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The NRC Staff recently issued SECY-20-0098, which provides the Staff’s recommendation to consolidate two low-level radioactive waste (LLRW) disposal rulemakings. Specifically, the Staff supports combining the draft final rule revising 10 CFR Part 61, “Low-Level Radioactive Waste Disposal” (Part 61 Rule), with a proposed rulemaking to promulgate requirements for near-surface disposal of greater-than-Class C waste (GTCC Rule). The combined rule would be “based on expected cost savings, consideration of stakeholder input, and efficiencies.”

Background

10 CFR Part 61 governs the land disposal of LLRW. Section 61.55 characterizes LLRW on a scale, ranging from “Class A” waste, which is the least hazardous waste that can be disposed of in a near-surface disposal facility, to “Class C” waste, which is the most hazardous. Waste that exceeds the Class C limits is characterized as “greater than Class C” (GTCC) waste, and must be disposed of in a geologic repository unless the NRC approves other methods of disposal. If finalized, the following two rulemakings (or proposed consolidated rulemaking) could amend requirements for near-surface disposal of LLRW and GTCC waste in Part 61.

Part 61 Rule

The Part 61 Rule would “address the disposal of waste streams (e.g., depleted uranium) that were not envisioned to be disposed of in significant quantities when 10 CFR Part 61 was originally promulgated in 1982.” These streams likely would come from commercial uranium enrichment facilities and blended LLRW, and could come close to exceeding the limits of Class C waste. To ensure public health and safety, the Part 61 Rule would revise regulatory requirements for land disposal of LLRW to account for differences in quantity and concentration of waste streams not originally considered in the development of Part 61.

After publication in the Federal Register, the Staff submitted a draft final rule to the Commission for approval in September 2016. One year later, the Commission directed the Staff to revise the draft final rule and publish it as a supplemental proposed rule for a 90-day public comment period. The Staff outlined a number of changes it would make to implement the Commission’s revisions, including a proposed change to the definition of “waste” in 10 CFR § 61.2 to include LLRW streams containing transuranic waste within the scope of Part 61.

GTCC Rule

The current regulations provide that the default path for disposal of GTCC waste is in a geologic repository, unless the Commission decides otherwise on a case-by-case basis. The GTCC Rule would “promulgate near-surface disposal requirements [for GTCC waste] beyond the case-by-case approval currently authorized in 10 CFR Part 61.” Under the GTCC Rule, licensees would be subject to the physical protection requirements of 10 CFR Part 37 (or Agreement State equivalent) and could also be subject to 10 CFR Part 73 if they possess a Category III quantity of strategic special nuclear material (SSNM).

The Staff issued a draft regulatory basis for the GTCC Rule for public comment in 2019, and, after evaluating the comments it received, concluded that (1) most of the GTCC waste streams analyzed would be potentially suitable for near-surface disposal with appropriate controls and completion of site-specific analyses, and (2) Agreement States could safely regulate most GTCC waste (except for waste from a future molybdenum-99 production facility because of the “likelihood the presence of this waste at a facility would exceed the critical mass threshold of 10 CFR 150.11”). Additionally, the Staff found that approximately 20% of the waste suitable for near-surface disposal, if accepted by an Agreement State, could bring the licensee within the scope of 10 CFR §§ 73.67 and 150.14, based on the quantity of SSNM in the waste stream.

In developing the GTCC Rule, the Staff would consider the following:

  • Requiring applicants to submit a site-specific analysis showing that the performance criteria in Subpart C, “Performance Objectives,” of 10 CFR Part 61 would be met for any GTCC waste being considered for near-surface disposal (the Staff would expect to impose requirements essentially identical to those currently proposed in the 10 CFR Part 61 rulemaking).
  • Requiring GTCC waste to be disposed of at a minimum depth of 5 meters below the surface of the earth and with a 500-year intruder barrier in place.
  • Amending 10 CFR § 61.55(a)(2)(iv) to delete the requirement that GTCC waste must be disposed of in a geologic repository as defined in 10 CFR Part 60 or 63.
  • Exploring regulatory approaches, such as amendments to 10 CFR §§ 150.14 and 150.15, to permit extension of Agreement State authority to GTCC waste.

Of note, some of the Staff who drafted Enclosure 1 to SECY-20-0098 expressed their view that only the NRC—not Agreement States—has the authority to regulate GTCC waste.

Path Forward

Consolidating and re-proposing the rule would permit the public to comment on the changes and revisions to the Part 61 Rule and the GTCC Rule without having to reference myriad other documents published throughout the course of both rulemakings. Although the timeframe to finalize a consolidated rule might take longer than finalizing the two individual rules, the Staff did not identify any disadvantages to extending the schedule “because operating sites are already effectively meeting what would be the safety requirements proposed in the 10 CFR Part 61 rule.”

If the Commission agrees to consolidate the rulemakings, the Staff will do the following:

  • Submit the re-proposed rule that consolidates and integrates GTCC waste and 10 CFR Part 61 LLRW rulemaking activities, and associated guidance documents, to the Commission within 14 months from the receipt of a Staff Requirements Memorandum.
  • Submit the final rule to the Commission for approval within 12 months of the close of the comment period for the re-proposed rule.
  • Seek opportunities to communicate to external stakeholders the planned path forward.
  • Engage the active participation of Agreement State representatives during the development process, which is reflected in the time estimates.

While it remains to be seen whether and how the final rule will develop, having a safe alternate disposal option for GTCC waste is important for the safe and timely decommissioning of nuclear facilities. However, industry should expect challenges regarding which entity—the NRC or Agreement States—has the authority to regulate GTCC waste. Morgan Lewis will continue to monitor these rulemakings and report on any updates.