 AQUIFER AQUIFER PROTECTION PROTECTION P ERMIT NO.

PERMIT NO. P-100388 P-100388

p. 64

p. 64 of72 of 72 Table Table 13.2-4 13.2-4 Water Water Reclamation Reclamation FacilityFacility (WRF)

(WRF) Sludge Sludge andand Cooling Cooling Towe Towerr Sludge Sludge Sampling Sampling Parameters Parameters Monitoring Monitoring Reporting Reporting Parameter Parameter Units Units AL (RCRA AL (RCRA TCLP) TCLP) Freque ncy*

Frequency' Freque Frequencyncy pH pH SU SU <2,> 12.5

<2,>12.5 Semi-annually Semi-annually Annually Annually Arsenic Arsenic mg/L mg/L 5.0 5.0 Semi-annually Semi-annually Annually Annually Barium Barium mg/L mg/L 100.0 100.0 Semi-annually Semi-annually Annually Annually Cadmium Cadmium mg/L mg/L 1.0 1.0 Semi-annually Semi-annually Annually Annually Chromium Chromium (Total)

(Total) mg/L mg/L 5.0 5.0 Semi-annually Semi-annually Annually Annually Lead Lead mg/L mg/L 5.0 5.0 Semi-annually Semi-annually AnnualJy Annually Mercury Mercury mg/L mg/L 0.2 0.2 Semi-annually Semi-annually Annually Annually Selenium Selenium mg/L mg/L 1.0 1.0 Semi-annually Semi-annually Annually Annually Silver Silver mg/L mg/L 5.0 5.0 Semi-annually Semi-annually Annually Annually Liquid^2 Free Liquid --

Pass/Fail Pass/Fail Semi-annually Semi-annually Annually Annually 1 The The WRF WRF sludge sludge shall shall be be characterized, characterized, including including paint paint filter filter test test or or equivalent equivalent test test method, method, through through representative representative sampling sampling on on a semi-annual basis (2 times per year) in accordance with requirements in this permit. Cooling tower a semi-annual basis (2 times per year) in accordance with requirements in this permit. Cooling tower sludge sludge shall shall be be characterized characterized on on aa per per disposal disposal event event basis.

basis.

22 Characterization Characterization shall shall include include the the paint paint filter test or filter test or an an equivalent equivalent test test method.

method.

SU SU == standard standard units units mg/L milligram per mg/L == milligram per liter liter - == Unitless

~ Unitless RCRA TCLP =

RCRA TCLP = Resource Resource Recovery Recovery andand Conservation Conservation Act Act Toxicity Toxicity Characteristic Characteristic Leaching Leaching Procedure Procedure SMRF SMRF Reporting Reporting is is not not necessary necessary under under this this table.

table.

(Page 133 of Total) ADD64

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 67 of 78 ATTACHMENT 2 Arizona Department of Health Services - Bureau of Radiation Control Special Approval License No.07-368, Amendment No. 11 (Mar. 15, 2018) for the Palo Verde Nuclear Generating Station (Page 134 of Total) ADD65

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 68 of 78 ARRA-3 Page I of I ARIZONA DEPARTMENT OF HEALTH SERVICES BUREAU OF RADIATION CONTROL SPECIAL APPROVAL LICENSE Pursuant to Chapter 4, Title 30, Arizona Revised Statutes, and Title 12, Chapter I of the Arizona Administrative Code, and in reliance on statements and representations made to the Department by the applicant, an approval is hereby issued authorizing the release to unrestricted areas, of the radioactive material listed in this special approval LICENSE for the purposes and at the places specified. This special approval LICENSE does not authorize the possession or use of radioactive materials. This special approval LICENSE is subject to all applicable rules and Department orders now or hereafter in effect and to the conditions speci fied. In accordance with AAC Rl2-1-434 A, and A.A.C. R12-1-43S, and letter dated January 31, 2018 signed by Michael DiLorcnzo, the following Special Approval License is issued: ALL CHANGES ARE IN BOLD LICENSEE

3. a. LICENSE NUMBER: 07-368

1. LICENSEE: Arizona Public Service Company b. AMENDMENT NO.: 11 Palo Verde Nuclear Generating Station

2. ADDRESS: P.O. Box 52034 4 EXPIRATION DATE:

Phoenix, AZ 85072-2034

6. This Special Approval License supersedes pecial Approval J.,icense, Amendment No. 10, issued May 20, 2013. This Special Approval License is equivalent to the Spechd Permit required by A.R.S. §49-762.06.

7. The Licensee listed in I. above may isP,9se of sediment and sludge conJaining trace amounts of radioactive material in accordance with the procedures ~ul,mitted ith the application, and as clescril,ed in the Palo Verde Nuclear Generating Station, Aquifer Protection Per,m 't Numbe [0038-8, as a ended, iss ed o the ADEQ.

~ , / ,,,_

As provided in 5.8 and 5.9 of PVNGS stati n procedure No. WROP-8Z,Z04, as submitted with letter dated January 31, 2018, the average aggregate concenttation of ra~ioactive materials in the sediment and sludge disposed of pursuant to this Special Approval License shall not e ceeq1 t~e c9~centr~tions liste in Table Ill, Appendix B, Article 4. The maximum individual sample concenti:atton ofradibactive rilater1als may not exceed, ten times the concentrations listed in said Table UI per accumulation area. \Vh,ere multiple radioac~ive isotopes are involved, the "Rule ofUnity" as described in footnote 4. of such Appendix hall apply.

This Special Approval License is subject to.t e provisions of A.R.S.'30-681 through 30-689 as amended.

In the event radioactive materials are found in the sediment and ~lodge in concentrations greater than specified in Condition 8. above, the Licensee shall control the sludge at a suitable storage location, pursuant to the authority granted in a License issued by the U.S. Nuclear Regulatory Commission, until decay reduces the concentration to below such level or the material is disposed of by transfer to a licensed waste processor.

The licensee may follow procedures in attachments to letter dated January 31, 2018.

A. PVNGS Procedure WROP-8ZZ04, WRF Landfill Operation Procedure, Re:v. '

~

POST IN ACCORDANCE WITH R12-1-1002 (Page 135 of Total) ADD66

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 69 of 78 Addendum Pursuant to Federal Rule of Appellate Procedure 28(f)

(Page 136 of Total)

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 70 of 78 42 U.S.C. § 2021

§ 2021. Cooperation with States (b) Agreements with States Except as provided in subsection (c), the Commission is authorized to enter into agreements with the Governor of any State providing for discontinuance of the regulatory authority of the Commission under subchapters V, VI, and VII of this division, and section 2201 of this title, with respect to any one or more of the following materials within the State:

(1) Byproduct materials (as defined in section 2014(e) of this title).

(2) Source materials.

(3) Special nuclear materials in quantities not sufficient to form a critical mass.

During the duration of such an agreement it is recognized that the State shall have authority to regulate the materials covered by the agreement for the protection of the public health and safety from radiation hazards.

(c) Commission regulation of certain activities No agreement entered into pursuant to subsection (b) shall provide for discontinuance of any authority and the Commission shall retain authority and responsibility with respect to regulation of (1) the construction and operation of any production or utilization facility or any uranium enrichment facility; (2) the export from or import into the United States of byproduct, source, or special nuclear material, or of any production or utilization facility; (3) the disposal into the ocean or sea of byproduct, source, or special nuclear waste materials as defined in regulations or orders of the Commission (4) the 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.

The Commission shall also retain authority under any such agreement to make a determination that all applicable standards and requirements have been met prior to termination of a license for byproduct material, as defined in section 2014(e)(2) of this title. Notwithstanding any agreement between the Commission and any State pursuant to subsection (b), the Commission is authorized by rule, regulation, or order to require that the manufacturer, processor, or producer of any equipment, device, commodity, or other product containing source, byproduct, or special nuclear ADD67 (Page 137 of Total)

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 71 of 78 material shall not transfer possession or control of such product except pursuant to a license issued by the Commission.

ADD68 (Page 138 of Total)

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 72 of 78 10 C.F.R. § 20.2001

§ 20.2001 General requirements.

(a) A licensee shall dispose of licensed material only (1) By transfer to an authorized recipient as provided in § 20.2006 or in the regulations in parts 30, 40, 60, 61, 63, 70, and 72 of this chapter; (2) By decay in storage; or (3) By release in effluents within the limits in § 20.1301; or (4) As authorized under §§ 20.2002, 20.2003, 20.2004, 20.2005, or 20.2008.

(b) A person must be specifically licensed to receive waste containing licensed material from other persons for:

(1) Treatment prior to disposal; or (2) Treatment or disposal by incineration; or (3) Decay in storage; or (4) Disposal at a land disposal facility licensed under part 61 of this chapter; or (5) Disposal at a geologic repository under part 60 or part 63 of this chapter.

ADD69 (Page 139 of Total)

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 73 of 78 10 C.F.R. § 20.2002

§ 20.2002 Method for obtaining approval of proposed disposal procedures.

A licensee or applicant for a license may apply to the Commission for approval of proposed procedures, not otherwise authorized in the regulations in this chapter, to dispose of licensed material generated in the licensees activities. Each application shall include:

(a) A description of the waste containing licensed material to be disposed of, including the physical and chemical properties important to risk evaluation, and the proposed manner and conditions of waste disposal; and (b) An analysis and evaluation of pertinent information on the nature of the environment; and (c) The nature and location of other potentially affected licensed and unlicensed facilities; and (d) Analyses and procedures to ensure that doses are maintained ALARA and within the dose limits in this part.

ADD70 (Page 140 of Total)

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 74 of 78 10 C.F.R. § 50.109

§ 50.109 Backfitting.

(a)(1) Backfitting is defined as the modification of or addition to systems, structures, components, or design of a facility; or the design approval or manufacturing license for a facility; or the procedures or organization required to design, construct or operate a facility; any of which may result from a new or amended provision in the Commission's regulations or the imposition of a regulatory staff position interpreting the Commission's regulations that is either new or different from a previously applicable staff position after:

(i) The date of issuance of the construction permit for the facility for facilities having construction permits issued after October 21, 1985; (ii) Six (6) months before the date of docketing of the operating license application for the facility for facilities having construction permits issued before October 21, 1985; (iii) The date of issuance of the operating license for the facility for facilities having operating licenses; (iv) The date of issuance of the design approval under subpart E of part 52 of this chapter; (v) The date of issuance of a manufacturing license under subpart F of part 52 of this chapter; (vi) The date of issuance of the first construction permit issued for a duplicate design under appendix N of this part; or (vii) The date of issuance of a combined license under subpart C of part 52 of this chapter, provided that if the combined license references an early site permit, the provisions in § 52.39 of this chapter apply with respect to the site characteristics, design parameters, and terms and conditions specified in the early site permit. If the combined license references a standard design certification rule under subpart B of 10 CFR part 52, the provisions in § 52.63 of this chapter apply with respect to the design matters resolved in the standard design certification rule, provided however, that if any specific backfitting limitations are included in a referenced design certification rule, those limitations shall govern. If the combined license references a standard design approval under subpart E of 10 CFR part 52, the provisions in

§ 52.145 of this chapter apply with respect to the design matters resolved in the standard design approval. If the combined license uses a reactor manufactured under a manufacturing license under subpart F of 10 CFR part 52, the provisions of ADD71 (Page 141 of Total)

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 75 of 78

§ 52.171 of this chapter apply with respect to matters resolved in the manufacturing license proceeding.

(2) Except as provided in paragraph (a)(4) of this section, the Commission shall require a systematic and documented analysis pursuant to paragraph (c) of this section for backfits which it seeks to impose.

(3) Except as provided in paragraph (a)(4) of this section, the Commission shall require the backfitting of a facility only when it determines, based on the analysis described in paragraph (c) of this section, that there is a substantial increase in the overall protection of the public health and safety or the common defense and security to be derived from the backfit and that the direct and indirect costs of implementation for that facility are justified in view of this increased protection.

(4) The provisions of paragraphs (a)(2) and (a)(3) of this section are inapplicable and, therefore, backfit analysis is not required and the standards in paragraph (a)(3) of this section do not apply where the Commission or staff, as appropriate, finds and declares, with appropriated documented evaluation for its finding, either:

(i) That a modification is necessary to bring a facility into compliance with a license or the rules or orders of the Commission, or into conformance with written commitments by the licensee; or (ii) That regulatory action is necessary to ensure that the facility provides adequate protection to the health and safety of the public and is in accord with the common defense and security; or (iii) That the regulatory action involves defining or redefining what level of protection to the public health and safety or common defense and security should be regarded as adequate.

ADD72 (Page 142 of Total)

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 76 of 78 10 C.F.R. § 150.10

§ 150.10 Persons exempt.

Except as provided in §§ 150.15, 150.16, 150.17, 150.17a, and 150.19, any person in an Agreement State who manufactures, produces, receives, possesses, uses, or transfers byproduct material, source material, or special nuclear material in quantities not sufficient to form a critical mass is exempt from the requirements for a license contained in Chapters 6, 7, and 8 of the Act, regulations of the Commission imposing licensing requirements upon persons who manufacture, produce, receive, possess, use, or transfer such materials, and from regulations of the Commission applicable to licensees. The exemptions in this section do not apply to agencies of the Federal government as defined in § 150.3.

ADD73 (Page 143 of Total)

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 77 of 78 10 C.F.R. § 150.15

§ 150.15 Persons not exempt.

(a) Persons in agreement States are not exempt from the Commissions licensing and regulatory requirements with respect to the following activities:

(1) The construction and operation of any production or utilization facility. As used in this subparagraph, operation of a facility 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.

(2) The export from or import into the United States of byproduct, source, or special nuclear material, or of any production or utilization facility.

(3) The disposal into the ocean or sea of byproduct, source, or special nuclear waste materials, as defined in regulations or orders of the Commission. For purposes of this part, ocean or sea means any part of the territorial waters of the United States and any part of the international waters.

(4) The transfer, storage or disposal of radioactive waste material resulting from the separation in a production facility of special nuclear material from irradiated nuclear reactor fuel. This subparagraph does not apply to the transfer, storage or disposal of contaminated equipment.

(5) The 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 transfer of possession or control by the manufacturer, processor, or producer of any equipment, device, commodity, or other product containing source material or byproduct material whose subsequent possession, use, transfer, and disposal by all other persons are exempted from licensing and regulatory requirements of the Commission under Parts 30 and 40 of this chapter.

(7) The storage of:

(i) Spent fuel in an independent spent fuel storage installation (ISFSI) licensed under part 72 of this chapter, (ii) Spent fuel and high-level radioactive waste in a monitored retrievable storage installation (MRS) licensed under part 72 of this chapter, or ADD74 (Page 144 of Total)

USCA Case #19-1240 Document #1864242 Filed: 09/30/2020 Page 78 of 78 (iii) Greater than Class C waste, as defined in part 72 of this chapter, in an ISFSI or an MRS licensed under part 72 of this chapter; the GTCC waste must originate in, or be used by, a facility licensed under part 50 of this chapter.

(8) Greater than Class C waste, as defined in part 72 of this chapter, that originates in, or is used by, a facility licensed under part 50 of this chapter and is licensed under part 30 and/or part 70 of this chapter.

(b) Notwithstanding any exemptions provided in this part, the Commission may from time to time by rule, regulation, or order, require that the manufacturer, processor, or producer of any equipment, device, commodity, or other product containing source, byproduct, or special nuclear material shall not transfer possession or control of such product except pursuant to a license or an exemption from licensing issued by the Commission.

ADD75 (Page 145 of Total)