ML21054A310

2-19-21 Joint Appendix (DC Cir.)(Case No. 19-1240)

ML21054A310
Person / Time
Site:	Nuclear Energy Institute
Issue date:	02/19/2021
From:	Andrew Averbach, Bonanno J, Croley S, Ginsberg E, Heminger J, O'Neill M, Rund J, Jennifer Scro, Williams J, Marian Zobler Latham & Watkins, NRC/OGC, Nuclear Energy Institute, US Dept of Justice, Environment & Natural Resources Div
To:	US Federal Judiciary, Court of Appeals, for the District of Columbia Circuit
References
1886227, 19-1240
Download: ML21054A310 (61)

Text

USCA Case #19-1240 Document #1886227 Filed: 02/19/2021 Page 1 of 61 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 JOINT APPENDIX Marian L. Zobler Steven P. Croley Andrew P. Averbach Latham & Watkins LLP Jennifer Scro 555 Eleventh Street, NW Office of the General Counsel Suite 1000 U.S. Nuclear Regulatory Commission Washington, DC 20004 11555 Rockville Pike (202) 637-2200 Rockville, MD 20852 steven.croley@lw.com (301) 415-1956 Ellen C. Ginsberg andrew.averbach@nrc.gov Jonathan M. Rund Counsel for Respondent U.S. Nuclear Jerry Bonanno Regulatory Commission Nuclear Energy Institute 1201 F Street, NW Suite 1100 Washington, DC 20004-1218 (202) 739-8000 February 19, 2021 Counsel for Petitioner Additional counsel listed on inside cover

USCA Case #19-1240 Document #1886227 Filed: 02/19/2021 Page 2 of 61 Jean E. Williams Acting Assistant Attorney General Justin D. Heminger Attorney Environment and Natural Resources Division U.S. Department of Justice Post Office Box 7415 Washington, DC 20044 (202) 514-5442 justin.heminger@usdoj.gov Counsel for Respondent United States of America

USCA Case #19-1240 Document #1886227 Filed: 02/19/2021 Page 3 of 61 INDEX TO JOINT APPENDIX Document Description Page Certified Index of the Record JA1 Memorandum from Guy H. Cunningham III, NRC Executive Legal Director, to Harold R. Denton, Director, NRR: Jurisdiction Over Low-Level Waste Management at Reactor Sites in Agreement States (Sept. 13, 1985) JA5 NRC Office of Inspection and Enforcement Information Notice No. 86-90: Requests to Dispose of Very Low-Level Radioactive Waste Pursuant to 10 CFR 20.302 (Nov. 3, 1986) JA9 Letter from Brian McDermott, NRC, to All Agreement States Providing Clarification of the Authorization for Alternate Disposal of Material Issued Under 10 CFR 20.2002 and Exemption Provisions in 10 CFR (FSME-12-025) (Mar. 13, 2012) JA12 NRC Regulatory Issue Summary 2016-11: Requests to Dispose of Very Low-Level Radioactive Waste Pursuant to 10 CFR 20.2002 (Nov. 13, 2016) JA16 Letter from Michael Murray, STP Nuclear Operating Company, to Brian Holian, Acting Director, NRC (Aug. 14, 2018) (with attachments 1 and 2) JA21 Letter from Craig G. Erlanger, Director, Office of Nuclear Reactor Regulation, to G. T. Powell, President and CEO/CNO, STP Nuclear Operating Company (Oct. 31, 2018) JA31 Letter from Ellen C. Ginsberg, Nuclear Energy Institute, to Ho Nieh and Scott Moore, NRC (Feb. 28, 2019) JA34 Letter from John Christian, President, EnergySolutions, LLC, to Craig G. Erlanger, NRC (Apr. 8, 2019) JA44 Letter from David Carlson, President & COO, Waste Control Specialists, to John Lubinski, NRC (July 17, 2019) JA45 Notice of September 6, 2019 Public Meeting (Sept. 4, 2019) JA48

USCA Case #19-1240 Document #1886227 Filed: 02/19/2021 Page 4 of 61 Document Description Page Letter from John W. Lubinski, NRC, to Ellen C. Ginsberg, Nuclear Energy Institute (Sept. 16, 2019) JA51 Summary of September 6, 2019 Public Meeting (Oct. 2, 2019) JA54 ii

USCA Case #19-1240 Document #1886227 Filed: 02/19/2021 Page 5 of 61 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT NUCLEAR ENERGY INSTITUTE, )

Petitioner, )

)

v. ) No. 19-1240

)

UNITED STATES NUCLEAR )

REGULATORY COMMISSION and )

the UNITED STATES OF AMERICA, )

Respondents. )

CERTIFIED INDEX OF THE RECORD I certify to the best of my knowledge and belief that the documents listed on the attached index constitute the record before the agency relating to the letter of the United States Nuclear Regulatory Commission (NRC) staff dated September 16, 2019, which is attached as Exhibit B to the Petition for Review in this matter filed on November 15, 2019.

By preparing this index, NRC does not concede that the action identified in the Petition for Review constitutes final agency action.

The parties have agreed that the joint appendix prepared in this matter can include documents listed in this certified index as well as the materials to which they cite.

JA1

USCA Case #19-1240 Document #1886227 Filed: 02/19/2021 Page 6 of 61 Respectfully Submitted,

/s/ Andrew P. Averbach ANDREW P. AVERBACH Solicitor Office of the General Counsel U.S. Nuclear Regulatory Commission (301) 415-1956 February 10, 2020 2

JA2

USCA Case #19-1240 Document #1886227 Filed: 02/19/2021 Page 7 of 61 CERTIFIED INDEX OF RECORD NUCLEAR ENERGY INSTITUTE V. UNITED STATES NUCLEAR REGULATORY COMMISSION (NO. 19-1240)

ID NO. DESCRIPTION DOCUMENT ACCESSION DATE NUMBER 1 Memorandum from Guy H. Cunningham III, NRC 09/13/1985 ML103430216 Executive Legal Director to Harold R. Denton, Director, NRR, "Jurisdiction Over Low-Level Waste Management at Reactor Sites in Agreement States" 2 Information Notice No. 86-90, "Requests to Dispose 11/03/1986 ML031250358 of Very Low-Level Radioactive Waste Pursuant to 10 CFR 20.302" 3 "Clarification of The Authorization for Alternate 03/13/2012 ML12065A038 Disposal of Material Issued Under 10 CFR 20.2002 and Exemption Provisions in 10 CFR (FSME-12-025)"

4 NRC Regulatory Issue Summary 2016-11, "Requests 11/13/2016 ML16007A488 to Dispose of Very Low-Level Radioactive Waste Pursuant to 10 CFR 20.2002" 5 Letter from Michael Murray, STP Nulcear Operating 08/14/2018 ML18226A352 Company, to Brian Holian, NRC 6 Letter from Craig G. Erlanger, NRC, to G.T. Powell, 10/31/2018 ML18260A250 STP Nuclear Operating Company 7 Notice of Public Meeting with STP Nuclear Operating 02/14/2019 ML19045A425 Company 8 Letter from Ellen C. Ginsberg, Nuclear Energy 02/28/2019 ML19086A320 Institute, to Ho Nieh and Scott Moore, NRC 9 Letter from John W. Lubinski, NRC, to Ellen C. 04/04/2019 ML19087A039 Ginsberg, Nuclear Energy Institute JA3 Page 1 of 2

USCA Case #19-1240 Document #1886227 Filed: 02/19/2021 Page 8 of 61 ID NO. DESCRIPTION DOCUMENT ACCESSION DATE NUMBER 10 Letter from John Christian, EnergySolutions, LLC, to 04/08/2019 ML19121A550 Craig G. Erlanger, NRC 11 Letter from David Carlson, Waste Control Specialist , 07/17/2019 ML19206A452 to John Lubinski, NRC 12 Letter from John W. Lubinski, NRC, to David Carslon, 08/01/2019 ML19212A165 Waste Control Specialists 13 Notification of Upcoming September 6, 2019 Public 08/21/2019 ML19227A335 Meeting 14 Notice of September 6, 2019 Public Meeting 09/04/2019 ML19247B399 15 September 6, 2019 Public Meeting Slides 09/06/2019 ML19246A142 16 Letter from John W. Lubinski, NRC, to David Carslon, 09/16/2019 ML19210B091 Waste Control Specialists 17 Letter from John W. Lubinski, NRC, to Ellen C. 09/16/2019 ML19224A774 Ginsberg, Nuclear Energy Institute 18 Summary of September 6, 2019 Public Meeting 10/02/2019 ML19262G460 19 List of Attendees at September 6, 2019 Public 10/02/2019 ML19262G459 Meeting JA4 Page 2 of 2

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USCA Case #19-1240 Document #1886227 Filed: 02/19/2021 Page 16 of 61 March 13, 2012 ALL AGREEMENT STATES CLARIFICATION OF THE AUTHORIZATION FOR ALTERNATE DISPOSAL OF MATERIAL ISSUED UNDER 10 CFR 20.2002 AND EXEMPTION PROVISIONS IN 10 CFR (FSME-12-025)

Purpose:

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

Background:

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

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

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

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

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

equivalent regulation to dispose of material at an unlicensed facility in another Agreement State. In this situation, both Agreement States would need to become involved. The Agreement State that regulates the licensee seeking to dispose of JA12

USCA Case #19-1240 Document #1886227 Filed: 02/19/2021 Page 17 of 61 FSME-12-025 2 material at an unlicensed facility in another Agreement State would need to approve facility would then need to obtain a license or an exemption from its Agreement State prior to accepting the material for disposal.

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

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

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

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

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

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

JA13

USCA Case #19-1240 Document #1886227 Filed: 02/19/2021 Page 18 of 61 FSME-12-025 In summary, the operator of an unlicensed facility receiving NRC and Agreement State regulated waste for disposal must receive either an exemption or a license from the appropriate regulatory authority (either the NRC or an Agreement State depending on the location of the disposal site) prior to receiving or disposal of the material.

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

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

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

/RA/

Brian J. McDermott, Director Division of Materials Safety and State Agreements Office of Federal and State Materials and Environmental Management Programs JA14

USCA Case #19-1240 Document #1886227 Filed: 02/19/2021 Page 19 of 61 FSME-12-025 In summary, the operator of an unlicensed facility receiving NRC and Agreement State regulated waste for disposal must receive either an exemption or a license from the appropriate regulatory authority (either the NRC or an Agreement State depending on the location of the disposal site) prior to receiving or disposal of the material.

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

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

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

/RA/

Brian J. McDermott, Director Division of Materials Safety and State Agreements Office of Federal and State Materials and Environmental Management Programs Distribution: DCD (SP03)

MSSA r/f ML12065A038 OFC MSSA MSSA OGC MSSA DWMEP MSSA JBiggins for NAME SPoy DSollenberger BJones DWhite LCamper BMcDermott (email)

DATE 03/ 5 /12 03/ 5 /12 01/ 23 /12 03/ 5 /12 03/ 7 /12 03/ 13 /12 OFFICIAL RECORD COPY JA15

USCA Case #19-1240 Document #1886227 Filed: 02/19/2021 Page 20 of 61 UNITED STATES NUCLEAR REGULATORY COMMISSION OFFICE OF NEW REACTORS OFFICE OF NUCLEAR REACTOR REGULATION OFFICE OF NUCLEAR MATERIAL SAFETY AND SAFEGUARDS WASHINGTON, DC 20555-0001 November 13, 2016 NRC REGULATORY ISSUE

SUMMARY

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

INTENT The U.S. Nuclear Regulatory Commission (NRC) is issuing this Regulatory Issue Summary the application process for obtaining approvals to dispose of low-level waste (LLW) in accordance with Title 10 of the Code of Federal Regulations (10 CFR) 20.2002 regulations, or equivalent Agreement State regulations.

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

BACKGROUND INFORMATION authority of Agreement States in reviewing and approving requests to dispose of low-level radioactive waste pursuant to 10 CFR 20.302 (now 10 CFR 20.2002 1). IN 1986-90 incorrectly stated that in cases where a nuclear reactor facility is located in an Agreement State, the NRC does not have the legal basis for performing the reviews and granting approvals. The NRC performed a regulatory review of the 10 CFR 20.2002 process and determined that IN 1986-90 did not provide the correct information regarding regulatory approval to dispose of very low-level waste. The NRC issued an official clarification of the process to Agreement State regulators on letter was issued to clarify the use of 10 CFR 20.2002 and similar Agreement State processes 1

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

ML16007A488 JA16

USCA Case #19-1240 Document #1886227 Filed: 02/19/2021 Page 21 of 61 RIS 2016-11 Page 2 of 4 for the disposal of radioactive materials in Resource Conservation Recovery Act disposal facilities or other unlicensed facilities when the unlicensed facility is located in another State.

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

SUMMARY

OF ISSUE NRC regulations in 10 CFR 20.2002 provide that a licensee or applicant for a license may apply to the Commission for approval of procedures to dispose of licensed material not otherwise authorized in 10 CFR Part 20 for disposal. Licensees have used 10 CFR 20.2002 to dispose of 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 licensees, this request should be made directly to the Agreement State regulatory authority. If the Agreement State has not adopted regulations equivalent to 10 CFR 20.2002, then the State may accomplish the same regulatory authorization through application of its specific exemption authority, which could approve the request to dispose of licensed material using procedures not otherwise authorized. Also, radioactive material licensees receiving a 10 CFR 20.2002 approval must follow other permitting requirements.

Details related to exemption request requirements and the involvement of the NRC and Alternate Disposal of Material Issued under 10 CFR 20.2002 and Exemption Provisions in Agreement State or multiple Agreement States would be involved in reviewing requests for and authorizing alternate procedures to dispose of licensed material under 10 CFR 20.2002 (or the equivalent Agreement States regulations).

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

JA17

USCA Case #19-1240 Document #1886227 Filed: 02/19/2021 Page 22 of 61 RIS 2016-11 Page 3 of 4 In some cases, the involvement of the NRC or Agreement State may not be required because the licensed materials may be exempt from NRC or Agreement State licensing requirements. In this case, the unlicensed facility does not need a specific exemption or license to dispose of the material. For example, items meeting the crit or an exemption from either the NRC or the Agreement State.

Also, a source material licensee may transfer or dispose of unimportant quantities 2 of source material under the regulations of 10 CFR 40.51(b)(3) and (4) to persons exempt under 10 CFR 40.13(a). Licensees are not required to request and receive NRC approval for these transfers. However, if requested, NRC staff will, on a case-by-case basis, review and approve such transfers. Additional information on NRC staff reviews of requests to transfer material under 10 CFR 40.51(b)(3) and (4) to persons exempt under 10 CFR 40.13(a) can be found in an Documentation of Low-Activity Waste Disposals in Accordance with 10 CFR 20.2002 and to the necessity of a 10 CFR 20.2002 exemption with regard to disposing exempt materials, they can contact the NRC or Agreement State for clarification.

BACKFITTING THE ISSUE AND FINALITY DISCUSSION This RIS requires no action or written response. Any action that licensees take to implement changes or procedures in accordance with the information contained in this RIS ensures compliance with current regulations, is strictly voluntary, and, therefore, is not a backfit under any of the backfitting provisions contained in 10 CFR 50.109, 70.76, 72.62, 76.76, or the issue FEDERAL REGISTER NOTIFICATION A notice of opportunity for public comment on this RIS was not published in the Federal Register because it is informational and pertains to a staff position that does not represent a departure from current regulatory requirements and practice.

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

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

2 There have been cases where licensees decontaminate material to exempt concentration levels as JA18

USCA Case #19-1240 Document #1886227 Filed: 02/19/2021 Page 23 of 61 RIS 2016-11 Page 4 of 4 PUBLIC PROTECTION NOTIFICATION The NRC may not conduct or sponsor, and a person is not required to respond to, an information collection unless the requesting document displays a currently valid OMB control number.

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

/RA Pamela Henderson for / /RA/

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

/RA/

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

Donald Lowman, NMSS Stephen Poy, NMSS (301) 415-5452 (301) 415-7135 Donald.Lowman@nrc.gov Stephen.Poy@nrc.gov Micheal Smith, NRR (301) 415-3763 Micheal.Smith@nrc.gov Note: NRC generic communications may be found on the NRC public Web site, http://www.nrc.gov, under NRC Library/Document Collections JA19

ML16007A488 *via email OFC NMSS/MSTR/ASPB NMSS/MSTR/ASPB *NMSS/MSTR/MSEB *NMSS/FCSE *NRR/DRA/ARCB/BC NAME SPoy PMichalak AMcIntosh KRamsey UShoop DATE 1/20/16 1/27/16 9/11/15 1/05/16 3/14/16 OFC *QTE *OCIO *OGC (NLO) NMSS/DUWP/D *NMSS/DSFM/D NAME CHsu DCullison OMikula JTappert MLombard DATE 1/08/16 4/04/16 10/20/16 5/5/16 9/19/16 OFC *NRO/DSEA/RPAC/BC *NRO/DCIP/D *NRR/DPR/PGCB/LA *NRR/DPR/PGCB/BC NRR/DPR/D NAME LBurkhart MCheok ELee (ABaxter for) SStuchell LLund DATE 08/02/16 10/06/16 09/27/16 10/06/16 10/21/16 OFC NMSS/MSTR/D NAME PHenderson for DCollins DATE 11/13/16 USCA Case #19-1240 Document #1886227 Filed: 02/19/2021 Page 25 of 61 JA21

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USCA Case #19-1240 Document #1886227 Filed: 02/19/2021 Page 38 of 61 ELLEN C. GINSBERG 1201 F Street, NW, Suite 1100 Washington, DC 20004 P: 202.739.8140 ecg@nei.org nei.org JA34

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USCA Case #19-1240 Document #1886227 Filed: 02/19/2021 Page 49 of 61 July 17, 2019 Mr. John Lubinski, Director Office of Nuclear Materials and Safeguards U.S. Nuclear Regulatory Commission Washington, D.C., 20555-0001 Also sent via e-mail: John.Lubinski@nrc.gov (RIS) 2016- -Level Radioactive Waste

Dear Mr. Lubinski,

-11 and resulting impacts on regulatory stability and efficiency in the area of disposal of very low-level radioactive waste (VLLW).

Please be aware that RIS 2016-11 and a subsequent 2018 NRC inspection of South Texas Project enforcement action (EA-18-137) have generated confusion among WCS utility customers. The 20.2002, or the equivalent Agreement State regulations, must be submitted to the regulatory must receive approval of proposed procedures not otherwise authorized in the regulations to the regulatory authority that issued the license for use of the radioactive material; in this case, The foregoing NRC statements are making some utility licensees reluctant to use WCS for VLLW disposal due to a misconception that those statements in RIS 2016-11 are applicable to the Texas Commission on Environmental Quality (TCEQ) regulatory process that governs the WCS VLLW disposal process. We remain confident that utility customers may continue to send Low-JA45

USCA Case #19-1240 Document #1886227 Filed: 02/19/2021 Page 50 of 61 Level Radioactive Waste (LLRW) to WCS that, after being evaluated by WCS and ultimately determined to be exempt VLLW pursuant to TCEQ-approved criteria and procedures, can be Specifically,

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

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

- The TCEQ has the legal authority to allow the disposal of exempt low activity radioactive

- The TCEQ has authorized WCS to dispose of exempted radioactive waste in its RCRA ondition 192) and Hazardous Waste Permit HW-50358.

determined that the Texas program is satisfactory.

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

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

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

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

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

JA46

USCA Case #19-1240 Document #1886227 Filed: 02/19/2021 Page 51 of 61 We are always pleased to work with the NRC to enhance regulatory stability; promote efficiency for the licensees, Agreement States, and the NRC; and most importantly to ensure continued efficient disposal activities with a high degree of safety.

Sincerely, David Carlson President & COO Waste Control Specialists Cc: Electronic Copy Only Steven West, Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs Catherine Haney, Assistant for Operations, Office of the Executive Director for Operations JA47

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Solutions Solutions Code of Federal Regulations JA54

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