DRC-2024-007351

299 South Main Street, Suite 1700 ▪ Salt Lake City, Utah 84111 [phone] ▪ Fax: [phone] ▪ www.energysolutions.com
September 24, 2024 CD-2024-195
Mr. Doug Hansen, Director Division of Waste Management and Radiation Control P.O. Box 144880 Salt Lake City, UT 84114-4880
Subject: Radioactive Material License UT 2300249; Request for Written Concurrence of Permissibility of Disposal of Hanford Test Bed Initiative Waste Dear Mr. Hansen:
EnergySolutions herein requests your written concurrence that the TBI Waste (as defined below) that qualifies as “Class A low-level radioactive waste” under the Utah Radiation Control Act (the “Act”), Utah Code Section 19-3-105(c)(i), but that also may meet the definition of “high-level nuclear waste” under the Act, Utah Code Section 19-3-102(8)(a), may be disposed of at the EnergySolutions Clive, Utah facility under its
Radioactive Material License UT 2300249. A. Background EnergySolutions owns and operates the low-level radioactive waste disposal facility near
Clive, Utah (the “Clive Facility”). EnergySolutions’ operations at the Clive Facility are subject to the Act, rules established by the former Utah Radiation Control Board and the current Utah Waste Management and Radiation Control Board, as well as Radioactive Materials License #UT 2300249 (the “License”), overseen by the Director (the “Director”) of the Division of Waste Management and Radiation Control (the
“Division”). Under the Act, the Low-Level Radiation Control Rules, and its License, EnergySolutions is authorized to receive and dispose of Class A low-level radioactive waste. However, it is prohibited from receiving or disposing of higher classes of radioactive wastes,
including Class B, Class C, and high-level nuclear waste. The term “Class A low-level radioactive waste” is defined in Utah Code Section 19-3-105(c)(i) to mean “radioactive waste that is classified as class A waste under 10 C.F.R. 61.55.” The term “high-level nuclear waste” is defined in Utah Code Section 19-3-
102(8)(a) as “spent reactor fuel assemblies, dismantled nuclear reactor components, and solid and liquid wastes from fuel reprocessing and defense-related wastes.” 1

1. While the definition of the term “Class A low-level radioactive waste” in the Act is consistent with the federal definition of the same term, the definition of the term “high-level nuclear waste” under the Act is
materially different with the definition of the equivalent term under federal law as the federal definition is more specific and includes a technical component. “High-level radioactive waste” is defined in Section 2(12) of the Nuclear Waste Policy Act of 1982, as amended (42 U.S.C. 10101, et seq.), as: “(A) the highly radioactive material resulting from the reprocessing of spent nuclear fuel, including liquid
Mr. Doug Hansen CD-2024-195 September 24, 2024 Page 2 of 6

299 South Main Street, Suite 1700 ▪ Salt Lake City, Utah 84111 [phone] ▪ Fax: [phone] ▪ www.energysolutions.com
The U.S. Department of Energy (the “DOE”) is planning a demonstration project to dispose of approximately 2,000 gallons of supernate -- the top liquid layer of tank waste
containing low levels of insoluble, long-lived radionuclides – from Tank SY-101 at the
Hanford Site in the State of Washington. This waste is a byproduct of the historical reprocessing of spent nuclear fuel during the Manhattan Project and Cold War. The supernate will be separated and pretreated at the Hanford Site and then shipped to an offsite commercial treatment facility for solidification. After solidification, the DOE
intends to dispose of the treated waste as mixed low-level radioactive waste at either the
Clive Facility or the Waste Control Specialists Federal Waste Facility near Andrews, Texas. As used in this memo, the pretreated and solidified waste shall be referred to as the “TBI Waste.” 2
The DOE evaluated the TBI Waste and concluded that it is “waste incidental to
reprocessing of spent nuclear fuel, is not high-level radioactive waste, and may be managed as low-level radioactive waste under the criteria set forth in Chapter II.B.(2)(a) of the [DOE] M 435.1-1, Radioactive Waste Management Manual.”3 The DOE consulted with the U.S. Nuclear Regulatory Commission (“NRC”), which agreed with this
assessment.4 The DOE has expressed its intention to dispose of 1,000 gallons of TBI
Waste at the Clive Facility, which meet the technical definition of “Class A low-level radioactive waste” under the Act. The Director reviewed the DOE’s Draft Waste Incidental to Reprocessing Evaluation for
Test Bed Initiative Demonstration and informed the DOE that it has no objection to the
disposal of the TBI Waste at the Clive Facility, provided the material meets the facility’s Waste Acceptance Criteria (“WAC”). The Division emp and noted that meeting the Clive Facility’s WAC is “crucial as the Director emphasizes that compliance with the WAC is essential for ensuring that its Low-Level Radioactive Waste Program remains adequate
and compatible with NRC regulations.” 5

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.” 2 This memo focuses on seeking the Director’s concurrence that EnergySolutions can properly dispose of the TBI Waste at the Clive Facility as Class A low-level radioactive waste. EnergySolutions recognizes that the Director’s decision on this issue will also determine in the first place if EnergySolutions is authorized to even receive and solidify this material at the Clive Facility prior to disposal. For purposes of simplification, however, in this memo we have framed the issue around disposal and not also receipt and solidification. 3 Final Waste Incidental to Reprocessing Evaluation for the Test Bed Initiative Demonstration, March 16, 2023.
4 Technical Evaluation Report, Draft Waste Incidental to Reprocessing Evaluation for the Test Bed Initiative Demonstration, Final Report, June 2022.
5 Letter from Douglas J. Hansen, Director to U.S. Department of Energy, January 21, 2022.
Mr. Doug Hansen CD-2024-195 September 24, 2024 Page 3 of 6

299 South Main Street, Suite 1700 ▪ Salt Lake City, Utah 84111 [phone] ▪ Fax: [phone] ▪ www.energysolutions.com
B. The Division has a Long-Standing Practice of Interpreting High-Level Nuclear Waste to Allow EnergySolutions to Dispose of Material as Class A Low-Level Radioactive Waste that are Otherwise Included in the Definition of High-Level
Nuclear Waste.
For many years, the former Division of Radiation Control ("DRC") and the current Division have interpreted the Act to allow for EnergySolutions and its predecessor, Envirocare, to receive and dispose of waste classified as Class A low-level radioactive
waste at the Clive Facility, even if those waste streams fall under the State’s definition of
high-level nuclear waste. For instance, while “dismantled nuclear reactor components” are specifically included in the high-level nuclear waste definition, the DRC and the Director have permitted the disposal of such components from over 21 nuclear power plants at the Clive Facility for more than 25 years, as they qualified as Class A low-level
radioactive waste. 6
Furthermore, even though “defense-related wastes” are also part of the high-level nuclear waste definition, the DRC and the Director have authorized EnergySolutions to dispose Class A low-level waste from various U.S. Department of Defense projects at the Clive
Facility since at least 1998. In these instances, the critical question was whether the waste
met the criteria for Class A low-level Waste and complied with the Clive Facility’s WAC. If it did, the DRC and the Director permitted the disposal, regardless of the ambiguous definition of high-level nuclear waste in the Act. To EnergySolutions’ knowledge, this decision by the DRC or the Director has ever been challenged by the
public or the Utah legislature.
C. The Division Should Apply the Legal Analysis Provided by the State of Utah Office of the Attorney General Which Was Relied Upon by the Director in 2018 to Allow the Disposal of a Dismantled Nuclear Reactor Component from the San
Onofre Nuclear Generating Station at the Clive Facility.
In April and May 2018, EnergySolutions sought the Director’s concurrence to dispose of a reactor pressure vessel from the San Onofre Nuclear Generating Station (SONGS) at the Clive Facility, despite the inclusion of “dismantled nuclear reactor components” in
the definition of high-level nuclear waste. EnergySolutions maintained that since the
SONGS reactor pressure vessel qualified as Class A low-level waste under the Act, it could be legally disposed of at the Clive Facility in accordance with its License.

6 These plants include: Beaver Valley Nuclear Power Station, Brunswick Nuclear Plant, Cooper Nuclear Station, Crystal River Nuclear Plant, Davis-Besse Nuclear Power Station, D.C. Cook Nuclear Plant, Enrico Fermi Nuclear Generating Station, Fort Calhoun Nuclear Generating Station, Humboldt Bay Nuclear Power Plant, James A. FitzPatrick Nuclear Power Plant, Kewaunee Power Station, La Crosse Boiling Water Reactor, LaSalle County Nuclear Generating Station, McGuire Nuclear Station, Peach Bottom Atomic Power Station, Pilgrim Power Station, Prairie Island Nuclear Generating Plant, Quad Cities Generating Station, Rancho Seco Nuclear Generating Station, San Onofre Nuclear Generating Station, South Texas Nuclear Generating Station, and Zion Nuclear Generating Station.
Mr. Doug Hansen CD-2024-195 September 24, 2024 Page 4 of 6

299 South Main Street, Suite 1700 ▪ Salt Lake City, Utah 84111 [phone] ▪ Fax: [phone] ▪ www.energysolutions.com
As part of the Director’s review, he requested legal analysis from Bret Randall, Assistant Attorney General from the Utah Attorney General’s Office. In a memo dated June 11,
2018, Mr. Randall concluded that it was reasonable to interpret the Act as permitting the
disposal of the SONGS reactor pressure vessel at the Clive Facility, provided there was no contrary judicial ruling or legislative clarification. A copy of this memo is included with this letter. EnergySolutions agrees with Mr. Randall’s analysis and believes it applies equally to the TBI Waste in this case.

We invite the Director to review Mr. Randall’s memo in its entirety and would like to highlight a few key points from it here. 1. The definition of High-Level Nuclear Waste should be “Construed with a
View to Effect the object of the Provision and to Promote Justice.”
When there is legal ambiguity in how to interpret a statute, Utah courts rely on canons of statutory interpretation to guide their analysis. One such canon, adopted by the Utah legislature in Title 68, “Statutes”, Chapter 2, “Construction,”
states that “Each provision or, and each proceeding under the Utah Code shall be
construed with a view to effect the objects of the provision and to promote justice.” Additionally, the Utah Supreme Court offers valuable guidance in determining the legislature’s intent behind ambiguous statutes: “We seek to render all parts [of the statute] relevant and meaningful, and we accordingly avoid
interpretations that will render portions of a statute superfluous or inoperative.” 7
Regarding the potentially conflicting definitions of Class A low-level radioactive waste and high-level nuclear waste, we believe the Director should consider the legislature’s intent behind the Act. The Act clearly aims to regulate materials
based on their radioactivity. Accordingly, the legislature permits the disposal of
Class A low-level radioactive waste while prohibiting the disposal of higher-level radioactive waste. Only by considering the radioactivity levels can the legislature’s intent be fulfilled.
Ignoring the radioactive level (or requiring waste to possess any level of
radioactivity) to determine if waste qualifies as high-level nuclear waste would yield absurd outcomes. For example, the definition of high-level nuclear waste includes “defense-related waste” without further clarification or criteria. This could lead to the interpretation that any waste generated by the U.S. Department
of Defense, regardless of its radioactivity, is classified as high-level nuclear waste. Such an interpretation could mean that any solid waste, such as refuse from
7 See Carter v. University of Utah Med. Center, 2006 UT 78, ¶ 12, 150 P.3d 467. See also Veysey v. Veysey, 2014 UT App 264, 339 P.3d 131, 134 (same).
Mr. Doug Hansen CD-2024-195 September 24, 2024 Page 5 of 6

299 South Main Street, Suite 1700 ▪ Salt Lake City, Utah 84111 [phone] ▪ Fax: [phone] ▪ www.energysolutions.com
Hill Air Force Base, would be deemed high-level nuclear waste and thus could not be disposed of in Utah. This scenario is clearly unreasonable and unlikely to have been the intention of the Utah legislature.
2. The specific language of Utah Code §19-3-105 governs over the general language of Utah Code §19-3-102. Another relevant canon of statutory interpretation from the Utah Supreme Court
states that “when we are confronted with two statutory provisions that conflict,
the provision more specific in application governs over the more general provision.” 8 In this instance, the definition of Class A low-level radioactive waste is specific and technical, while the definition of high-level nuclear waste lacks such specificity. Therefore, the Director should conclude that since the TBI Waste
meets the precise technical definition of Class A low-level radioactive waste,
EnergySolutions is authorized to dispose of it at Clive. This conclusion aligns with the legislature’s intent to permit the disposal of waste with low-levels of radioactivity while prohibiting the disposal of higher radioactivity levels.9
D. A Decision to Allow the Disposal of the TBI Waste at the Clive Facility is Consistent with the Director’s January 21, 2022 Letter to the DOE. As previously mentioned, the Director reviewed the DOE’s Draft Waste Incidental to Reprocessing Evaluation for Test Bed Initiative Demonstration and communicated to the
DOE that there were no objections to the disposal of the TBI Waste at the Clive Facility,
provided the material met the facility’s WAC. Following this correspondence, the DOE believes that EnergySolutions has the regulatory authority to dispose of the TBI Waste at the Clive Facility in accordance with its License. The DOE has made significant efforts to ensure that the TBI Waste complies with federal requirements for disposal as Class A
low-level radioactive waste, making it eligible for off-site commercial disposal facilities.
The Director’s concurrence with EnergySolutions’ request would align with the response provided to the DOE. E. Conclusion

EnergySolutions acknowledges the unfortunate and unintended conflict between the statutory definitions of Class A low-level radioactive waste and high-level nuclear waste.

8 See Carter, 2006 UT 78, ¶ 9. The Utah Court of Appeals reaffirmed this canon of statutory interpretation in State v. Buttars, 2020 UT App 87, ¶ 34, 468 P.3d 553, 562. 9 The initial language of Utah Code §19-3-102 and 105 was first enacted by the Utah Legislature in 1990 in S.B. 255. (See Laws of Utah – 1990, Chapter 297, Sections 2 and 3). The language makes clear that no “radioactive” waste can be stored or disposed of in Utah unless the receiving facility “first submit[s] and receiv[es] the approval of the department for a radioactive material license for the facility.” Thus, the legislative intent has always been that radioactive waste (defined broadly) may be disposed of if the specific material qualifies for a license.
Mr. Doug Hansen CD-2024-195 September 24, 2024 Page 6 of 6

299 South Main Street, Suite 1700 ▪ Salt Lake City, Utah 84111 [phone] ▪ Fax: [phone] ▪ www.energysolutions.com
Despite this conflict, EnergySolutions has been authorized for over 25 years to dispose of materials classified as Class A low-level radioactive waste that meet the Clive Facility’s WAC. For the reasons outlined herein, EnergySolutions believes it is authorized under its
License, in alignment with the Utah legislature’s intent when it adopted the Act, to
dispose of the TBI Waste at the Clive Facility. We respectfully request the Director’s concurrence on this matter. Additionally, EnergySolutions recognizes that it would be beneficial for the Utah
legislature to address this conflict and amend the definition of high-level nuclear waste to
align with the federal definition. EnergySolutions supports such an initiative and has already begun discussions with legislative members regarding this issue. Please feel free to reach out if you have any questions or would like to discuss this
further.
Sincerely,

Vern C. Rogers Director of Regulatory Affairs
enclosure

Vern C.
Rogers
Digitally signed by Vern C. Rogers DN: cn=Vern C. Rogers, o=EnergySolutions, ou=Waste
Management Division,
email=[e-mail], c=US Date: 2024.09.24 07:18:18 -06'00'

299 South Main Street, Suite 1700 ▪ Salt Lake City, Utah 84111 [phone] ▪ Fax: [phone] ▪ www.energysolutions.com
EXHIBIT A Disposal of Nuclear Reactor Components (OAG-047-18) June 11, 2018
Srarp op Urau
OFFICE OF THE ATTORNEY GENERAL
SEAN D. REYES
ATTORNEY GENERAL
SPENcER E, AUSTIN
Chief Criminal Deputy
RIc CANTRELL
Ch¡ef of Staff
TYLER R. GREEN BRIAN L. TARBET
Ch¡ef C¡v¡l Deputy
TO
Solicitor Genôral
oAG-047-18
MEMORANDUM
Scott T. Anderson, Director
Division of Waste Management and Radiation Control
Utah Department of Environmental Quality
FROM:Bret F. Randall, Assistant Attorney General
Environment and Health Division
Utah Attorney General's Office
DATE: June 11,2078
SUBJECT: Disposal of Nuclear Reactor Components
OUESTION PRESENTED
Whether a pressure vessel from the San Onofre Nuclear Generatìng Station ("SONGS") that qualifies
as "Class A low-level radioactive waste" under the Utah Radiation Control Act (the "Act"), Utah Code $ 19-
3-105(c)(1), but that also may fall within the meaning of "high-level nuclear waste" under the Act, Utah Code
g l9-3-102(SXa), may be disposed of at EnergySolutions ' facility located near Clive, Utah ("Clive Facility")
under its Radioactive Materials License.
SHORT ANSWER
The Utah Attorney General's Office does not usually provide formal legal opinions. The contents of
this Memorandum do not reflect any determination made by Utah's Attorney General. Rather, the statements
made herein qre my opinions offered in my capacity as Assistant Attorney Generql.
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 same subject matter. Under those rules, it is
reasonable to interpret the Act to allow for the disposal of the materials in question under EnergySolutions'
License, which authorizes EnergySolutions to receive and dispose of Class A low-level radioactive waste' It
should be appreciated, however,thatthe statutory provisions at issue are not clear and thata reviewing court
ENVrRoNtvrENr AND HEALTH DtvtstoN . ENVTR6NMENT Seclo¡r . TeLepHorue: [phone] . FAcslMlLE: [phone]
MAILING ADDRESS: P.O. BOX 140873 . SRLT LRKC CITY' UTAH 84114-0873
STRETI AooNCSS: 1 95 NORTH 1 950 WEST, 2NO FLOOR SOUTHWEST . SALT LRTC C V, UTAH 841 I 6
1
2
Disposal of Class A
Nuclear Reactor Components
Page2
may disagree with the proposed application of the Act, which is below. The Utah Legislature may also clarify
the Act aT any time. As a result, the conclusions suggested herein are merely provisional.
BACKGROUND
EnergySolutions isthe owner and operator of a low-level radioactive waste disposal facility near Clive,
Utah.
EnergySolutions'operations at the Clive Facility are subject to the Act, the rules promulgated by the
formðr Utah Radiation Control Board and the present Utah Waste Management and Radiation Control
Board, 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, EnergySolutions is
authorized to receive and 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.
EnergySolutions 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 Pressure Vessel Package Characterization," EnergySolu/lons seeks concurrence from the
Director as to EnergySolutions'plan to receive the San Onofre Unit 1 Reactor Pressure Vessel (the
"SONGS Reactor Pressure Vessel") for disposal at the Clive Facility.
EnergySolutions contends that the SONGS Reactor Pressure Vessel qualifies as Class A low-level
radioâctive waste under federal law, the Act, the Rules, and the License, and therefore 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-level radioactive waste under federal law.
The Director's March 16,2018, letter presented alegal question to EnergySolutions 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 19-3-102(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 'dismantled nuclear reactor components."'
By letters dated April 17 ,2018, and May 29,2018, EnergySo lutions 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 determination or clarification from the Legislature.
J
4
5
6
7
8
9
Disposal of Class A
Nuclear Reactor Components
Page 3
For many years, the former Division of Radiation Control ("DRC") interpreted the Act to allow for
EnergySolutions and its predecessor, Envirocare, to receive and dispose of "large components" that
qualified as Class A low-level radioactive waste at the Clive Facility. Present Division staff are not
aware of adverse public comments or legislative inquiries objecting to this interpretation of the Act.
ANALYSIS
Summarizing EnergySolutions }rlay 29,2018,letter, its first legal argument is that that the \¡/ord "and"
in the definition of "high level waste" under the Act should be read in the conjunctive, resulting in a situation
where "all elements [must] be present to meet the definition." Thus, under EnergySolutions' proposed
interpretation, to qualify as a "high level waste ," a mafeÍial must meet all of the following criteria: (i) spent
reactor fuel assemblies; and, (ii) dismantled nuclear reactor components; and, (iii) solid and liquid wastes from
fuel reprocessing; and, (iv) defense-related wastes." Any material that does not meet all the elements of this
defìnition, EnergySolutions contends, is not "high-level waste." EnergySolutions' second argument is that the
Utah Legislature does not have authority to create a definition for high-level nuclear wastes, Third,
EnergySolutions 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,
EnergySolutions argues that the Utah dehnition of high-level waste is preempted by federal law, Finally,
EnergySolutions contends that the Utah definition of high-level waste violates the State's agreement with the
United States Nuclear Regulatory commission to assume responsibility for regulation of low-level radioactive
wastes.
After detailed consideration of EnergySo lutions' arguments and the legal authorities raised, I suggest
that a different-and more simple-analysis of Utah law be applied to answer the question presented. More
specihcally, I am persuaded that this matter likely presents a situation of legal ambiguity-where a statute may
plausibly be interpreted in two different ways at the same time. On the one hand, based on the facts outlined
above and under a "plain language" approach to the statute, it is reasonable to read the definition of "high-
level radioactive waste" in the disjunctive and conclude that the SONGS Reactor Pressure Vessel qualifies as
a "dismantled nuclear reactor component" and, therefore, that it is a "high-level radioactive waste" that is
prohibited. Without going through a detailed analysis, suff,rce it to say that I am not persuaded that a reviewing
Utah court would adopt EnergySolutions argument that the definition should be read in the conjunctive because
no such material likely exists.l Under a plain language approach that adopts a disjunctive reading of the list
in the "high-level radioactive waste" definition, the SONGS Reactor Pressure Vessel would qualify as a "high-
level radioactive waste," regardless of its actual radiation levels, which category of wastes the Utah Legislature
has provided is prohibited from the State of Utah. At the very same time, however, undet the very same Act,
the SONGS Reactor Pressure Vessel is "Class A low-level radioactive waste" that may be received and
rlnmyview,theconjunctiveinterpretationofthedefinitionproposedbyEnergySolutions wouldrenderthe"high-level radioactive
waste" definition 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. This narrow interpretation would lead to an absurd result that could not reasonably have been intended by the
Legislature, in my view. As to the other arguments raised by EnergySolutions, detailed consideration is not required in order to
reach the conclusion presented here,
Disposal of Class A
Nuclear Reactor Components
Page 4
disposed of at the Clive Facility under EnergySolutions'license and the Utah Radiation Control Rules.2 Thus,
the Act is ambiguous as a matter of law.
Most often, a reviewing Utah court interprets statutes based on the plain language, without reliance on
outside interpretative guides. However, legal ambiguity in statutes arises from time to time in judicial cases.
In this matter, the question becomes whether the legislature intended to exclude all dismantled nuclear reactor
components regardless of radioactivity levels, or whether those dismantled nuclear reactor components that
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
geneial rule of inlerpretation in the Utah Code. Title 68, "Statutes," Chapter 3, "Construction," specifically,
Section 6ç-3-2(3),piovides: "Each provision oi and each proceeding under, the Utah Code shall be construed
with a vìew to ,fft"t the objects of the provisíon snd to promote justice." (emphasis added). In addition to
this canon of interpretation, there are several judicial cases dealing with similar situations. Among these, one
fairly recentcasecouldbeappliedhere. InCarterv. (Jniversityof UtahMedicalCenter,2006VI 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). The Supreme Court provided the following analysis:
ff9 In this case, "we are faced with two statutes that purport to covet the same subject'" Jensen
i. mC Hosps., lnc.,944P.2d327,331 (Utah 1997). To determine which statute controls, we
"follow the general rules of statutory construction." Id. When we engage in statutory
construction, "ourprimary goal . . . is to evince'the true intent and purpose of the Legislature
[as expressed through] the plain language of the Act."' Hall v. Dep't of Coru.,2001 UT 34, T
15,24 P.3d 958 (alteration in original) (quoting Jensen v. Intermountain Healthcare, [nc.,679
P.2d,903,906 (Utah 1984). Determining the legislature's intent requires that "we seek to
render all parts [of the statute] 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 purport to cover the same subject. As described
above, the legislature itself states that "[e]ach provision of and each proceeding under, the Utah Code shall be
construed with a view to effect the objects of the provision and to promote justice." Utah Code $ 68-3-2(3).
The 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 pursuant to the License. Considering the Act as a whole, the self-
evident object of the Legislature in defining "high-level waste" appeats to have been to prevent the disposal
of radioactive wastes with federal classifications above Class A low-level radioactive waste because such
2 As stated above, this Memorandum assumes that the SONGS Reactor Pressure Vessel qualif,res as a Class A low-level radioactive
waste under the technical federal defrnition (which is adopted in the Act). The technical 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 qualify as Class A
low-level radioactive waste, it may not be received by Energy,So lutions pursuant to its License, the Act, and the Radiation Control
Rules, for reasons That are completely unrelated to the Act's definition of high-level radioactive waste, the subject of this
Memorandum.
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 dehned by reference to radioactivity levels) are deemed adequately safe for disposal in Utah.
The definition of Class A low-level radioactive waste regulates wastes in relation to their specihc radiation
levels. As a result, I f,rnd this definition to be more specific than the general definition of "high-level"
radioactive wastes that includes (among other things), all dismantled components of nuclear reactors, without
respect to radioactivity levels. In Carter, the Supreme Court teaches that "when we are confronted with two
statutory provisions that conflict, the provision more specific in application governs over the more general
provision," 2006 UT 78, n 9 (intemal quotation marks omitted). This reading of the Act comports with the
arguments raised on page 5 of EnergySolutions' }y'ray 29,2018 letter, first partial paragraph, last sentence, to
the effect that the legislature has shown a clear public purpose to regulate materials based on radioactive levels.
The Class A definition does so with technical specificity, while the high-level definition is not as specihc.
Based on the foregoing analysis, to harmonize the apparent definitional conflict, it is reasonable to
interpret the Act to mean that dismantled 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 interpret the Act as it applies to the SONGS Pressure
Reactor Vessel. In interpreting the Act, the Director's goal should be the same as the Utah Supreme Court's,
namely, "to ascertain the true intent and purpose of the Legislature," Corter,2006UT 78, 1[ l0 (internal
quotation marks omitted). Based on the foregoing analysis, I conclude that it is reasonable to interpret the Act
to allow for the disposal of the SONGS Pressure Reactor Vessel (assuming it qualifies as commercial Class A
low-level radioactive waste) because EnergySolutions has a license to receive and dispose of commercial
Class A low-level radioactive waste and the policy decision has already been made that disposal of commercial
Class A low-level radioactive waste is appropriate at the Clive Facility. Of the two competing dehnitions, the
definition of Class A low-level radioactive waste 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 for
the disposal of Class A low-level radioactive wastes. This goal is best achieved by using a specihc definition
that relies on levels of radiation as compared to a more general definition. This conclusion is also consistent
with the way the former 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 knowledge 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 interpreted. A reviewing Utah court may not defer to an agency's
interpretation of the law. Thus, it is possible that a reviewing Utah court could reasonably reach a different
conclusion than outlined above-that the Act means that any and all dismantled nuclear reactor components
are prohibited from disposal in Utah, regardless of whether or not they qualify as Class A low-level nuclear
waste. It is also possible that the Legislature could disagree with this interpretation and clarify the statute at
any time. As a result, the narrow conclusion presented here should be considered to be provisional.
BFR/srb