State Seal
1802 N. Carson Street, Suite 252
Carson City, Nevada 89701
Telephone: (775) 687-3744 • Fax: (775) 687-5277
Executive Director

November 17, 2000

Bureau of Land Management
U.S. Department of Interior
4765 Vegas Drive
Las Vegas NV 89108

Attention: Anna Wharton



The Nevada Agency for Nuclear Projects, Nuclear Waste Project Office is the agency charged by Nevada Statute to oversee the federal high-level nuclear waste program pursuant to the Nuclear Waste Policy Act of 1982, as amended. These comments on the subject applications constitute the comments of the State of Nevada regarding this matter.

The two referenced applications address activities to take place on approximately 18,700 acres of lands on the Nellis Air Force Range (N-48602), and approximately 51,632 acres of specified public lands (N-47748). Both applications seek seven-year extensions of the right-of-way reservations from the current expiration date of January 6, 2001.

Two aspects of these renewal applications are of particular concern to the State of Nevada. Substantial revisions in these applications have expanded the project purpose and need to extend beyond site characterization activities on these lands, and also include performance confirmation. The applications are also based upon the Department of Energy's statutory 1986 Environmental Assessment for the Yucca Mountain site (1986 EA), a fourteen-year-old document that cannot suffice to support the post-site characterization activities now embraced within the renewal applications. The only evidence of Air Force concurrence is also outdated and needs to be revisited.

As addressed below, the applications in their present form cannot satisfy the approval criteria in BLM's right-of-way regulations. Likewise, the environmental assessment supporting these applications cannot satisfy the requirements of the National Environmental Policy Act (NEPA) and the Nuclear Waste Policy Act (NWPA).

Changing Project Purpose and Need

Since the BLM's public meetings to discuss and accept comment on the Department of Energy's (DOE) applications to extend ROWRs N-47748 and N-48602, both the applications and their corresponding plans of development have been substantially amended. These nearly identical amended applications and plans of development were received at the BLM office on October 5, 2000. The amendments appear as revisions of Section 7 of the applications (Project Description), in the Background sections of the plan of development for each application, and in the Activities Planned sections of each plan of development.

The revisions all involve a change in the need for and purpose of the ROWRs after the site characterization phase closes with the Secretary of Energy's decision on whether or not to recommend to the President that the Yucca Mountain site is suitable for development as a nuclear waste repository. As noted in Section 7 of these applications, DOE anticipates that during the seven year-period requested for right-of-way renewal, "the site characterization phase of the Yucca Mountain Project will be followed by a site recommendation and decision to proceed to licensing or a decision to discontinue work at the site." Once DOE has concluded the site characterization phase, "these activities will be referred to as part of performance confirmation, e.g., studies and activities to confirm the validity of data that has [sic.] already been collected."

The Background section of these applications note that after the site characterization phase at the respective sites, the activities described "will be referred to as part of performance confirmation...." Likewise, the description of activities planned within these applications concludes that "after site recommendation the activities will be directed toward performance confirmation and reclamation of previously disturbed areas."

The distinction between site characterization and performance confirmation bears directly upon BLM's responsibilities in reviewing these renewal applications. The NWPA establishes that the Secretary's decision regarding site recommendation is to be made after completion of site characterization. According to the NWPA, if the decision is to not recommend the site, the Secretary is to inform Congress of the decision and begin restoration of the site. However, if the decision is to recommend the site, continued site activities are referred to as performance confirmation, a required program, different from site characterization under the repository licensing rules of the Nuclear Regulatory Commission (10 CFR Part 60).

As described in the NRC rules, performance confirmation is a program commencing prior to the end of site characterization, and continuing until repository closure, to evaluate the adequacy and accuracy of the information used by the NRC to make its repository licensing decision. Performance confirmation is not simply a continuation of site characterization after the site suitability decision and recommendation has been made by the Secretary of Energy. The requirement for a Performance Confirmation Program is essentially the same in the proposed new NRC repository licensing rules (10 CFR Part 63) that are specific to licensing a Yucca Mountain repository.

Current DOE schedules for activities and decisions regarding the Yucca Mountain site show the Secretary's site recommendation in mid-2001. Site characterization is expected to be completed prior to that time.

Compliance with BLM Right-of-Way Regulations

Consistency and accuracy in project description is a critical component of BLM's regulations governing right-of-way applications. A description of the applicant's proposal is therefore a required element of the right-of-way application, and inconsistency with the purpose for which public lands are managed constitutes grounds for denial of a right-of -way application. 43 C.F.R. 2802.3, 2802.4.

The BLM regulation addressing renewals of right-of-way grants provides in pertinent part that "[w]hen a grant provides that it may be renewed, the authorized officer shall renew the grant so long as the project or facility is still being used for the purposes authorized in the original grant...." 43 C.F.R. 2803.6-5(a) (emphasis added).

With respect to the performance confirmation activities now contemplated in the renewal applications, that criterion has not been met. As originally granted and as renewed, the rights-of-way addressed in these renewal applications have only been approved for the purpose of site characterization activities. As discussed above, performance confirmation is a distinct purpose from site characterization, exceeding the original right-of-way grant and earlier renewals for both the pending applications.

Compliance with NEPA and NWPA

Both renewal applications rely upon the 1986 EA for their supporting environmental documentation. In 1988, the BLM decided to adopt the DOE's statutory 1986 Environmental Assessment (EA) for the Yucca Mountain site, based on its independent review of whether this EA satisfies BLM responsibilities regarding granting these ROWRs under the Federal Land Policy and Management Act of 1986 and NEPA. BLM has stated that it intends to maintain its previous adoption of the EA as adequate to meet its environmental review responsibilities relative to the current ROWR extension applications.

Two substantial difficulties arise from the reliance on the 1986 EA in these renewal applications. The first is that the 1986 EA did not address the full range of activities addressed in the present renewal applications. In documenting its independent review of DOE's 1986 Yucca Mountain EA, BLM stated in its description of Purpose and Need for the ROWRs: "DOE has made application with BLM for use of Federal lands to perform site characterization studies to determine the suitability of the lands as a site for a nuclear waste repository, in accordance with the NWPA of 1982 . . . The ROWR focuses on Yucca Mountain and the range of site characterization activities that must be performed to technically establish the geologic and hydrologic conditions of the area." (Emphasis added.)

Clearly BLM did not contemplate, or evaluate post-site characterization activities in its independent review of the EA, especially in regard to the need and purpose for granting the ROWR. Nor did such characterization enter into its adoption of the EA and Decision Record granting the ROWRs. Moreover, the expansion of the project to include post-site characterization activities directly affects the adequacy of the 1986 EA as the supporting environmental document. Section 112(b) of the NWPA authorizes the preparation of an EA addressing issues of site characterization. By contrast, section 114(f) of NWPA provides that once the Secretary of Energy has made a recommendation to the President to approve a site for a repository, an EIS mush be prepared to satisfy the requirements of NEPA.

Beyond the question of project purpose and need, a second problem arises from the advanced and excessive age of the EA relied upon in the renewal applications. Review of the 1986 EA reveal a host of environmental issues of substantial importance to the State of Nevada and the public it serves. Absent from the renewal applications is any updated information documenting that the environmental analysis of issues addressed in the EA some fourteen years ago is remotely adequate to support the present applications. To satisfy NEPA, an EA must be sufficient to analyze the need for the proposal, as well as the environmental impacts of the proposed action and alternatives. 40 C.F.R. 1508.9. The EA, prepared fourteen years ago and approved by BLM twelve years ago, does not address the need for the project as redefined in the new renewal applications, and does not provide a timely and complete assessment of the proposed action and alternatives.

Concurrence of Air Force

The application addressing activities to take place on the Nellis Air Force Range (N-48602) also lacks sufficient evidence of timely concurrence by the Air Force, a required condition of any renewal. Conditions of approval attached to the previous renewal of this right-of-way reservation noted that Air Force concurrence is necessarily "temporary in nature" and limited in its scope of purposes. However, there is no indication that the Air Force has carefully considered and made a timely concurrence in the application now under review. Reuse of the Air Force letter to DOE dated June 9, 1992 cannot suffice, because that letter is clearly referenced to the previous application for renewal. In addition to its excessive age, the letter does not address the project that is the subject of the present application, with the changes in purpose and need described above.

Conclusions and Recommendations

BLM should reject the renewal applications in their present form for failure to comply with its right-of-way regulation addressing renewal applications. That regulation does not allow the inclusion of post-site characterization activities outside the purposes of the original grant and earlier renewal of the right-of-way reservations.

BLM must also consider the adequacy of environmental review supporting these applications in accordance with NEPA and NWPA. In the event that the Secretary finds the site unsuitable for repository development after completion of site characterization, or continues site characterization throughout the seven years of requested ROWR extension, the inconsistencies with the requirements of NEPA would be of no effect, since the current ROWRs are for site characterization and necessary reclamation.

However, if as indicated on the applications, site characterization will be completed sometime within the seven years of ROWR extension requested, and the recommendation is to proceed with repository development, BLM's NEPA compliance must be found inadequate. As noted above, the environmental assessment supporting the present applications is seriously outdated and does not accurately define and evaluate the need for and purpose of the project for which the ROWR has been requested. If BLM intends to grant the ROWRs as requested, this non-compliance with the requirements of NEPA must be remedied with full procedural compliance with the Act. In addition, timely concurrence must be obtained from the Air Force for the application under review, which in turn requires Air Force reliance on DOE's NEPA compliance.


Robert R. Loux
Executive Director

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