May 15, 2001
Lake Barrett, Acting Director
Office of Civilian Radioactive Waste Management
Department of Energy
Washington, DC 20585
Dear Mr. Barrett:
This letter responds to your letter dated May 4, 2001, sent to Governor Guinn as well as to Governors and Legislatures in other states. The letter stated that that the Department of Energy has initiated the public comment period on the Secretary of Energy's consideration of a possible recommendation of the Yucca Mountain site in Nevada to the President for development as a spent fuel and high-level nuclear waste geologic repository. In that letter you indicated that sometime this summer the Department will announce the dates, locations and times for public hearings on the possible recommendation, and will also announce the date for the end of the public comment period. As discussed below, requiring public comment and hearings to take place now-prior to release of the Final EIS and publication of the final regulations governing the site-would fail to satisfy the requirements of the Nuclear Waste Policy Act (NWPA) and other applicable federal laws.
The Department's accompanying proposed federal register notice ("Yucca Mountain Science and Engineering Report; Site Recommendation Consideration and Request for Comment") describes, in "B. Site Recommendation Process", its view of the statutory requirements contained for this process in section 114(a)(1) of the Nuclear Waste Policy Act (NWPA). These requirements include conducting public hearings to inform the residents of the area under consideration, and receiving their comments regarding the possible recommendation of the site.
In section "C. Information for the Public Comment Process" on page 9, the Department describes three sets of regulations applicable to the site that have not proceeded beyond the proposal stage. These regulations, respectively, are the proposed Environmental Protection Agency public health and safety standards for a spent nuclear fuel and high-level waste repository at Yucca Mountain; the Nuclear Regulatory Commission's proposed licensing requirements for that repository; and the Department's proposed site suitability guidelines. Despite the Department's recognition that these regulations are not final, the proposed notice cryptically concludes that "[t]he currently proposed regulations provide a reasonable basis for the consideration of a possible site recommendation."
In our view, this conclusion is neither reasonable nor in accordance with the requirements of the NWPA and other laws. This conclusion puts the residents of the area in the compromised position of receiving information about the Secretarial consideration of the site and providing comments on the same, without ever being informed of the final regulatory framework governing that consideration. In addition, it puts the Secretary in the position of making an arbitrary decision about the consideration of the site due to the lack of radiation protection regulations from the Environmental Protection Agency, and the lack of site suitability guidelines from the Department for the Yucca Mountain site.
Prematurely calling for comments and holding hearings under these preliminary circumstances would fail to honor the Secretary's duties under NWPA section 114(a) to inform the residents of the area and receive their comments; and base any site recommendation on the full record of information prescribed in the statute. Doing so would also compromise wellestablished norms of administrative procedure. While the Department apparently assumes that that all regulations will be finalized as proposed, limiting public comment on a possible Secretarial action to a time when it is based only upon draft rules would not satisfy the requirements of the federal Administrative Procedure Act.
The Department has also impermissibly deferred the analysis of potential qualifying and disqualifying conditions from the site suitability guidelines to the environmental impact statement, avoiding timely analysis of such critical issues as transportation and socio-economics, and thereby violating the requirements of section 112(a) of the NWPA. The final environmental impact statement for the Yucca Mountain site, along with the final versions of applicable regulatory standards (Environmental Protection Agency standards, Nuclear Regulatory Commission licensing requirements, and Department site suitability guidelines) must be in place in order for the public and others to understand the basis for the Secretarial consideration, and for public hearings to take place. Without the final EIS and these key elements of the regulatory scheme, the Department is asking the public to comment upon an inchoate proposal supported only by proposed regulations and preliminary environmental review.
For the foregoing reasons, this office requests that the public hearings and public comment period required by section 114(a)(1) of the NWPA, as amended, be postponed until the Department has issued a final environmental impact statement for the Yucca Mountain site; and until applicable regulations (including the health and safety standards proposed by the Environmental Protection Agency for the Yucca Mountain site, the Nuclear Regulatory Commission's proposed licensing requirements for that repository, and the Department's proposed site suitability guidelines required by section 112(a) of the Act) have been issued in final form.
I look forward to your prompt and specific response to this request. Please confirm that your response reflects the Department's final determination on how it will proceed with respect to the hearings, comments and timing of the release of the final environmental impact statement. If you have any questions, please do not hesitate to contact me.
Robert R. Loux
Nevada Congressional Delegation
Commission on Nuclear Projects
Affected Units of Local Government