D.C. court dismisses challenge to NRC’s low-level waste policy

May 7, 2021, 12:06PMRadwaste Solutions

A federal court has dismissed a claim by the Nuclear Energy Institute that the Nuclear Regulatory Commission had reversed decades of established policy by requiring owners and operators of nuclear power plants to obtain the agency’s approval to dispose of low-level radioactive waste, even in NRC Agreement States.

At issue was a letter the NRC sent to NEI in 2019, stating that licensees must receive agency approval before disposing of LLW. In response, NEI filed a lawsuit against the NRC, claiming that the letter imposes new obligations on licensees without the NRC’s having followed rulemaking procedures required by the Administrative Procedure Act, including publishing notice of the new policy and receiving input from stakeholders prior to implementation.

The decision: The U.S. Court of Appeals for the District of Columbia Circuit, in its May 4 per curiam decision, dismissed the NEI’s petition, saying that the court does not have jurisdiction to review the case because the letter does not constitute a “final order” under the Hobbs Administrative Orders Review Act.

While the court agreed that the NRC did alter its position, which had been in effect since 1986, that NRC Agreement States have authority over the disposal of LLW, the court said that the agency had made its change of position publicly known prior to the 2019 letter. The court said that because the letter “merely restated” the NRC’s position, it does not fit the legal definition of a final order.

NRC’s position: The NRC said it first changed position in 2012, when it sent a letter to Agreement States clarifying which approvals are necessary when disposing of LLW. Alternatively, the NRC argued that the change came in 2016 with the publication of Regulatory Issue Summary 16-11, in which the agency said that its 1986 regulatory interpretation was superseded by the new requirements.

Finally, the court noted that the NRC made its new position clear in 2018 when it reproved STP Nuclear Operating Company for disposing of LLW without federal approval in violation of Regulatory Issue Summary 16-11. STPNOC had received prior approval from Texas, an NRC Agreement State, to dispose of its LLW.

“In sum, all the 2019 letter did was confirm the commission’s adherence to the position it had previously taken,” the court decision states. “As a result, it was not a final order, and we lack jurisdiction to review it.”

NEI’s response: “We understood it would be difficult to challenge informal agency actions, especially when those actions impose new legal requirements in a nontransparent manner over several years,” Ellen Ginsberg, NEI’s senior vice president, general counsel, and secretary told Nuclear Newswire. “Unfortunately, the court disagreed with us about when exactly the NRC’s about-face occurred. As a result, the court concluded that it did not have jurisdiction to reach the merits of the case.”

Ginsberg added, “Because the court did not reach the merits, it did not opine on NEI’s substantive arguments, including that the NRC failed to engage stakeholders through a notice-and-comment process and failed to consider the costs and benefits of its new position as required by its backfit rule. While the court’s decision is disappointing, by bringing the lawsuit, we reinforced the need for the NRC to operate as a transparent and predictable regulator.”

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