||March 12, 1998
||Department of Guidance for Discussion with State of Nevada on Low-Level Waste Disposal Operations at the Nevada Test Site.
||Carl P. Gertz, Assistant Manager for Environmental Management, Nevada Operations Office
This memorandum provides guidance in response to your November 21, 1997 letter for discussions with the State of Nevada on the proposed joint Federal/State Oversight Agreement for the Department of Energy's (DOE) low-level waste disposal operations at the Nevada Test Site.
In his June 11, and August 7, 1997 response to Nevada Governor Bob Miller's October 3, 1996, and June 30, 1997 letters, former Assistant Secretary for environmental Management Alvin Alm stated that DOE is open to considering ways for the State to assist DOE in evaluating the disposal of the Department's low-level waste within State boundaries. The State of Nevada has indicated its willingness to assist DOE in DOE's low-level waste disposal operations at the Nevada Test Site. Therefore, consistent with both parties'
desires, DOE should seek a meaningful partnership with the State for the Department's low-level waste disposal operations at the Nevada Test Site.
In developing this partnership, however, DOE cannot accept the suggestions of the State of Nevada that DOE delegate its regulatory authority to Nevada. DOE has no legal authority to delegate its regulatory authority to another entity such as a State. In particular, there is no provision for DOE comparable to section 274 of the Atomic Energy Act which permits the Nuclear Regulatory Commission (NRC) to enter into an agreement with a State providing for the discontinuance of some of the NRC's regulatory authority in favor of regulation by the State.
Notwithstanding this legal constraint, the Nevada Operations office should explore with the State of Nevada the possible elements of a useful and creative "partnership" that would support the Federal low-level waste disposal mission at the Nevada Test Site. In such a partnership, the State could (1) provide advice in the area of environment, safety and health for the operation of the radioactive waste disposal facilities, and (2) verify on a routine basis, as applicable, that the Federal mission is being accomplished adequately in the area of environment, safety and health. This partnership might be similar to the oversight role secured by the State in the 1995 Federal Facility Agreement and Consent Order, under which activities relating to radioactive materials are not regulated by the State, but the State nonetheless is entitled to receive documents and to comment on DOE's proposed actions. Another approach might be to create for the State a right to give Nevada Operations Office advice, similar to the roles of the Defense Nuclear Facilities Safety Board (Board), wherein the State may provide recommendations to DOE without regulating the Department's activities.
Under such an arrangement, DOE could agree to formally respond to the State's recommendations, including a description of how the State's recommendations were implemented or an explanation of why they were not accepted.
Accordingly, we suggest that the Nevada Operations Office consider working with the State of Nevada to amend the existing Agreement-in-Principle to reflect the shared oversight concept with regard to Nevada Test Site low-level waste disposal operations. Changes to the existing Agreement-in-Principle could include the following:
Routine (i.e., day-to-day or periodic) on-site technical evaluations and investigations by the State of the Nevada Test Site's low-level waste disposal operations to assist DOE in identifying potential environmental, safety and health related violations.
Technical evaluations by the State based on its attendance at audits of DOE waste generator sites, and the State's review of the Nevada Test Site's waste acceptance criteria and the DOE performance assessments for Nevada Test Site's Low-Level waste disposal facilities.
Provision for these technical evaluations and investigations may be used by DOE in carrying out its environmental, safety and health responsibilities. In particular, they may be used in support of DOE in carrying out of its responsibilities under the Atomic Energy Act for issuing notices of violations of DOE nuclear safety requirements, and imposing civil penalties for such violations.
In exchange, the Nevada Operations Office should seek support from the State for any DOE efforts that may be necessary to secure additional land withdrawals or modifications to existing land withdrawals for Federal waste disposal activities at the Nevada Test Site.
I would like to reaffirm former Assistant Secretary Alm's view that DOE is greatly interested in reaching an arrangement with the State of Nevada in which the department, consistent with the applicable legal framework, can benefit from having the State's perspective in matters affecting Federal low-level waste management a the Nevada Test Site. I hope you find these suggestions useful to that end.
If you have any questions on this matter, please contact me at 202-586-0370 or Jim Turi at 301-903-7100
James A Turi
Mark W. Frei
Acting Deputy Assistant Secretary
for Waste Management