October 21, 2020
Via Electronic Mail
SecretaryU.S. Nuclear Regulatory Commission
Washington, DC 20555-0001
ATTN: Rulemakings and Adjudications Staff
VLLWTransferComments.Resource@nrc.gov
Re: Lawyers Committee on Nuclear Policy Comment on Docket ID NRC-2020-0065.
Dear Rulemakings and Adjudications Staff:
The Lawyers Committee on Nuclear Policy (LCNP) opposes the Nuclear Regulatory
Commission’s (NRC) proposed interpretative rule on the transfer of “very low-level waste” toexempt persons for the purpose of disposal.
LCNP, founded in 1981, is a non-profit educational association of lawyers and legal scholars thatengages in research and advocacy in support of the global elimination of nuclear weapons and amore just and peaceful world through respect for domestic and international law.
I.

Summary of Comment

As described further below, LCNP is concerned that the NRC’s proposal would violate not only
the Administrative Procedures Act and other legislation, such as the Atomic Energy Act andNational Environmental Policy Act, but it also contravenes established human rights law asestablished by U.S.-ratified treaties, including the International Covenant on Civil and Political
Rights (ICCPR) and the Convention on the Elimination of All Forms of Racial Discrimination(CERD).
The NRC’s proposal is classified as a reinterpretation of current guidance that only allows for thetransfer of licensed material for disposal to licensed persons. In reality, the proposal functions as
a substantive rulemaking that seeks to reclassify certain radioactive waste from low-level
radioactive waste to “very” low-yield in order to bypass specific requirements for disposal in place
to help ensure the safety of all persons. The arbitrary loosening of restrictions on disposal
mechanisms for this radioactive waste places communities in close proximity to these dump sites
in clear danger of adverse environmental and health effects. Reports consistently demonstrate thatpeople of color, in particular Black and Native-American communities, are significantly more
likely to be affected by landfill and waste dump sites. Given the lack of direction offered by theNRC in its proposal as to which sites would receive the arbitrarily and newly-classified “very lowlevel waste,” it is highly and unacceptably likely that radioactive waste would be disposed of in a1

discriminatory fashion, disproportionately affecting both the environment and health ofcommunities of color. LCNP further asserts that, regardless of the naming convention of such
waste, there is in fact no such thing as safe nuclear waste. This proposed “reinterpretation” is aviolation of procedural, environmental, civil rights, and legislatively-ratified international law.
II.

Violations of Law by this Proposed Rulemaking and LCNP’s Comments

LCNP concurs with the arguments made by the Natural Resources Defense Council, et al.,emphasizing that the NRC’s proposed interpretive rule violates the Administrative Procedure Act,
the Atomic Energy Act (AEA), the Resource Conservation & Recovery Act, and the National
Environmental Policy Act (NEPA).1 In particular, we highlight that the AEA’s definition of “lowlevel radioactive waste2,” in conjunction with NRC statutory and regulatory requirements 3,requires disposal of such low-level radioactive waste (LLRW) in a licensed facility bound by many
specific requirements precisely because this waste is dangerous and harmful. 4 Licensed LLRW
sites must be selected with environmental, developmental, and human population growth in mind
and also have a functioning early-warning system for the release of radionuclides from the site.5
The requirements set forth to establish LLRW disposal sites need to be strengthened and improved,
not downgraded and loosened for some LLRW, as the NRC’s proposed interpretive rule sets outto do.
In addition to the above, the NRC’s proposed rule would offend long-established Executive OrderNo. 12898 and contravene the United States’ binding obligations under the International Covenant
on Civil and Political Rights (ICCPR) and the Convention on the Elimination of All Forms ofRacial Discrimination (CERD).
LCNP argues that the NRC should not implement the proposed “interpretation” and should not
permit “very” LLRW to be disposed of by land burial by exempt persons. Not only is this proposal
reckless, arbitrary, and in clear violation of established statutory and regulatory requirements, but
it would also cause environmental ramifications affecting the health and safety of the ecosystem
and its inhabitants. Disposing of low-level radioactive waste at unlicensed garbage dumps
threatens to adversely affect the surrounding environment and communities, very likelydisproportionately harming communities of color.
A. The proposed rule violates Executive Order 12898 and NEPA, because it fails to consider
environmental justice and the disproportionate impact of disposing of radioactive waste inunlicensed facilities.

1
2Comment ID NRC-2020-0065-0178, https://beta.regulations.gov/comment/NRC-2020-0065-0178
42 U.S.C. § 2021(b)(9)3 See Low-Level Radioactive Waste Policy Act of 1985 (P.L. 99–240), 42 U.S.C. §2021(b) et seq.
4510 C.F.R. §61.50(a)10 C.F.R. §61.53(c)2Executive Order 12898, entitled Federal Actions To Address Environmental Justice in Minority
Populations and Low-Income Populations, stipulates that “each Federal agency shall makeachieving environmental justice part of its mission by identifying and addressing, as appropriate,
disproportionately high and adverse human health or environmental effects of its programs,
policies, and activities on minority populations and low-income populations in the United Statesand its territories and possessions, the District of Columbia, the Commonwealth of Puerto Rico,and the Commonwealth of the Mariana Islands.” 6 The order also establishes an Environmental
Justice Working Group comprised of the heads of all major federal agencies and encourages otheragencies to abide by the rules laid out in the order.
The proposed interpretive rule would violate this Order, because it fails to consider the adverse
effects on human health and the environment of minority and low-income populations and instead
seeks to bypass the limited regulations in place to prompt consideration of such matters.
Furthermore, under the National Environmental Policy Act (NEPA), federal agencies mustconsider environmental justice in their activities. In response to EO 12898, the White House
Council on Environmental Quality (CEQ) issued Environmental Justice; Guidance Under theNational Environmental Policy Act. This guidance includes six principles to guide environmental
justice analyses, looking in particular for disproportionate effects on human health and theenvironment for low-income, minority, and tribal populations. On this guidance, agencies must
consider in an environmental justice analysis whether its action will disproportionately affect thesepopulations and must also consider relevant data concerning “the potential for multiple exposures
or cumulative exposure to human health of environmental hazards…as well as historical patternsof exposure to environmental hazards.”7
The NRC has no environmental justice plan in its proposed reinterpretation of rules relating to
low-level radioactive waste—at least not one that it publicly states. The proposition to reclassify
certain low-level radioactive waste to “very low-level radioactive waste” is in conflict with theobligations established under EO 12898 and environmental justice guidance, as the agency has
made no clear efforts to mitigate the potential health risks the disposal of this waste may cause in
the surrounding populations and communities.
Low-income populations and communities of color will be disproportionately affected by theNRC’s action, because waste disposal facilities and landfills are more frequently located in theirproximity. According to the report Toxic Wastes and Race at Twenty, “people of color are foundto be more concentrated around hazardous waste facilities than previously shown.”8 This report isan update from an original 1987 report on toxic wastes and race. The original report argued thathazardous waste sites, landfills, incinerators, and polluting industries were predominately being
placed in communities inhabited by African Americans, Hispanics, Native Americans, Asians andPacific Islanders, farm workers, and the working poor. This report posited the reason for thisintentional placement was that these groups are particularly vulnerable, “because they areperceived as weak and passive citizens who will not fight back against the poisoning of

6

https://www.archives.gov/files/federal-register/executive-orders/pdf/12898.pdf; https://www.epa.gov/lawsregulations/summary-executive-order-12898-federal-actions-address-environmental-justice7
https://www.epa.gov/sites/production/files/2015-02/documents/ej_guidance_nepa_ceq1297.pdf
8https://www.nrdc.org/sites/default/files/toxic-wastes-and-race-at-twenty-1987-2007.pdf

3their neighborhoods in fear that it may jeopardize jobs and economic survival.”9 Whether or not
the placement of these facilities in these communities is intentional or not, the updated Toxic
Wastes and Race at Twenty demonstrates that the communities surrounding these waste andlandfill facilities are still—and even more so—predominately inhabited by low-income andminority populations.
These communities are already affected by pollutants of landfills, hazardous waste facilities, andother waste dumps—adding any level of radioactive material would not only cause additional
environmental damage but also create a whole host of new adverse health effects. Pollution isalready substantially worse in low-income and minority neighborhoods in the U.S.; adding
radiation to the mix of pollutants these communities experience would constitute a violation oftheir civil and environmental rights. 10 Without adequately addressing these potential health andenvironmental impacts, the NRC’s proposed rule clearly violates Executive Order 12898 and theNational Environmental Policy Act with its related guidance.
B. The proposed rule violates the ICCPR’s right to life, because it fails to preserve theenvironment and shield it from harm and pollution.
The United States is a party to the International Covenant on Civil and Political Rights (ICCPR)
and is thus legally-bound to fulfill the obligations established under this treaty. Article 6 of theICCPR, on the right to life, states that: “every human being has the inherent right to life. This rightshall be protected by law. No one shall be arbitrarily deprived of his life.”11 The Human Rights
Committee, the ICCPR’s treaty body, notes in its General Comment 36, paragraph 62:
Implementation of the obligation to respect and ensure the right to life, and in particular
life with dignity, depends, inter alia, on measures taken by States parties to preserve theenvironment and protect it against harm, pollution and climate change caused by publicand private actors.12A recent report by the Special Rapporteur on the implications for human rights of theenvironmentally sound management and disposal of hazardous substances and wastes highlightsthat the ICCPR’s right to life, right to a life with dignity, and right to bodily integrity provisions
require countries to protect individuals and communities from exposure to hazardous substances,including radioactive waste.13 The Special Rapporteur cites exposure of individuals andcommunities to hazardous waste as a “prima facie failure” of the state’s duty to prevent exposure. 14
Relatedly, the Human Rights Committee has held that states “may be in violation of the rights tolife and a life with dignity when they take insufficient measures or otherwise fail to take measures
to prevent chronic exposure to hazardous substances.”15

9Ibid.

10 https://www.washingtonpost.com/news/wonk/wp/2014/04/15/pollution-is-substantially-worse-in-minority-neighborhoods-across-the-u-s/
11https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx
12
https://tbinternet.ohchr.org/Treaties/CCPR/Shared%20Documents/1_Global/CCPR_C_GC_36_8785_E.pdf
13
A/74/480 para. 7., https://undocs.org/en/A/74/480
14Id. para. 15.
15Id. para. 13.

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The NRC’s proposed rule not only would not “preserve” the environment, but it would actively
harm the environment instead, contributing to further harm and pollution. Deregulating thedisposal of certain radioactive wastes ensures that this waste, no matter how “low-level,” will
infiltrate communities and cause irreparable damage to the environment through the contaminationof water supplies, agriculture, livestock, and people. This exposure to hazardous waste would
implicate clear violations of the rights to life, to a life with dignity, and to bodily integrity, asaffirmed by the Special Rapporteur and Human Rights Committee. While the NRC casually refers
to its “intent” only to dispose of the “least hazardous level of waste” as well as the “intent” todispose of waste away from people and the environment, the NRC makes no effort to describe how
this intent will be enacted, and local communities are set to bear the brunt of any damage of theactual impact of the proposed rule. The ICCPR instead requires that the NRC ensure the protectionof the environment and of the people therein from exposure to nuclear waste that may end up in
nearby landfills upon the implementation of this rule.
C. The proposed rule violates CERD, because the environmental and health impacts of theNRC’s “reinterpretation” will be absorbed by communities of color in the United States.
The Convention on the Elimination of All Forms of Racial Discrimination (CERD), to which theU.S. is a state party, defines “racial discrimination” in article 1 as:Any distinction, exclusion, restriction or preference based on race, colour, descent, or
national or ethnic origin which has the purpose or effect of nullifying or impairing therecognition, enjoyment or exercise, on an equal footing, of human rights and fundamental
freedoms in the political, economic, social, cultural or any other field of public life. 16Emphasis added.
Given the violation of the right to life under the ICCPR, and the consistent studies showing thatwaste sites and landfills are disproportionately established in and near communities of color in theU.S., the NRC’s proposed interpretive rule clearly also violates CERD.
CERD establishes positive obligations on states party to eliminate and prohibit racial
discrimination as related to enjoyment of many rights, including civil, political, economic, social,and cultural rights, including the right to protection by the state against bodily harm. 17
Furthermore, CERD requires that states party review and rescind or nullify any laws or regulations,“which have the effect of creating or perpetuating racial discrimination.” 18 The U.S. historicallyhas dumped highly-toxic waste, including radiological waste, in the land and waters of Indigenous
tribes in breach of CERD.19 In light of the environmental racism on display throughout U.S.
history, the NRC must take particular care to highlight how any reinterpretation of the regulations
surrounding LLRW will account for the protection of Indigenous communities and othercommunities of color most likely to be harmed. By failing to account in detail the process by which
exemptions will be made for certain unlicensed facilities to be able to accept low-yield radioactive
waste, the NRC removes any transparency from the current law—which specifically proscribes
16

https://www.ohchr.org/en/professionalinterest/pages/cerd.aspx
Id. Article 5.
18
Id. Article 2(1)(c).
19
https://tbinternet.ohchr.org/Treaties/CERD/Shared%20Documents/USA/INT_CERD_NGO_USA_17655_E.pdf
175land burial of LLRW in unlicensed facilities 20—all but ensuring that its proposed rule will only
exacerbate the current state of discriminatory affairs when it comes to toxic waste sites in theUnited States.
The U.S. has both an obligation to prevent the discriminatory harm that would result from thedisposal of nuclear waste of any type in or near minority communities, and to nullify any
regulations that perpetuate racial discrimination. If the NRC finalizes this proposed rule, the effect,
as discussed above, would be to disproportionately harm minority communities, and the U.S.
would thus be under obligation to reverse the interpretative rule. The NRC has the obligation underthese provisions not to enact the rule in the first place.
III.

Conclusion

For the aforementioned reasons and in accordance with human rights law, LCNP strongly urges
the NRC to withdraw this proposed interpretive rule and to instead consider regulations that will
safeguard, not harm, human health and the environment from toxic, radioactive waste.

Ariana N. Smith
Executive Director, Lawyers Committee on Nuclear Policy
220 E. 49th St., Ste. 1B
New York, NY 10017(212) 818-1861
arianasmith@lcnp.org

20

10 C.F.R. §61.3

6