NRC Withdraws Unpopular Proposed VLLW Interpretive Rule

Morgan Lewis - Up & Atom

Morgan Lewis - Up & Atom

Under the substantial weight of industry, state, and public pressure, the NRC yesterday published a notice in the Federal Register (85 FR 81960) announcing its withdrawal of its proposed highly controversial reinterpretation of its low-level radioactive waste disposal regulations. The NRC concluded, after consideration of comments, that the proposed changes would not benefit the overall LLW regulatory framework.

By way of background, NRC regulations at 10 CFR § 20.2001(a) permit licensees to dispose of low-level radioactive waste by transferring it to an “authorized recipient.” While that term is not defined in the regulations, the sequential subsection 20.2001(b) requires that the recipient be specifically licensed. The regulations also provide an alternative for a specific exemption from the licensing requirement on a case-by-case basis. Agency guidance in NUREG-1736 provides further clarification on the parties that qualify as “authorized recipients,” such as land disposal facilities specifically licensed under 10 CFR Part 61. On March 6, 2020, the NRC published a notice in the Federal Register (85 FR 13076) proposing to revise that guidance—i.e., an interpretive rule—to expand the definition of “authorized recipient” by creating a broad new exemption process as an alternative to the site-specific licensing prescribed in the rule. The NRC also proposed a generic criterion for granting such exemptions.

The NRC sought comments on the proposed interpretive rule, and that comment period closed on October 21, 2020 (85 FR 45809). The industry and public response was substantial. The agency received approximately 200 individual comments and approximately 15,000 form letter submissions from the nuclear industry, agreement state regulatory agencies, and the general public. The vast majority of these comments strongly opposed the agency’s proposed interpretation for multiple and various safety and procedural shortcomings. Today’s withdrawal notice indicates that the NRC received that message. The agency indicated that it will continue to monitor this issue and consider related regulatory innovations through other ongoing low-level waste program initiatives.

Notably, this withdrawal does not affect the separate proceedings pending before the US Court of Appeals for the DC Circuit, in which the industry is challenging the NRC’s recent reversal of its longstanding interpretation that agreement state regulators have authority to approve other “alternative methods” of VLLW disposal. Final briefs in that proceeding are expected in March 2021. We will continue to monitor this matter and report on any further developments.

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