April 25, 2001
Kathleen Carlson, Manager
Nevada Operations Office
U.S. Department of Energy
P.O. Box 98518
Las Vegas, Nevada 89193-8518
Re: Acceptance of Low-Level Radioactive Waste from the West Valley Demonstration Project (WVDP), for Disposal at the Nevada Test Site (NTS)
Dear Ms. Carlson:
On January 25th of this year the Nevada Division of Environmental Protection (NDEP) advised Mr. Carl Gertz of the Nevada Operations Office about the State of Nevada's objection to a proposal by the Department of Energy to ship Low-Level Radioactive Waste (LLW) from the West Valley Demonstration Project (WVDP) in New York State, to the Nevada Test Site (NTS) for disposal 1. The objection was based on the State's position that the waste in question is commercial in origin and thus inappropriate for disposal at a defense facility like the NTS. As you may know, with closure of the Beatty commercial LLW site in 1992, the State of Nevada concluded its obligation under the commercial LLW compact system for disposal of commercial LLW (per P.L. 99-240). And yet it now appears that the Department of Energy (DOE) is considering the disposal of commercial LLW at the NTS.
As the Governor's designee for the Nuclear Regulatory Commission's (NRC) Agreement State program, I must concur with NDEP officials that NTS is clearly not a legally appropriate site for the disposal of commercial LLW; and this position applies regardless of the ownership and/or control of such wastes, (i.e., owned or controlled by a federal, state, or local agency, and/or a non-government entity).
We do recognize that the Low Level Radioactive Waste Policy Amendments Act (LLRWPA) gave states responsibility for developing commercial LLW disposal sites through a system of state compacts. However, and without regard to the unfulfill realization of the LLW Policy Act, with the closure of Beatty, Nevada has concluded its responsibly under the compact system. Hence, its is not only inappropriate but an affront to the residents of Nevada that DOE would ever consider the NTS for use as a commercial LLW disposal site.
It is also worth mentioning that additional commercial LLW streams could be acquired by DOE. We note the statutory authority is in place that gives DOE authorization to accept such waste per section 151(b) and (c) of the Nuclear Waste Policy Act. Likewise, there are other commercial LLW streams within DOE as well as within the Department of Defense (DoD) that are regulated by NRC and/or state licencing authorities. These commercial waste streams could well be "pawned-off" on DOE as defense LLW, (e.g., LLW from the Army Corps of Engineer's Formerly Utilized Sites Remedial Action Program; DoD LLW in the form of expended depleted uranium ordnance and associated contaminated targets on military ranges, etc.).
In a related matter, Nevada officials are concerned about attempts by DOE to reclassify LLW from commercial to defense, for purposes of disposal at a defense site like the NTS. We believe such action would only reinforce the department's ill-fated practice of self regulation allowed under the Atomic Energy Act (AEA). As you may be aware states are opposed to self regulation under AEA and have consistently supported external regulatory authority over DOE LLW management and disposal operations.(a)
For your information I have attached a letter and accompanying position paper prepared by DOE.2 The attachment is DOE's response to the January 25th letter by NDEP. Please be aware that Nevada officials are unconvinced by this position paper. As such, we are once again requesting formal legal clarification as to origin of the WVDP LLW waste streams being considered for disposal at the NTS.3 It is our position that the waste streams in question are commercial in origin and thus should be disposed of at a licensed (non-defense) LLW disposal site. We are taking this position notwithstanding prior and/or pending analysis per DOE implementing procedures (10CFR 1021) under the National Environmental Policy Act (e.g. DOE's Waste Management Programmatic Environmental Impacts Record of Decision [6450-01-P] dated 02/18/2000).
Given these considerations, I am requesting a formal legal interpretation on the points referenced above and I am respectfully requesting that DOE implement a moratorium on any shipments of LLW from the West Valley site to the NTS, pending resolution of these matters.
Robert R. Loux
1 January 25, 2001 letter from Paul Liebendorfer - Nevada NDEP to Carl Gertz, DOE/NV - see on the web at: http://ndep.state.nv.us/boff/ndep26.htm
2 April 3, 2001 letter from Carl P. Gertz, DOE/NV to Paul Liebendorfer NDEP. The letter includes an attache paper entitled "Disposal of West Valley Demonstration Project Low-Level Waste at a Department of Energy Disposal Site.
3 See DOE letter dated January 19, 2001 to Ahmand M. Al-Daouk, DOE West Valley Demonstration Project, West Valley, NV References
(a) National Governor Association -- 08/24/2000, America's Nuclear Weapons Complex: on the web at: http://www.nga.org/cda/files/NUCLEARCLEANUPGUIDE.pdf