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State of Nevada Comments, Final EIS for the Nevada Test Site (NTS)

State of Nevada's Comments on the Final Environmental Impact Statement for the Nevada Test Site and Off-Site Locations in the State of Nevada (DOE/EIS-0243)

Submitted November 15, 1996


This page contains the State of Nevada's comments on the Final Environmental Impact Statement (EIS) for the Nevada Test Site (NTS). The NTS is operated by the U.S. Department of Energy, Nevada Operations Office (DOE/NV). The NTS was used by the DOE to test nuclear weapons. Between 1951 and 1992, just over 900 nuclear tests were conducted at the site (i.e., one hundred above ground [atmospheric] and 804 underground). The NTS is located in southern Nevada about 65 miles northwest of Las Vegas.

For More Information Contact -- State of Nevada, Nuclear Waste Projects Office, Capitol Complex, Carson City NV 89710 (702-687-3744, FAX 702-687-5277):

November 15, 1996

Carol M. Borgstrom, Director
Office of NEPA Policy and Assistance
U.S. Department of Energy
Washington, D.C. 20585

Re: State of Nevada's Comments on the Final Environmental Impact Statement for the Nevada Test Site and Off-Site Locations in the State of Nevada (DOE/EIS-0243)

Dear Ms. Borgstrom:

Thank you for providing the State of Nevada the opportunity to comment on the Final Environmental Impact Statement for the Nevada Test Site (NTS) and Off-Site Locations. As you know, the State of Nevada submitted extensive comments on the Notice of Intent, the Implementation Plan, and the Draft Environmental Impact Statement (EIS) for the NTS. We also conducted a detailed review of the draft Framework for a Resource Management Plan (RMP) contained in the draft EIS.

With the exception of several outstanding issues discussed below and pending future commitments in the NTS EIS Record of Decision and Mitigation Action Plan, we believe that the Final EIS does contain substantive changes and responds to many of the comments submitted by State agencies and others involved in the EIS review process. We also acknowledge that DOE has revised the document to meet certain basic standards for environmental impact analysis at the site-wide level.1

Detailed Review

The following discussion assesses several major issues we believe were not adequately addressed in the Final EIS or in the EIS comment response document. Resolution of these issues -- through specific commitments in the EIS Record of Decision(ROD) and/or in the EIS Mitigation Action Plan --must be addressed if DOE is to successfully complete the National Environmental Policy Act (NEPA) process for the Nevada Test Site. As part of the State's ongoing effort to support sound federal decision making concerning the use of withdrawn public lands evaluated through NEPA, this detailed review contains specific recommendations for each issue evaluated. The recommendations are intended to guide DOE in the preparation of a ROD and Mitigation Action Plan for the NTS EIS.

Outstanding Issues:

Assessment of the NTS Land Withdrawal and its relationship to the EIS No Action Alternative;

DOE compliance with "programmatic" decisions concerning the disposal of off- site generated low-level and mixed low-level radioactive waste at NTS as provided for under National Environmental Policy Act regulations {CEQ 1502.4, 1508.18(b)(3), and 1508.28} and DOE implementing regulations {10 CFR Part 1021};

Compliance with the DOE disposal site(s) performance assessment process, as per DOE Order 5820.2A;

Implementation of the NTS Resource Management Plan including setting cleanup standards for alternative land-uses; and,

NEPA analysis for Special Case Waste (SCW), waste classified as Greater- Than-Class-C (GTCC), waste requiring Greater Confinement Disposal and/or waste considered inappropriate for shallow land burial.

Assessment of the NTS Land Withdrawal and its relationship to the EIS No Action Alternative:

The State of Nevada has long argued that the NTS was notestablished to serve as a waste disposal site for off-site generated defense wastes, and the notion that such an action was assessed and concurred with by the Bureau of Land Management (BLM) as part of the 1977 NTS EIS process2 is simply not true. While local BLM staff did concur with the continuation of the NTS withdrawal for a period of 100 years, this recommendation was based on the continuation of the primary land use at the site, and that use was clearly depicted in the 1983 withdrawal review as "research, development, and testing of nuclear weapons."3

Also, the NTS EIS comment response document suggests that in BLM's 1983 withdrawal review, a reference (by BLM) referring the reader to the Final EIS (ERDA-1977) for "a more detailed explanation of activities and projects" (conducted by DOE at NTS) constitutes approval (as interpreted by DOE) for disposal of off-site generated waste at NTS. This interpretation is just that, an interpretation on the part of DOE, and it is not representative of the recommendations contained in the 1983 withdrawal review. Moreover, these "conclusions" about BLM's so-called approval of or concurrence with DOE's waste disposal activities at the NTS are of no consequence, given the Department of Interior's (DOI) detailed comments submitted on the current NTS EIS. In those comments, DOI officials states that "at the time the [BLM] 1983 withdrawal review was conducted, weapons testing was the primary use [at the site]. However, this review was never [emphasis added] forwarded to the Secretary of the Interior and to Congress in accordance with Section 204(1) of the Federal Land Policy and Management Act (FLPMA) of 1976." In other words, DOI only initiated, rather than completed, the withdrawal review process for the NTS as required by FLPMA. DOI officials specifically called attention to this point in their comments. They said that "no review of any [NTS] withdrawal, regardless of agency, has been forwarded to Congress as mandated."

Hence, and by DOI's own admission, concurrence to use the NTS for any other activity outside of research, development, and testing of nuclear weapons was never formally considered, as required by law. While it is true that a limited on-site waste disposal program began at the NTS in the early 1960s to address cleanup of the contaminated debris left over from atmospheric testing and other on-site research and development programs, the site was never assessed to support a major federal action with potentially significant environmental impacts,4 such as the transportation and disposal of thousands of cubic feet of low-level waste generated at other DOE sites across the nation.

Likewise, the 1977 Energy Research and Development Administration's EIS never contemplated or assessed the environmental consequences of such a program, and because the current EIS for the NTS is a Side-Wide document with limited project specific analysis,5 it fails to provide a clearly focused, program-specific analysis of the potential environmental consequences of past, present, and planned waste disposal operations at the site. This yet-to-be completed analysis is only proposed to be accomplished in the near-term (presumably after the Record of Decision for the NTS EIS is issued) through the completion of DOE's self-regulated, perpetual, and largely confused Performance Assessment (PA) process.6

Accordingly, and as previously documented in comments presented during the EIS process, State officials do not concur that DOE has the authority under the existing withdrawal, nor has completed the required analysis under NEPA, to support a major waste disposal program at the NTS. The disposal of radioactive waste at NTS from off-site generators cannot be considered a continuation of current or past activities as depicted by DOE in the EIS, and thus it cannot be characterized as part of the No Action Alternative. The disposal of low-level waste was never considered a stipulated land use under the existing Public Land Orders for the site and/or evaluated by DOI under Section 204(1) of FLPMA, nor evaluated in detail as a major federal action as required under Section 102(c) of NEPA.


DOE compliance with "programmatic" decisions concerning the disposal of off-site generated low-level and mixed low-level radioactive waste at NTS as provide for under National Environmental Policy Act regulations:

Council on Environmental Quality regulations {CEQ 1502.4, 1508.18(b)(3), and 1508.28} and DOE implementing regulations {10 CFR Part 1021} provide clear direction for "tiering" broad program decisions, such as the identification of sites for treatment and disposal facilities for low-level, mixed low-level, and other DOE radioactive waste types. These regulations encourage DOE officials to "tier" from broader programmatic EIS documents to those with a narrower scope in order to focus on the issues ready for decisions.7

As DOE officials are aware, a NEPA process has been implemented to identify and select DOE sites for various waste management activities such as disposal of low- level and mixed low-level radioactive waste. In August 1995, DOE issued the Draft Waste Management Programmatic Environmental Impact Statement (Waste Management PEIS - DOE/EIS-0200-D). This PEIS provided information and analyses to assist DOE in selecting sites that have existing waste management facilities that could be modified and/or selecting sites where new facilities could be constructed for the treatment and disposal of low-level and mixed low-level waste.8 While DOE has yet to issue the Final PEIS or identify a preferred alternative for either low-level or mixed low-level waste treatment or disposal, the Nevada Test Site is identified in the document as an alternative for regional or centralized disposal of these waste types.

Given this situation, the NTS Final EIS simply states that "the final Waste Management Programmatic EIS, which is in preparation, will more clearly define the role of the NTS within the DOE Waste Management Complex." 9 In Appendix A of the EIS, a similar statement notes that "the Waste Management Program under Alternative 3 [at NTS] would include the activities described under Alternative 1, with an increase in scope to reflect alternatives considered in the Draft Waste Management Programmatic Environmental Impact Statement (emphasis added).10

Unfortunately, neither of these statements represents a commitment to follow the CEQ regulations that encourage DOE officials to tier from broader programmatic EIS documents to those with a narrower scope. It should be noted that a commitment was made in the Waste Management PEIS by DOE to follow these tiering requirements for siting waste management facilities across the DOE complex.11

In terms of mixed waste, the State's comments submitted on the Draft NTS EIS specifically stated that "completion of a Part B permit for mixed low-level waste disposal at the NTS will not be considered in advance of a national disposal siting decision for mixed waste as per DOE's Waste Management PEIS." We also stated that "a completed performance assessment for the Area 5 disposal site must be in place before any action is taken on the Part B Permit for new unites ,12 and that these conditions should be stipulated in the text of the Final EIS." 13 No substantive response to this comment is provided in the NTS EIS comment response document.


Compliance with DOE disposal site(s) performance assessment process as per DOE Order 5820.2A:

The State's comments on the Draft NTS EIS noted that "before any more waste is disposed at either the Area 3 or Area 5 site, DOE mustcomplete a performance assessment for each site [and] only then would DOE be in compliance with its own waste management orders."14 In response to this comment, DOE stated that "there is no requirement that waste disposal cease until a performance assessment is prepared."15 This response is self-serving and typifies DOE's "old culture thinking." Only a perverse interpretation of DOE's Waste Management Order (5820.2A) could produce this answer.

DOE has, in fact, publicly recognized that its performance assessment process for disposal facilities throughout the DOE complex may not consistently address all considerations important to demonstrating compliance with the performance objectives that are detailed in the Waste Management Order. Likewise, DOE has admitted that the approval process for performance assessments is cumbersome and "results in a lack of confidence regarding long-term protectiveness."16

As discussed elsewhere in these comments, DOE has never been in compliance with its own Waste Management Order for either the Area 5 or the Area 3 disposal site. In fact, a strict reading of the Order {DOE Order 5820.2A, Chapter III 3.I(8)(b)} clearly demonstrates that DOE has not completed a detailed site-specific NEPA analysis {as per Section 102 (2)(c) of NEPA} for either of the disposal sites on the NTS. The State has always contended that disposing of millions of cubic feet of off-site generated low-level radioactive waste constitutes a major federal action under NEPA. In fact, if a NEPA analysis had been initiated for this action, it would have required a discussion of alternatives (as per 40 CFR 1502.149) and should have taken into consideration the Nuclear Regulatory Commission's disposal site suitability requirements defined under 10 CFR 61.50. However, the low-level disposal sites on the NTS were sited, constructed, operated, and then substantially expanded without any site-specific NEPA analysis, even after such an analysis was specifically required by the agency's own Waste Management Order.


Implementation of the NTS Resource Management Plan and Cleanup Standards at Off-site Locations:

The State of Nevada will continue to focus on the successful implementation of the Resource Management Plan(RMP) process outlined in Volume II of the NTS EIS. In the State's opening comments on the Draft EIS, we specifically praised DOE for proposing the development of a RMP for managing the natural resources and physical infrastructure at the NTS.

State officials firmly believe the RMP process is needed to address land use planning and other issues that must be the subject of pre-decisional input and negotiation among several DOE entities, federal and state agencies, local governments, Native Americans, and others. We are concerned, moreover, that the RMP process not be ignored or otherwise diminished, and that it remain a central focus for achieving the principles of ecosystem management and sustainable development under the collective review of truly affected parties. In addition to using the process for managing the facilities and national resources to ensure long-term diversity and productivity of the natural ecosystems, State officials also expect DOE to use the process to evaluate the effects of future proposed facilities and activities at NTS. To achieve this, the process must remain flexible and should set a standard for other federal agencies to follow regarding RMP initiatives in the region, (e.g., the Bureau of Land Management, the United States Air Force, the U.S. Forest Service, etc.).

To ensure that the promises represented by the RMP framework are realized, DOE must state in the ROD for the EIS that the RMP process will be carried out. Such actions must be consistent with the DOE Land and Facility Use Policy17 as well as the goals, resource issues, and implementation steps contained in the RMP framework document. When implemented, the RMP must include baseline resource information that can be used to address environmental risks and contamination at the NTS, setting priorities for resolution of such problems, evaluating alternative solutions, and fostering a role for stakeholders in the process. This can be achieved for both existing and future uses of land resources and facilities at NTS by a strong commitment in the ROD to implement the RMP process.

With regard to environmental risk and contamination issues, in August of this year, State regulatory and policy representatives met with DOE Assistant Secretary Alvin Alm. In that meeting, the State specifically proposed that the RMP become the "driving process" to address cleanup standards at the NTS (i.e., to address the questions of "how clean is clean for what use").18 This proposal represents a significant commitment by the State of Nevada, as it will enhance the recently signed Federal Facility Agreement and Consent Order19 (the NTS Cleanup Agreement).

In addition, the RMP process for the NTS clearly presents DOE with a justifiable, convenient, and expedient means for initiating a program that coalesces all the actors, issues, and programs relative to the NTS to address existing and future uses of the site on the basis of sound knowledge of environmental risks and sustainable management of all resources. To facilitate this and to foster a shared understanding of issues involving environmental protection and future land uses at the site, DOE must commit in the EIS/ROD to creating a stakeholder advisory group to support the NTS RMP process.

Because of insufficient information on natural resources and ecosystems at the NTS,20 however, there is no way DOE can implement applied ecosystem management following from the recently completed site-wide EIS. Yet this can be resolved by implementing the RMP process; in fact, knowledge of environmental conditions at the NTS that can be provided through the RMP process must be developed to:

Overall, the baseline environmental resource information promised by the RMP is the key for providing an integrated process for environmental protection, comprehensive land use planning, and environmental risk management at the NTS. State officials are keenly aware of potential conflicts between the RMP process and emerging economic development ventures proposed for NTS by the NTS Community Reuse Organization. However, if correctly implemented, the RMP process can be used to address economic development issues in the context of land-use planning, environmental, and regulatory processes such as NEPA compliance21 and regulatory commitments made under the State/DOE cleanup agreement. To address these potential conflicts, State officials contend that DOE must bring affected entities together to address shared decision making to achieve ecosystem management and sustainable development of both natural and man-made resources at the NTS.


Making such a commitment will provide the foundation for an integrated approach to environmental protection and land and facility use planning. In addition, such a commitment will support the evaluation of ecological, economic, social, and cultural factors in the identification of land use options, including the identification of DOE mission needs. Such actions would also be consistent with the principles of sustainable development and applied ecosystem management adopted by DOE.

Finally, the RMP process is needed to identify actions for expanding the NTS withdrawal to address off-site groundwater contamination.

Special Case Waste, Waste Classified as Greater-Than-Class-C and/or Waste requiring Greater Confinement Disposal:

Disposal of DOE generated, owned, or controlled radioactive waste defined as high specific activity low-level waste requiring Greater Confinement Disposal (GCD), including low-level waste that is determined inappropriate for shallow land burial must be subject to a programmatic analysis under DOE regulations 10 CFR 1021. Such an analysis, moreover, follows from recommendations and commitments made in DOE's Waste Management PEIS and in a DOE Federal Register Notice published on Monday, March 13, 1995. The Notice outlined strategies for the management and disposal of Greater-Than-Class-C low- level waste (GCC LWW) along with other DOE wastes described as Special Case Waste (SCW). As defined in the Notice, the term Special Case Waste "denotes DOE waste having characteristics similar to those of GTCC LLW, and generally lacking firm disposal plans." The State understands that the volume of SCW alone could exceed 2.6 million cubic feet.23

Although the State of Nevada has made it clear that DOE must pursue a programmatic analysis across the DOE complex to address the disposition of these waste types "based on relative waste hazards,"24 DOE has decided to ignore these comments by proposing to continue to develop "greater confinement disposal technology" as well as greater confinement disposal units for the disposal of high specific activity low-level waste at NTS. Moreover, the Final NTS EIS clearly states that DOE will provide disposal capability to approved off-site waste generators for waste streams determined "inappropriate for shallow land burial." 25

Meanwhile, and without regard to NEPA compliance concerning the performance assessment process detailed in DOE Order 5820 2A, DOE now admits that significant amounts of radioactive waste (i.e., TRU waste buried at Area 5 in Trench TO4C) have been disposed of at NTS that do not meet the required performance objectives set forth in the referenced order. To address this issue, DOE plans to conduct additional performance reviews to determine whether the waste can be left in place or retrieved and disposed of in a system that meets existing performance objectives. Given this situation and other difficulties with the performance assessment process,26 DOE/Nevada still intends to pursue disposal of other long-lived and high specific activity wastes at the NTS, disregarding the programmatic or site-specific analyses required by the National Environmental Policy Act, as well as not complying with the agency's own internal orders. State officials find this action unacceptable.


Again, thank you for providing the State of Nevada the opportunity to comment on the Final EIS for the Nevada Test Site and Off-Site Locations. We hope you find our comments useful in determining the content and direction of the Record of Decision for this EIS. If you have any questions about these comments, please contact me, John Walker (NWPO) at (702) 687-3744, or Paul Liebendorfer (NDEP) (702) 687- 5872 (ext. 3039).

Julie Butler, Coordinator
State Clearinghouse DOA/SPOC

This Letter was copied to the following individuals and organizations


1. See 10 CFR 1021.330(c)

2. See Final EIS for the NTS, Volume 3, Part A, page 1-4, paragraph 2.

3. See Withdrawal Review of the Nevada Test Site, U.S. Bureau of Land Management, Las Vegas District Office, October 10, 1983, Section VII. Conclusions/Recommendations, paragraph two.

4. See National Environmental Policy Act, Section 102(2)(c).

5. Project-specific "tiered" National Environmental Policy Act documentation contained in the NTS EIS is limited to continued and potential expanded use of the Big Explosive Experimental Facility and certain classified activities conducted at the Lyner Complex only. The EIS did not identify waste disposal as a project-specific activity.

6. See NTS EIS, Section 2.5.6

7. See 40 CFR 1502.20 and 10 CFR 1021.210.

8. See Draft Waste Management PEIS, U.S. Dept. of Energy (DOE/EIS-0200-D), pages 1-23

9.See NTS Final EIS, page 1-5

10. See NTS Final EIS, page A-26

11. See Draft Waste Management PEIS, U.S. Dept. of Energy (DOE/EIS-0200-D), page 1-7

12. The permitting process for existing unites (on an interim status basis i.e., Pit 3) will continue.

13. See State comment number 055

14. See State Comment Summary, Performance Assessment.

15. See NTS Final EIS, page 3SG-5

16. U.S. Department of Energy, May 1996: Final Report Complex-Wide Review of DOE's Low-Level Waste Management ES&H Vulnerabilities (DOE/EM-0280), page ix.

17. U.S. Department of Energy, December 21,1994. Memorandum for Secretarial Officers and Operations Office Managers. Subject: Land and Facility Use Policy.

18. It should be noted here, State officials contend that when implemented the RMP process must compliment, as opposed to restrict, DOE's ongoing cleanup program at the NTS.

19. Federal Facility Agreement and Consent Order (FFACO) -- Lead State agency is the Department of Conservation and Natural Resources, Division of Environmental Protection, Bureau of Federal Facilities.

20. For example, see EIS Volume 3, Comment Code Federal Agency 3-50 and 3-52, pages 3FA-12&13.

21. See 10 CFR 1021.330(d)

22. In this context, the Stakeholder advisory group should constitute a working group composed of federal officials (BLM, USFWS, DNA, DOD, etc.), State officials (designated by the Governor), representatives from affected county governments, Native Americans, and other organizations that may have responsibility for, authority over, or inherent rights to the lands encompassing the NTS. Such a working group would interface with the NTS CAB, BLM's Resource Advisory Council,l and other entities as might be appropriate.

23. U.S. Department of Energy, August 1995. Draft Waste Management PEIS, (DOE/EIS-0200-D), pages 1-16.

24. State Comment Letter, NWPO, April 28, 1995. RE: Notice of Inquiry, Strategy for Management and Disposal of Greater-Than-Class-C Low-Level Radioactive Waste (Federal Register Notice Vol. 60. No. 48/Monday, March 13, 1995). The State's letter was sent to Mr. Terry Plumer, DOE Office of Environmental Management.

25. See Final EIS, Volume 1, Section, page 3-12.

26. DOE compliance with Defense Nuclear Safety Board Recommendation 94-2.

27. As per 42 USC 4231 et seq; 40 CFR 1500-1508; and CFR 10210 including requirements contained under DOE Order 5820.2A, Chapter III 3.I (8)(b).

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