DRC-2018-005806 - 0901a0688084787b

Srarn or UraH
OFFICII OF THE ATTORNEY CIINER^L
SEAN D. REYES
ATTORNEY CENERAL
SPENCER E. AUSTIN
Chi€f Criminal Dspuly
RIc CANTRELL
Chisf ol Slatf
TYLER R. GREEN
Solicilor General
BRIAN L, TARBET
Chief Civil Depuly
oAG-047- l8
'I'O:
FROM:
DATE:
MBMORANDUM
Scott'l'. Anderson, Director
Division o{'Waste Management and Itadiation Control
Utah Department o{' Iinvironmental Quality
Bret l'. Randall, Assistant Attorney General
Environment and llealth Division
Utah Attorney General's Office
June I 1,2018
SIJB.IRCT: Disposal of Nuclear Reaotor Components
OUESTION PRESENTET)
Whether a prcssure vessel ti'om the San Onofre Nuclear Generafing Station ("SONGS") that qualilies
as "Class A low-level radioactive waste" under the Utah Radiation Control Act (thc "Act"), Utah Codc $ l9-
i-105(cXl), but that also may tall within the meaning of "high-levelnuclcar waste" under the Act, Utah Code
g I 9-3- 102(8)(a), may be disposed of at EnergySolutions ' facility located near Ciive, Utah ("Clive Facility")
under its Radioactive Materials License.
SHOTTT ANSWER
The {Jtah Attrtrney General',r O/fice does not usually provide formal legal opinion.s. The contents o.f
thi,s lv{emorandum do not reflect any delermination mcule by Utah's Attorney General. Ralher, the ststemenl,t
made herein at'e my opinions of/ered in rny capacity as A,rsistdnt ,4ltorney (ieneral,
Utah law provides tools to assist in the interpretation and application of the Utah Code in situations
where two provisions of the Utah Code purport to cover the samc subject matter. Under those rules, it is
reasonable to interpret the Act to allow for the disposal of the materials in cluestion under EnergySo/ution:;'
Liccnse, which authorizcs EnergySct/l.rtiansto rcccive and dispose of Class A low-levcl radioactive waste. It
shoul<J bc appreciated, however, that the statutory provisions at issue arc not clear and that a rcviewing coutl
ENV1R9NTVIENTANDHEALTHD1vtstoN.ENV;RONMENTSTCTTOT.TELEeHoNE: [phone].FaCSlMlLE: [phone]
MAILING ADDRESSI P.O, BOX 140873 . SALI LAKE CITY' UIAH 84114-0873
STREET AOORESS: 195 NORTH 1950 WESI, 2*O FLOOR SOUTHWES-I' ' SAIT LAKE CITY, UTAH 841 1 6
3.
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Disposal of Class A
Nuclear Reactor Components
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may disagree with the proposed application of the Act, which is below. The Utah Legislaturc may also clarify
the Act at any time. As a result, the conclusions suggested herein are merely provisional.
l.
BACKSROUNp
EnergySolutions is the owner and operator of a low-level radioactive waste disposal f'acility near Ciive,
Utah.
EnergySolutions'operations at the Clivc Facility are subject to the Act, thc rules promulgated by the
former Utah Radiation Control Board and the present Utah Waste Management and Radiation Control
Eloard, and a Radioactive Materials License #UT 2300249 (the "License") issued and overseen by the
Director of the Division of Waste Management and Radiation Control (the "Director").
Pursuant to the Act, the Low-Level Radiation Control Rules, and its License, EnergySolutirsns is
authorized to receive ard dispose of low-level, Class A radioactive waste. Conversely, under the same
authorities, it is prohibited from receiving or disposing of higher classes of radioactive wastes,
including Class B, Class C, and high-level radioactive waste.
EnergySoiu tions ispresently involved in decommissioning work at the SONGS, located in California.
Pursuant to a Memorandum addressed to the Director on January 8, 2018, entitled "San Onofre Unit 1
Reactor Prcssure Vessel Package Characterization," EnergySolullons seeks concuffence from the
Director as to EnergySolutions' plan to receive the San Onofre Unit 1 Reactor Pressure Vessel (the
"SONGS Reactor Pressqle Vessel") fcrr disposal at the Clive Facility,
EnergySo/ations contends that the SONGS Reactor Pressurc Vessei qualifies as Class A low-level
radioactive waste under I'cderal law, the Act, the Rules, and the Licensc, and theretbre may be received
and disposed of at the Clive Facility.
For purposes of this Memorandum, it is assumed that the SONGS Reactor Pressure Vessel has been
properly classified as Class A low-lcvel radioactive waste under federal law,
The Director's March 16,2018, letter presented a legal question to Energy,Solutions as to whether the
SONGS Reactor Pressure Vessel qualified as a "high-level" waste under the Act. More specifically,
the Director posed the following question: "Utah Code l9-3-102(8Xa) 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 I RPV does not fit the description of 'disrnantled nuclear reactor componcnts."'
By letters dated April 17,2018, and May 29,2018, EnergySolutions has presented legal arguments as
to why the proposed disposal of the SONGS Reactor Pressure Vessel is appropriate under the Act.
While I do not find that the analysis provided to be particularly persuasive, I do believe that it is
reasonable to interpret the Act to allow for the disposal of the SONGS Reactor Pressure Vessel in this
instance, in the absence of a contrary judicial dctermination or clarification from the Legislature.
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Disposal of Class A
Nuclear Reactor Components
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g. For many years, the former Division of Radiation Control ("DRC") interpreted the Act to allow for
EnergySo/utions and its predecessor, Envirocare, to receive and dispose ol'"large components" that
qualified as Class A low-leve I radioactive waste at the Clive Facility. Present Division stafl'are not
aware of adverse public comments or legislative inquiries objecting to this interpretation of the Act.
ANALYSIS
Summarizing Energy,go lutions May 29,2018, letter, its tirst legal argument is that that the word "and"
in the definition of "high lcvel waste" under the Act should be read in the conjunctive, resulting in a situation
where "all elements [must] be present to meet the dcfinition." 'l'hus, under EnergySolutions'proposed
interprctation, to qr"ralify as a "high level rvaste," a material must meet all of the following criteria: (i) spent
reactor fuel assemblies;-and, (ii) dismantlcd nuclear reactor components; and, (iii) solid and liquid wastes from
f'uel reprocessing; and, (iv) <Jefensc-rclated wastes." Any material that does not meet all the elcments of this
definition, EnergySb/ulions,contends, is not "high-level waste.o' EnergySolu/ions' second argument is that the
Utah Legislatuie does not have authority to create a definition fbr high-level nuclear wastss, Third,
EnergySJ/z tions contends that the Utah definition of high-level waste has no technical definition in that "it
does not reference radioactivity in any sense." Therefore, the definition cannot be effectively applied. Fourth,
ISnergySo/u tionr argues that the LJtah definition of'high-tevel waste is preempted by federal law. Finally,
nnergySotutions contends that the Utah definition of high-level waste violates the State's agreement with the
Unitcd States Nuclear Itegulatory commission to assume responsibility for regulation of low-level radioactive
wastes.
After detailed cglsideration of EnergySo/u tions' argumcnts and the legal authorities raised, I suggest
that a dil.lbrent-and rnore simple-analysis of Utah law be applied to answer the question prcsented. Morc
specifically, I am persuaded that this matter likely prcsents a situation of legal ambiguity-where a statute may
piausibly be interpretcd in two different *uyr uf th. same time. On the one hand, based on the facts outlined
above ancl under a ,,plain language" approach to the statute, it is reasonable to read the dehnition of'"high-
level radioactive wasie" in ttre dislun"iiur and conclude that the SONGS Reactor Pressure Vessel qualifies as
a ,,dismantled nuclear reactor component" and, therefbre, that it is a "high-level radioactive waste" that is
prohibited. Without going through i detailed analysis, suffice it to say that I am not persuaded that a reviewing
Utah court would ua.ipt eietgySilutionsargument that the definition should be read in the conjunctive because
no such material likeiy existi., Under o ptuin language approach that adopts a disjunctive reading of the iist
in the ,,high-level radioactive waste" definition, ttre SONOS Reactor Pressure Vessel would qualify as a "high-
level raclioactive waste," regardless of its actual radiation levels, which category of wastes thc Utah Legislature
has provided is prohibited from the State of Utah. At the very same time, however, under the very same Act,
the SONGS Reactor Pressure Vcssct is "Class A low-level radioactive waste" that may be received and
r In rny view, the conjunctive interpretation of the definition proposed by Energysri/ulions would rendcr the "high-level radioactive
waste,, cicfinition a nullity because no qualif ing substance exists-a material that is simultaneously a spent reactor fuel assembly
that is also a dismantled nuclear.reactor component that is also a solid and liquid waste from fuel reprocessing that is also a defense-
related waste. 'l'his narrow interpretation would lead to an absurd result that could not reasonably have been inlended by thc
l,egislatnre, in my view. As to tlie other arguments raised by Energyso/utions, delailed considelation is not required in order to
reach the conclusion presentcd hcrc.
Disposal of Class A
Nuclear Reactor Components
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disposed of at the Clive Facility under EnergySolutions' license and the Utah Radiation Control Rules.2 Thus,
the Act is ambiguous as a nlatter of law.
Most often, a reviewing Utah court interprets statutes based on the plain language, without reliance on
outside interpretative guides. I{owever, legal ambiguity in statutes arises from time to time in judicial cases.
In this matter, the question becomes whether the legislature intended to excludc all dismantled nuclear rcactor
components regardless of radioactivity levels, or whether those dismantled nuclear reactor components thal
also qualify as Class A low-level radioactive waste may be received on the same basis as other types of Class A
wastes, which are allowed.
When a statute is ambiguous, a reviewing Utah court relies on various cannons of statutory
interpretation to guide the analysis. As an initial matter, I note that the Utah Legislature itself has provided a
general rule of interpretation in the Utah Code. Title 68, "Statutes," Chapter 3, "Construction," specifically,
Section 68-3:-2(3), provides: "Each provision of, and each proceeding under, the Utah Code shall be construed
with a view to elfeet the objects of the provision snd to promote justice." (emphasis added). ln addition to
this canon of interpretation, there are several judicial cases dealing with similar situations. Among these, one
tbirly recent case could be applied here. ln Carter v. University rf Utah Medical Center,2006 UT 78, 150
P.3d 467, the Utah Supreme Court was faced with a situation where the venue provisions of two different acts
could have applied to a given set of facts (and, hence, the Utah Code provisions at issue were legally
ambiguous). 'l'he Supreme Court provided the following analysis:
fl9 ln this case, "we are faced with two statutes that purport to cover the same subject." Jensen
v, IHC Hosps., lnc.,944 P.2d327,331 (Utah 1997). To determine which statute controls, we
"follow the general rules of statutory construction." ld, When we engage in statutory
construction, "our prirnary goal . . . is to evince 'the true intent and purpose of the Legislature
[as expressed throughl the plain language of the Act."' Hallv. Dep't ctf'Corr.,200l UT 34, tl
15,24 P.3d 958 (alteration in original) (quoting ,lensenv. fntermountain Healthcare, \nc.,679
P.2d 903,906 (Utah 1984). Determining the legislature's intent recluires thar "we seek to
render all parts [of the statutc] relevant and meaningful, and we accordingly avoid
interpretations that will render portions of a statute superfluous or inoperative." Id. (internal
citation and quotation marks omitted).
In the present matter, we are faced with two definitions that purpoft to cover the same subject, As described
above, the legislature itself states that "[e]ach provision ol, and each proceeding under, the tJtah Code shall be
construed with a view to effect the objects of the provision and to promote justice." Utah Code $ 68-3-2(3).l'he self-evident object of the provisions at issue here is that Class A low-level radioactive wastes are
appropriate for disposal at the Clive Facility pursuanl to the License. Considering the Act as a whole, the sclf-
evident object of the Legislature in defining "high-level waste" appears to have been to prevent the disposalof radioactivc wastes with federal classifications above Class A low-level radioactivc waste because such
2 As statcd above, this Mcmorandum assumes that the SONGS Reactor Pressure Vessel qualifies as a Class A low-level radioactive
waste under the tcchnical federal definition (which is adopted in the Act). The technicil details associated with this question are
beyond the scope of this Memorandum. Suffice it to say that if the SONGS Reactor Pressure Vessel does not quali! as Class Alow-level radioactive waste, it may not be received by EnergySo/utions pursuant to its License, the Act, and the itadiition Con6olRules, for reasons that are completely unrelated to the Act's definition of high-level radioactive waste, the subiect of thisMemorandum
Disposal of Class A
Nuclear Reactor Components
Page 5
wastes may present higher risks to the citizens of Utah. In other words, the legislature appears to have been
primarily concerned about the radioactivity-related risks presented by radioactive wastes. To me, this appears
to be the "object of the provision" at issue because commercial Class A low-level radioactivity wastes (a
category which is defined by reference to radioactivity levels) are deemed adequately safe for disposal in tJtah.
The dcfinition of Class A low-level radioactive waste regulates wastes in relation to their specific radiation
levels. As a result, I find this dcfinition to be more specific than thc general definition of "high-level"
radioactive wastes thal includes (among crther things), all dismantled components of nuclear reactors, without
respect to radioactivity levels. ln Carter, the Supreme C<lurt teaches that "when we are confronted with two
statutory provisions that confiict, the provision more specific in application govsms over thc more general
provision." 2006 U'f 78, 1[9 (intemal quotation marks omitted), 'l'his reading of the Act comports with the
argumcnts raised on page 5 of DnergySolutions'May 29,2018 letter, lirst partial paragraph, last sentence, to
the effecl that the legislature has shown a clear public purpose to regulate materials based on radioactive levcls.
The Class A definition does so with technical specificity, while the high-level definition is not as specific.
Based on thc fbrcgoing analysis, to harmonize the apparent definitional conflict, it is reasonable to
interpret the Act to mean that dismantlcd nuclear reactor components that also qualify as Class A low-level
radioactive waste are not prohibited for disposal at the Clive facility under the Act.
CONCLUSION
The present matter requires that the Director interprct the Act as it applies to the SONGS Pressure
Reactor Vessel. In interpreting thc Act, the Director's goal should be the same as the Utah Suprcme Court's,
nanrely, "to ascertain the true intent and purpose of the l.egislature." Carter,2006 UT 78, fl l0 (internal
quotation marks omitted). Ilased on the foregoing analysis, I conclude that it is reasonable to interpret the Act
tb allow lbr the disposal of the SONGS Pressure Reactor Vessel (assuming it qualifies as commercial Class A
low-level radioactive waste) because Energy,lo/r,rriorzs has a license to rsceive and dispose of commercial
Class A low-leve I radioagtive waste and the policy decision has already been made that disposal of commcrcial
Class A low-levei radioactive waste is appropriate at the Clive Facility. Of the two competing definitions, the
definition of Class A low-level radioactive wastc is more specific and its application here comports with the
Legislature's apparent policy of keeping more dangerous wastes out of the State of Utah, while allowing fbr
thc disposal of Class A low-level radioactive wastcs, This goal is best achievcd by using a specilic definition
that reiies on levels of radiation as comparcd to a more general definition. This conclusion is also consistent
with the way the fgrmer DRC interpreted and applied the Act as to large components that are presently disposed
of at the Clive Facility, which actions have not been the subject of adverse public comments or Legislative
inquiries in the past, to the knowlcdge of present Division staff.
It should be understood that the relevant code sections outlined above are likely ambiguous as a matter
of law and have not been judicially intcrpreted. A reviewing Utah court may not defer to an agency's
interpretation of the law. 'l'irus, it is possible that a reviewing Utah court could reasonably reach a diflbrent
conciusion than outlined above-*-that the Act means that any and all dismantled nuclear reactor components
are prohibited from 6isposal in Utah, regardless of whether or not thcy qualify as Class A low-levei nuclear
*uri". It is also possibie that the Legislature could disagree with this interpretation and clarify the statute at
any time. As a result, the narrow conclusion presented here shor"rld be considered to be provisional.
IIF'IVsrb