DRC-2018-003650 - 0901a068807f3849

ENERGYSOLUTIONS
April 17, 2018 CD18-0067
DR/ of Waste Management
and Rad:anon Control
APR 1 7 2018 Pg-e-20/8-01036W
Subject: Radioactive Material License UT 2300249; Request for Written
Concurrence and Responses to the Request for Information
Precursory to Concurrence with Characterization of the San Onofre
Nuclear Generating Station's Unit 1 Reactor Pressure Vessel
Dear Mr. Anderson:
EnergySolutions herein requests written concurrence and responds to the Division of
Waste Management and Radiation Control's March 16, 2018 request for information
precursory to their concurrence with characterization and classification of the San Onofre
Nuclear Generating Station's Unit 1 Reactor Pressure Vessel (SONGS RPV).1
Responses to the Division's requests for further clarification with analysis in the January
8, 2018 Package Characterization2 have been supplemented by WMG.3
1) The text states (p.3) that the Ni-63 in the activated metal is the classification
controlling nuclide at 88% of the class a limit, which appears correct.
However, accounting for the uncertainty associated with the normalization
factor, if calculated as the square root of the sum of squares of measured and
calculated dose, respectively, would suggest a 63Ni specific activity
concentration of —30 uCi/cc, and therefore in excess of the Class A limit (Part
61, Table 2). Please explain.
In response to a licensee violation cited by an agreement state associated with
measurement uncertainty, the U.S. Nuclear Regulatory Commission (NRC)
1 Anderson, Scott T. "Request for information regarding characterization of the San Onofre Nuclear
Generating Station's (SONGS) Unit 1 Reactor Pressure Vessel." Letter to Vern Rogers of
EnergySolutions from the Utah Division of Waste Management and Radiation Control, March 16, 2018.
2 WMG "San Onofre Unit 1 Reactor Pressure Vessel Package Characterization." Memorandum to Scott
Anderson of the Utah Division of Waste Management and Radiation Control from WMG, January 8,
2018.
3 Tuite, Kevin of WMG. Personal communication with Bret Rogers of EnergySolutions, April 9, 2018.
299 South Main Street, Suite 1700 • Salt Lake City, Utah 84111
[phone] • Fax: [phone] • www.energysolutions.com
Mr. Scott T. Anderson
Director
Utah Division of Waste Management and Radiation Control
195 North 1950 West
Salt Lake City, Utah 84114-4880
ENERGYSOLUTIONS
Mr. Scott T. Anderson
CD18-0067
April 17, 2018
Page 2 of 15
clearly stated it inappropriate to require measurement uncertainty be included in
demonstration of compliance with regulatory limits. 4
"The [NRC] Offices became aware of a letter transmitting a notice of
violation that appeared to send an incorrect message to licensees. The
incorrect message was that licensees must consider inherent uncertainties
when measuring radiation levels approaching regulatory limits and must
establish procedural limits that are less than the regulatory limits by an
amount that equals (or exceeds) the 'instrument error.' That message is
incorrect."
"The NRC position is that the result of a valid measurement obtained by a
method that provides a reasonable demonstration of compliance or of
noncompliance should be accepted and that the uncertainty inherent in
that measured value need not be considered in determining compliance or
non-compliance with a regulatory limit. Thus, only the measured value
(and not the sum of the measured value and its uncertainty) need be less
than the value of the limit to demonstrate compliance with the limit.
Conversely, only the measured value (and not the measured value less its
uncertainty) need be greater than the value of the limit to demonstrate
non-compliance with the limit."5 [emphasis added]
In support of this directive, NRC further notes,
"The methods of demonstrating compliance with [regulatory] limits are
usually left to the regulated person. Any method which provides a
reasonable demonstration of compliance will be accepted. In most cases,
exact measured values are not required. "6 [emphasis added]
In offering a 2006 concurrence regarding EnergySolutions' prior application of
the Branch Technical Position on Concentration Averaging and Encapsulation
(BTP) to classification of a similar reactor vessel destined for Clive Facility
disposal, the Division acknowledged,
4 Hickley, J. W. N., et al. "Consideration of Measurement Uncertainty When Measuring Radiation Levels
Approaching Regulatory Limits." (HPPOS-223 PDF-9111220129) U.S. Nuclear Regulatory
Commission, (accessed April 3, 2018 from https://www.nrc.gov/about-nrc/radiation/protects-
you/hppos/hppos223.html). August 3, 1990.
5 Ibid.
6 Ibid.
299 South Main Street, Suite 1700 • Salt Lake City, Utah 84111 [phone] • Fax: [phone] • www.energysolutions.com
ENERGYSOLUTIONS
Mr. Scott T. Anderson
CD18-0067
April 17, 2018
Page 3 of 15
"The generator has the responsibility for determining the component is
adequately characterized to support classification determination. "7
The Division's request acknowledges as correct the referenced text report of the
Ni-63 activity in the activated metal (projected at 88% of the Class A limit).
However, the Division's direction to further account for uncertainty in
demonstrating compliance with regulatory limits is contrary to its own practice,
and inappropriate and divergent from NRC policy and guidance.8
2) The text further states (p.5), that the reactor vessel was characterized using
several radiation surveys at multiple locations and that it is accepted practice
by the NRC to apparently disregard upper tail uncertainties. It appears that
if the upper tail uncertainty is used, 63Ni would be in excess of the Class A
limit. Please explain and provide a reference.
Please see the response provided to the Division's first request. The Division's
suggestion that "if the upper tail uncertainty is used 63Ni would be in excess of
the Class A limit" is contrary to its own practice and inappropriate and contrary to
NRC policy.9
3) The text presents (p.7) a flow chart, depicting the NRC Branch Technical
Position guidance overview as how to average single, discrete items. While
the Division agrees that Section 3.3.1 of the NRC BTP is relevant for the
concentration averaging characterization of the reactor, no mention is made,
apart from three statements, of potential constraints as outlined in Section
3.3.4 of the BTP (see Figure 5 of the BTP, classification of encapsulated
items, which should be followed.) If the intent is, however, to follow Section
3.8.4 of the BTP, the relevant information should be duplicated for the San
Onofre reactor in an analog fashion.
Section 3.3.4 of the BTP suggests application of volumetric and radiological
constraints when utilizing BTP Section 3.3.1 concentration characterization for
the SONGS RPV. However, since the SONGS RPV volume is greater than the
container volume limit of 331 ft3 specified in Section 3.3.4 of the BTP for
7 Finerfrock, Dane L. "EnergySolutions letter dated Octover 12, 2006, (CD06-0397) concurrence regarding
the U.S. Nuclear Regulatory Commission 'Branch Technical Position on Concentration Averaging and
Encapsulation' RML UT23900249." Letter to Tye Rogers of EnergySolutions from the Utah Division of
Radiation Control. November 6, 2006.
8 Ibid.
9 Ibid.
299 South Main Street, Suite 1700 • Salt Lake City, Utah 84111
[phone] • Fax: [phone] • www.energysolutions.com
_____„.............
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Mr. Scott T. Anderson
CD18-0067
April 17, 2018
Page 4 of 15
encapsulating waste, an alternative approach for satisfaction of the volumetric
constraint is considered (in accordance with the alternative approaches for
averaging guidance allowed in BTP Section 3.8).
A) Site-Specific Intruder Assessments (BTP Section 3.8.1):10
Section 3.8.1 of the BTP suggests that regulatory information supporting a
site-specific intruder assessment should include:
• An overview of the proposed alternative approach (e.g., depth of burial or
other factors) and how it will protect an inadvertent intruder.
The SONGS RPV will be disposed in the Class A West embankment at an
approximate depth of 40 feet below the top of the disposal embankment.
Even though Class A LLRW is not required to be buried at this depth, it is
well below the prescribed depth the NRC requires for other waste that is
considered higher in radioactive concentration as Class C LLRW.
Additionally, the SONGS RPV will be encased in controlled low-strength
material (CLSM) which provides another barrier for intrusion. Protections
provided with the Class A West embankment design (including depth of
burial to large components and benefit of encasing the components in
CLSM) from inadvertent intrusion into large components (including
reactor pressure vessels) were approved by the Division with amendment
12 of Radioactive Material License UT2300249."
"The disposal of debris and containerized waste in the large
component area would continue unchanged with approval of the
CAW Embankment LAR. Disposal of such waste involves
construction of debris and containerized waste/Controlled Low
Strength Material (CLSM) pyramids to minimize differential
settlement within the embankment. Following acceptance and
unloading, debris and/or large components are placed so as to
minimize the volume of void spaces between containers/
components. Debris and large components are placed to minimize
10 U.S. Nuclear Regulatory Commission. "Concentration Averaging and Encapsulation Branch Technical
Position, Revision 1 — Volume 2" Office of Nuclear Material Safety and Safeguards, U.S. Nuclear
Regulatory Commission, February 2015. (p. 36)
11 URS Corporation. "Utah Division of Radiation Control — Energysolutions LLRW Disposal Facility —
Class A West Amendment Request — Safety Evaluation Report." Utah Division of Radiation Control,
June 2012. p 29.
299 South Main Street, Suite 1700 • Salt Lake City, Utah 84111
[phone] • Fax: [phone] • www.energysolutions.com
ENERGYSOLUTIONS
Mr. Scott T. Anderson
CD18-0067
April 17, 2018
Page 5 of 15
entrapped air in each debris lift Associated incidental debris is
placed in such a manner to minimize entrapped air pockets that
cannot be displaced by CLSM Once debris or large components
are placed in the debris lift, the lift is backfilled by pouring CLSM
over the waste so that it flows to fill void spaces within the
emplacement. CLSM is a low-strength, flowable concrete.
Standard concrete mixing and delivery equipment is used to pour
CLSM in each debris pour. The flowability of the CLSM is
controlled to ensure adequate filling of the voids within the
oversized debris pour."
"The disposal of debris and containerized waste for the proposed
CAW Embankment is identical to that approved for the CAN
embankment and the 2005 LRA (URS Corporation 2005a; 2005b).
The conditions upon which the disposal is based are similar,
except the overall height and surface area of the CAW
Embankment are increased, thus increasing the volume of material
potentially disposed of in the embankment. Analyses (Attachment 5
of Energysolutions 2011a; 2011b) demonstrate that the disposal of
debris and containerized waste in the CAW embankment will
perform at least as well as corresponding items approved for the
Class A and CAN embankments (URS Corporation 2005a; 2005b)
and reviewed for thepreviously proposed CAC embankment
(AMEC 2005a; 2005b)."
"Based on the information summarized above, the Division
concludes that the Licensee's descriptions of the manner of placing
debris and large components into the proposed CAW Embankment
and CLSM use for backfill are acceptable."12[emphasis added]
The Division further notes,
"Utah and NRC regulations require an intruder barrier for the
disposal of only Class C LLRW. Since only Class A waste will be
disposed of in the proposed Disposal Embankment, no intruder
barrier, as specifically defined by Utah regulations, is required. In
a more general sense, however, intruder protection is required by
the performance objective stated in URCR R313-25-20. These
12 ibid. p 29.
299 South Main Street, Suite 1700 • Salt Lake City, Utah 84111
[phone] • Fax: [phone] • www.energysolutions.com
ENERGYSOLUTIONS
Mr. Scott T. Anderson
CD18-0067
April 17, 2018
Page 6 of 15
more general requirements are satisfied by the remoteness of the
facility from large population centers, the cover system provided to
separate the wastefrom the atmosphere, the presence of an
uppermost rock riprap layer on the top slope and side slopes of the
CAW Embankment cover,phvsical access barriers erected and
maintained at the closed facility, access controls maintained at the
closed faciliol, the naturally-poor quality of the area's
groundwater, and monuments placed denoting the locations of
embankment boundaries."13 [emphasis added]
In 2006, EnergySolutions made a request for,14 and the Division concurred
with,15 BTP concentration averaging characterization of a reactor pressure
vessel from a different generator. EnergySolutions' request included a
projected Sum-Of-Fractions calculation demonstrating the vessel's current
residual activity as being below the Class A limits promulgated in Utah
Administrative Code (UAC) R313-15-1009 (which would decay to levels
even lower at the regulatory-required 100-year time frame after which a
member of the public may inadvertently intrude into the waste). Since the
activity present in the 2006 grouted reactor pressure vessel was below the
Class A limit and would be placed according to approved method, the
Division deemed adequate the intruder protections.
As the Division correctly notes in Request Ni-63 in the activated metal is
the principle classification controlling nuclide at 88% of the class A limit.
With a half-life of 100 years, its concentration at the earliest time an
inadvertent intruder could gain access to the closed Class A West
embankment (following a 100-year institutional control period) would be
lower than 45% of the Class A limit. Therefore, the inadvertent intruder
scenarios contemplated with the Class A West license amendment remain
conservative and appropriate.
13 Ibid. p 36.
14 Rogers, Tye. "Request for Concurrence Regarding the Application of the NRC Branch Technical
Position on Concentration Averaging and Encapsulation." (CD06-0397) Letter to Dane Finerfrock, Utah
Division of Radiation Control from EnergySolutions, October 12, 2006. 15 Finerfrock, 2006.
299 South Main Street, Suite 1700 • Salt Lake City, Utah 84111 [phone] • Fax: [phone] • www.energysolutions.com
ENERGYSOLUTIONS
Mr. Scott T. Anderson
CD18-0067
April 17, 2018
Page 7 of 15
• A detailed description of the waste form(s) covered by the alternative
averaging approach.
The outer package wall of the SONGS RPV consists of three inches of
steel. The actual SONGS RPV is embedded in concrete and the steel wall
of the RPV is eight inches thick. Concrete was used to secure the internal
components in place to prevent shifting during transit. A detailed
description of the SONGS RPV waste form has previously been provided
to the Division,16,17,18,19 is consistent with the large components approved
for placement in the Division's Class A West amendment to Radioactive
Material License UT2300249,2° and is sufficiently similar to other historic
large components with which the Division has previously provided
classification and disposal concurrence.21'22
• An identification of the CA BTP's existing position for which an
alternative is requested.
This identification is herein made as the response to Request #3.
The design of the package including multiple barriers to prevent intrusion
(i.e., depth of burial, encased in CLSM, etc.) provide adequate assurance that
any potential intrusion into the actual waste is extremely unlikely. Even in the
event of intrusion, the retrieved material would be recognizable prior to the
intruder drilling into the internals of the SONGS RPV. Therefore, the
16 WMG, 2018.
17 WMG. "San Onofre Nuclear Generator Station Unit 1 — Reactor Vessel and Internals Characterization
(Report WMG-20004-9088, Rev. 6)." WMG Project 9088D Report to Southern California Edison.
October 2002. 18 WMG. "SONGS 1 Reactor Vessel Package Re-Characterization (Report 07-064-RE-090)." WMG
Project 07-046D Report to EnergySolutions. February 2008. 19 WMG. "San Onofre Unit 1 Reactor Vessel Package Part 61 Classification (Report 07-064-RE-091)."
WMG Project 07-046D Report to EnergySolutions. February 2008. 20 URS Corporation. "Utah Division of Radiation Control — EnergySolutions LLRW Disposal Facility —
Class A West Amendment Request — Safety Evaluation Report." Utah Division of Radiation Control,
June 2012. 21 Finerfrock, 2006.
22 Shrum, Daniel B. "LLRW CQA/QC Plan — Clarification of Large Object Placement Considerations."
Letter to William Sinclair of the Utah Division of Radiation Control from Envirocare of Utah (as CD02 -
0481), November 20, 2002.
299 South Main Street, Suite 1700 • Salt Lake City, Utah 84111 [phone] • Fax: [phone] • www.energysolutions.com
ENERGYSOLUTIONS
Mr. Scott T. Anderson
CD18-0067
April 17, 2018
Page 8 of 15
regulatory information supporting a site-specific intruder assessment for the
SONGS RPV is that already approved by the Division.
B) Encapsulation of Discrete Items, Including Sealed Sources (BTP Section
3.8. 2):23
In Section 3.8.2 of the BTP, NRC recognizes that,
"The position on encapsulation in Section 3.3.4 is considered generally
suitable for all LLW disposal facilities licensed under 10 CFR Part 61 or
the equivalent Agreement State regulation. Other provisions may be used
on a specific basis for the encapsulation of items if—after an evaluation of
the specific characteristics of the waste form, the disposal site, intrusion
scenarios, and the method of disposal—there is reasonable assurance of
compliance with the inadvertent intruder performance objective in 10
CFR 61.42."
"As long as the proposed alternative provisions for an encapsulated item
meet the 10 CFR 61.55 waste classification requirements, licensees do not
need to seek authorization under 10 CFR 61.58 or request an
exemption. "24
Therefore, encapsulation guidance in Section 3.3.4 of the BTP is considered
suitable for the SONGS RPV under UAC R313-25, since the Division has
already reviewed and approved the specific characteristics of the waste form
(including the vessel's carbon steel, concrete, grout, and large component
CLSM-entombment), the Clive Facility disposal site, the site and
embankment's protections against inadvertent intrusion, and the depth and
method of disposal.
As such, Section 3.8.2 of the BTP supports a
"... reasonable assurance of compliance with the inadvertent intruder
performance objective in 10 CFR 61.42."
23 U.S. Nuclear Regulatory Commission. "Concentration Averaging and Encapsulation Branch Technical
Position, Revision 1 — Volume 2" Office of Nuclear Material Safety and Safeguards, U.S. Nuclear
Regulatory Commission, February 2015. (p. 37) 24 Ibid.
299 South Main Street, Suite 1700 • Salt Lake City, Utah 84111
[phone] • Fax: [phone] • www.energysolutions.com
„.....„.......-....,
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CD18-0067
April 17, 2018
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C) Likelihood of Intrusion (BTP Section 3.8.3):25
In Section 3.8.3 of the BTP, NRC clarifies when considering likelihood of
intrusion,
"... [t] he staff continues to believe that these waste types might pose a
unique hazard and that averaging constraints are appropriate. In
developing averaging constraints for discrete items, the staff has used
stylized carry-away scenarios.”
Clearly, the grout already present within the SONGS RPV, its 8-inch thick
outer steel shell, the minimum 4-feet of CLSM large component entombment,
and then 40 feet of other waste and rock armor above the entombed large
components reasonably minimize any inadvertent intruder "carry-away
scenario" risk (as has already been demonstrated an Division approved with
EnergySolutions' historic reactor pressure vessel and other large component
placement).
Therefore, the SONGS RPV is sufficiently similar to other large components for
which Energysolutions has demonstrated that encapsulation is appropriate
(according to the constraints included in Section 3.8 of the BTP).
4) The October 2002 Reactor Vessel and Internals Characterization Report
WMG-20004-9088, Rev. 6 states that the RPV head and piping have been
removed. The WMG-20004-9088 Report (Section 3.5.1) states that the RPV is
low-allow carbon steel with a nominal wall thickness of 9.75 inches in the
cylindrical region and 5.0 inches in the bottom head region. The Division
assumes that the piping and head flange openings have been sealed. No
mention of the cover material is made. Please provide a description of the
materials used to secure these flanges, the material thickness and the method
used to secure them. Also, the Division would like to see how these were
accounted for in the evaluation for an inadvertent intruder scenario.
WMG Response: The RPV primary coolant nozzles were cut flush with the
exterior of the RPV wall and 4 inch A-36 steel cover plates were welded in place.
It should be noted that the nozzle cover plates are contained within the canister
lower assembly shell. The 3 inch thick ASTM A572 Gr42 steel upper canister
closure plate was attached to the RPV flange using six rigging studs. Belzona
25 U.S. Nuclear Regulatory Commission, (p. 38)
299 South Main Street, Suite 1700 • Salt Lake City, Utah 84111
[phone] • Fax: [phone] • www.energysolutions.com
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Mr. Scott T. Anderson
CD18-0067
April 17, 2018
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2131 polymeric elastomer sealing material was used to seal all penetrations
through the canister plate assembly as required. The upper canister closure plate
was then welded to the canister lower assembly using a full penetration weld.26
Refer to EnergySolutions' response to question #3 for a discussion on the
inadvertent intruder scenario.
5) The October 2002 Reactor Vessel and Internals Characterization Report
WMG-20004-9088, Rev. 6, Table 5-1, shows a volume of 1,333 ft3 and a
weight of 658,695 lbs. The January 2018 Reactor Pressure Vessel Package
Characterization Table 1, shows a volume of 5.48e3 ft3 and a weight of 9.43e5
lbs. This is a difference of 4,147 ft3 and 284,305 lbs. Please account for these
disparities.
WMG Response: The results from WMG-20004-9088 Rev. 6 did not include the
weight of the cementitious grout in the package. The additional weight and
volume account for the grout which is consistent with the regulatory guidance for
encapsulation.27
6) The October 2002 Reactor Vessel and Internals Characterization Report
WMG-20004-9088, Rev. 6, Table 5-1, shows a package activity of 1.14e4
curies for 63Ni. The January 2018 Reactor Pressure Vessel Package
Characterization Table 1 and the table shown in Updated Classification
Status Report, 17-230-RD-218, July 2017 shows a package activity of 4.79e3
curies for 63Ni. It is noted in the Updated Classification Status Report, 17-
230-RE-218, July 2017, that the characterization results were "decay
corrected to the earliest anticipated shipping date of December 1, 2018.”
However, 63Ni activity would have decayed to 1.0186e4 curies in the period
between October 2002 and December, 2018. Please account for this
discrepancy.
WMG Response: The RPV characterization results reported in WMG-20004-
9088 were based on the original neutron transport and activation analysis. Initial
dose rate measurements were conservatively taken inside the RPV and were used
to normalize the activation analysis. This resulted in a high activity estimate,
since the dose rate measurements were biased high with shine from other
components within the RPV.
26 Tuite, 2018.
27 Tuite, 2018.
299 South Main Street, Suite 1700 • Salt Lake City, Utah 84111
[phone] • Fax: [phone] • www.energysohnions.com
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CD18-0067
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In December of 2001, detailed radiation surveys were obtained on components
which were removed from the reactor vessel and surveyed in an area with low
background radiation. These radiation survey results represent the best available
empirical information to benchmark or calibrate the activation analysis results.
The components were modelled using point kernel shielding techniques and the
calculated radiation dose rates were more than a factor of 2 higher than the actual
radiation levels on the components. Therefore, the activation analysis results
were normalized in a revised analysis performed in February of 2008 thereby
reducing the activity by a factor of 2.121 which was the ratio of the modelled dose
rate to the actual measured dose rate. This yielded a calculated Ni-63 activity of
4.79E+03 as of the reference date.28
7) The January 8, 2018 San Onofre Unit 1 Reactor Pressure Vessel Package
Characterization report states, "... a waste is not considered a RCRA
characteristic waste if the TCLP lead result is 4.5 mg/L. TCLP with an
uncertainty value of 1.0 mg/L." Please provide a reference for this statement.
Based on the uncertainty of 1.0 mg/L in your example, it would be considered
a characteristic waste in Utah.
Please see Response #1 with respect to the NRC statement regarding
measurement uncertainty.29
8) Utah Code 19-3-102(8)(a) states: "high-level nuclear waste" means spent
reactor fuel assemblies, dismantled nuclear reactor components, and solid
and liquid wastes from fuel reprocessing and defense-related wastes." Please
clarify how the SONGS Unit 1 RPV does not fit the description of
"dismantled nuclear reactor components."
In 1946, Congress established the United States Atomic Energy Commission
(AEC) to regulate the peacetime development of atomic science and technology.3°
The AEC was subsequently abolished in 1974 and succeeded by the U.S. Nuclear
Regulatory Commission (NRC) and the Energy Research and Development
Administration (now part of the U.S. Department of Energy).31 The Nuclear
Waste Policy Act of 1982 placed sole responsibility for oversight of the Country's
high-level nuclear waste and spent fuel with the Federal Government.
28 Tuite, 2018. 29 Hickley, 1990.
30 Sect. 1(a), Atomic Energy Act of 1946 (Public Law 585) 78th Cong. 1st sess.
31 Sect. 5801, Energy Reorganization Act of 1974 (Public Law 93-438) 106th Cong.
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ENERGY SOLUTIONS
Mr. Scott T. Anderson
CD18-0067
April 17, 2018
Page 12 of 15
Requirements of this Act are reflected in 42 U.S. Code § 10131(a)(4), which
states
"The Congress finds that—(4) ... the Federal Government has the
responsibility to provide for the permanent disposal of high-level
radioactive waste and such spent nuclear fuel as may be disposed of in
order to protect the public health and safety and the environment, the
costs of such disposal should be the responsibility of the generators and
owners of such waste and spent fuel;"
42 U.S. Code § 10101(12) defines high-level nuclear waste to mean,
"the highly radioactive material resulting from the reprocessing of spent
nuclear fuel, including liquid waste produced directly in reprocessing and
any solid material derived from such liquid waste that contains fission
products in sufficient concentrations; and (B) other highly radioactive
material that the Commission, consistent with existing law, determines by
rule requires permanent isolation."
42 U.S. Code § 10101(12) further defines "spent nuclear fuel" to mean,
'ficel that has been withdrawn from a nuclear reactor following
irradiation, the constituent elements of which have not been separated by
reprocessing."
These definitions do not include any reference to "dismantled nuclear reactor
components" such as reactor pressure vessels or reactor heads but rather are
specific to the actual spent nuclear fuel used in the reactor core. Energysolutions
is not aware of the basis of the Utah Code 19-3-102(8)(a) defmition for "high-
level nuclear waste" but can only assume given the federal defmition and
regulatory jurisdiction over high-level waste that "dismantled nuclear reactor
components" implies components that are directly in contact with the spent
nuclear fuel such as fuel rods made up of zirconium metal tubes and associated
fuel assemblies. As discussed below, the regulation of high-level waste is solely
the responsibility of the Federal Government, not individual states.
The Low-Level Radioactive Waste Policy Amendments Act of 1985 placed
responsibility with States for the disposal of low-level radioactive waste that has
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CD18-0067
April 17, 2018
Page 13 of 15
been generated within their borders.32 In support of the 1985 Act, 42 U.S. Code §
10101(16) specifically excludes high-level nuclear waste in its definition of low-
level radioactive waste,
"radioactive material that—(A) is not high-level radioactive waste, spent
nuclear fuel, transuranic waste, or by-product material as defined in
section 2014(e)(2) of this title; and (B) the Commission, consistent with
existing law, classifies as low-level radioactive waste. "[emphasis added]
Furthermore, the 1985 Act limits the transfer of authority to States that have
entered into Agreements with the NRC under section 274 of the 1946 Atomic
Energy Act to "regulate the disposal of low-level radioactive waste under such
agreement" [42 U.S. Code § 2021b(1)(B)].
On March 29, 1984, NRC entered into such an agreement transferring
stewardship for the regulatory oversight of low-level radioactive waste and
1le.(2) by-product material to the State of Utah.33 In accordance with its NRC
Agreement, the State of Utah has licensed EnergySolutions to manage Class A
low-level radioactive waste (via Radioactive Material License UT2300249) and
1le.(2) by-product material (via Radioactive Material License UT2300478).
Since it is contrary to the 1982 Act and not allowable by the 1985 Act, the NRC
Agreement did not transfer any authority nor further empower the State of Utah to
oversee management of high-level nuclear waste. In making this and similar
agreements, Title 42 of U.S. Code § 2021(c), notes that
"No agreement entered into pursuant to subsection (b) shall provide for
discontinuance of any authority and the Commission shall retain authority
and responsibility with respect to regulation of—(4) the disposal of such
other byproduct, source, or special nuclear material as the Commission
determines by regulation or order should, because of the hazards or
potential hazards thereof not be so disposed of without a license from the
Commission."
32 Low-Level Radioactive Waste Policy Act of 1985, As Amended (Public Law 99-240) 112th Cong. 2nd
sess. 33 U.S. Nuclear Regulatory Commission. "Agreement Between the United States Nuclear Regulatmy
Commission and the State of Utah for Discontinuance of Certain Commission Regulatory Authority and
Responsibility Within the State Pursuant To Section 274 of the Atomic Energy Act of 1954, as
Amended." Signed by Nunzio J. Palladino, Chairman and Utah Governor Scott M. Matheson, March
29, 1984.
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Mr. Scott T. Anderson
CD18-0067
April 17, 2018
Page 14 of 15
Consequently, authority to regulate the management and disposal of high-level
nuclear waste solely resides squarely with federal agencies. As such, the State of
Utah does not possess authority to promulgate nor act on any high-level nuclear
waste definition promulgated in Utah Code § 19-3-102(8)(a). Furthermore, any
action taken on such a definition is contrary to the limitations and conditions of its
1984 low-level radioactive waste oversight Agreement with NRC.
In addition, EnergySolutions has historically coordinated closely with the State of
Utah for receipt, management and disposal of large components (including reactor
pressure vessels) characterized as Class A low-level radioactive waste. For
example, in 2002, EnergySolutions (known then as Envirocare of Utah) and the
State of Utah exchanged correspondence on the appropriate physical
characteristics of sand saddles to be placed beneath the reactor head of the
SONGS RPV.34 Similarly, the Division offered concurrence in 2006 with
EnergySolutions' similar application of BTP guidance for classification of a
reactor vessel component from a different generator, noting
"For activated metal components, the [Division] interprets the BTP as
that classification may be based on the radionuclide concentrations
averaged over the [reactor vessel] component ..."35
After authorizing such for decades, electing now to arbitrarily alter the State's
historic approval of its disposal of large reactor components (including reactor
pressure vessels), that have been classified by NRC as Class A low-level
radioactive waste, significantly challenges EnergySolutions' ability to remain
competitive in the Class A waste disposal market. EnergySolutions has properly
received a license for management of Class A low-level radioactive waste from
the NRC and the State of Utah, and has been disposing of Class A waste,
including large components and reactor pressure vessels, pursuant to these
authorizations for decades. If the Division now takes the position that the State's
imprecise definition of high-level nuclear waste prohibits further disposal of large
Class A low-level radioactive waste reactor components, it deprives
EnergySolutions of an economically viable use of its licensed land without proper
administrative procedure and contrary to legal precedence.36
34 Shrum, 2002. 35 Finerfrock, 2006.
36 Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1029-30 (finding a regulatory taking when a regulation
"proscribe[d] a productive use that was previously permissible")
299 South Main Street, Suite 1700 • salt Lake City, Utah 84111
[phone] • Fax: [phone] • www.energysolutions.com
ENERGYSOLUTIONS
Mr. Scott T. Anderson
CD18-0067
April 17, 2018
Page 15 of 15
Therefore, the State of Utah does not inherently possess nor has it been granted
any regulatory authority to redefine or otherwise regulate high-level nuclear
waste. Similarly, the Division has granted licenses, renewed licenses and
otherwise closely coordinated with EnergySolutions in management of large
reactor components similar to the SONGS RPV (characterized as Class A low-
level radioactive waste, not high level nuclear waste). Subjectively prohibiting
disposal of the SONGS RPV because of the inaccurate and unauthorized
definition in Utah Code § 19-3-102(8)(a) is contrary to longstanding Division-
accepted practice, the regulatory authority of the Division, the federal definition
of high-level nuclear waste, and contrary to legal precedence.
EnergySolutions appreciates the Division's willingness to continue its long-standing
practice of providing concurrence regarding application of the BTP to the classification
of large reactor components. If these responses resolve its concerns, EnergySolutions
herein requests the Division's written concurrence with said application of the NRC
Branch Technical Position on Concentration Averaging and Encapsulation and that the
SONGS RPV can be disposed at Clive as Class A low-level radioactive waste (subject to
the accuracy of the generator's final characterization and classification — as directed by
the NRC).3 Should there be any questions regarding these responses or this Request,
please contact me at 801-649-2000.
Sincerely,
fp/0i e do040
Vem C. Rogers
Apr 17 2018 7:49 AM
Sian
Vern C. Rogers
Manager, Compliance and Permitting
cc: Don Verbica, DWMRC _
Kevin Carney, DWMRC
37 Hickley, 1990.
299 South Main Street, Suite 1700 • Salt Lake City, Utah 84111
[phone] • Fax: [phone] • www.energysolutions.com