DOE issued an interpretive rule asserting the power to unilaterally reclassify high-level radioactive waste from Cold War-era reprocessing of spent nuclear fuel for nuclear weapons.
The U.S. Department of Energy (DOE) on June 5 issued a Supplemental Federal Register Notice announcing a final interpretive rule (the “Rule”) asserting its authority to reclassify certain radioactive waste from reprocessing associated with Cold War-era nuclear weapons production activity. The Rule is nearly identical to a draft version published for comment in October 2018 (the “Draft Rule”).
To date, radioactive waste from Cold War-era reprocessing of spent nuclear fuel for the nuclear weapons programs has been classified as high-level radioactive waste (HLW). DOE currently holds approximately 90 million gallons of such radioactive waste in underground storage tanks at three facilities (Hanford Site in Washington State; Savannah River Site in South Carolina; and the Idaho National Laboratory) and is in the process of remediating those sites. Those efforts have been plagued by ballooning costs and significant delays driven in large part by the stringent controls for HLW.
An Attempt to Kick-Start Cleanup Efforts
DOE’s new Rule was developed to accelerate those cleanup efforts by reducing the amount of waste considered HLW. The Rule will allow DOE to make case-by-case determinations whether particular waste streams at DOE facilities should be reclassified from HLW to a lower (and less burdensome) classification. Specifically, DOE will be able to determine that a waste stream is not HLW if either:
DOE explained in responses to public comments submitted on the Draft Rule that it need not submit its re-classification determinations to the U.S. Nuclear Regulatory Commission for review. DOE asserted that the statutory definition of “high-level radioactive waste” (see 42 U.S.C. § 10101(12)) assigned DOE exclusive authority over radioactive waste from defense reprocessing activities—including the right to make its own classification decisions. DOE further stated that it could make those determinations without having first removed key radionuclides from each waste stream to the “maximum extent practicable.” Lastly, DOE declined to commit to continuing its current practice of not disposing of Greater-Than-Class-C radioactive waste in shallow landfills employed at commercial disposal facilities.
A Mixed Greeting from Key Stakeholders
DOE praised the Rule as promising to accelerate cleanup efforts at Cold War waste sites that have been plagued by decades of delay and have cost taxpayers billions of dollars. While the full impact of these cost savings remains to be seen, potential savings could be in the tens of billions of dollars or more.
Yet, a number of key stakeholders are unenthusiastic. When DOE released its initial (and largely identical) Draft Rule, it received more than 5,500 comments from members of the public, industry, tribes, and state/federal agencies. A significant number of the comments on the Draft Rule were critical, as a variety of stakeholders expressed concern that the elements adopted in DOE’s final Rule make it easier for DOE to cut corners in its cleanup activities. The Staff of the Nuclear Regulatory Commission in particular cautioned that DOE’s newly asserted reclassification authority could cause safety concerns at both the source and the destination: leaky underground tanks at DOE facilities were never intended for in situ disposal, and commercial disposal sites were not designed and licensed for large amounts of reclassified HLW.
Multiple environmental groups have publicly criticized DOE’s decision to proceed with the Rule notwithstanding the protests on the Draft Rule. And Washington’s governor and attorney general issued a joint press release criticizing DOE’s approach as “effectively terminat[ing]” ongoing negotiations between DOE and the state on cleanup efforts at the Hanford site. Governor Inslee further warned that his state would “consider all options to stop this reckless and dangerous action.”
Legal Challenges Loom on the Horizon
Close on the heels of issuing the Rule, the DOE announced its first application of the Rule: a plan to transfer some 10,000 gallons of HLW from the Savannah River Site to commercial disposal sites operated by Waste Control Specialists LLC (Texas), or EnergySolutions Inc. (Utah). DOE stated that it plans to issue an Environmental Assessment for comment in connection with that transfer sometime “later this year.” DOE has stated that it has no concrete plans to employ the new Rule in connection with other waste streams from its Cold War-era sites. (See 84 Fed. Reg. at 26836.)
DOE’s planned transfer from the Savannah River Site will almost certainly prompt legal challenges to elements of the Rule. Environmental groups and many stakeholders along the transportation routes are likely to challenge the Rule in the courts. Further, even the Republican administrations of likely destination States have signaled unwillingness to accept reclassified radioactive wastes at commercial facilities within their borders:
But perhaps the biggest question mark is whether, when and how Washington will follow through with its threat to prevent the DOE from implementing the new Rule. Hanford Site was arguably the principal motivation for the Rule: the lion’s share of DOE HLW that could be reclassified (about 54 million gallons) is there, and DOE’s cleanup efforts have been notoriously slow, expensive and controversial. The state of Washington could conceivably press its interest in scrapping the Rule by initiating or intervening in litigation on a transfer from the Savannah River Site. It could also challenge any subsequent attempt by DOE to invoke the Rule to dispose of reclassified radioactive waste in situ within underground tanks at Hanford Site.
Nuclear Utilities Could See Their Own Waste Disposal Costs Increase
DOE’s new Rule could also affect utilities’ financial obligations with respect to the permanent disposal of their spent nuclear fuel. To the extent that DOE can successfully implement the new rule, there will undoubtedly be a reduction in the volume of material that will need to be placed in a permanent repository. If the current concept for a single repository for both civilian and defense waste remains unchanged, this will have an impact on both the total volume of waste that will need to be disposed of in that facility as well as DOE’s cost share for its operations. The current framework for allocating the costs of the permanent repository envisions proportional assignment based on the volume of waste each of the DOE and commercial utilities store there. Thus, a reduction in the volume of DOE waste will result in a commensurate increase in the civilian cost share of that repository. (See 52 Fed. Reg. 31508 (Aug. 20, 1987)). Since the Nuclear Waste Policy Act requires that the owners of civilian spent nuclear fuel pay the full costs for its permanent disposal, the reduced volume of defense wastes resulting from rule change should reduce DOE’s share of the cost of the facility and would likely obligate commercial utilities to increase their contributions in response.
Interested clients should monitor DOE issuances and the Federal Register for more information regarding DOE’s invocation of the Rule in connection with the transfers of radioactive waste from Savannah River and other sites.
 NRC Staff Comments at 2-3 (Jan. 9, 2019) (ADAMS Accession No. ML19010A136).
 Letter from Gov. Abbot to Sec. Perry and Comm. Svinicki (Apr. 26, 2019) (ADAMS Access. No. ML19121A544).
 That concept dates from a 1985 presidential determination pursuant to section 8(b) of the Nuclear Waste Policy Act that civilian and defense nuclear wastes should share permanent repositories. In 2015, however, President Obama wrote a Memorandum to the Secretary of Energy directing that a separate repository for HLW from defense activities “is required.” DOE issued a “Draft Plan for a Defense Waste Repository” just before the end of the Obama Administration, but the Trump Administration has not finalized that plan.