Department of Conservation and Natural Resources
Division  of  Environmental  Protection

333 W. Nye Lane, Room 138
Carson City, Nevada 89706-0866
Peter G. MORROS, Director
L.H. DODGION, Administrator
TDD 687-4678

Mining Gegulations and Reclamation
Water Pollution Control
Facismile 687-5856

Seal of the State of Nevada
Waste Management
Corrective Actions
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Air Quality
Water Quality Planning
Facismile 687-6396

May 18, 1998

Mr. Jay Rhoderick
United States Department of Energy / EM-35
19901 Germantown Road
Germantown, MD 20874-1290

    Re: State of Nevada Comments: U.S. Department of Energy " Notice of Intent to Conduct Policy Analysis, Request for Public Comments" (Disposal of Low- Level Radioactive Waste (LLW) and Mixed Low-Level Radioactive Waste (MLLW) at Commercial Facilities)

Dear Mr. Rhoderick:

     The State of Nevada supports the use of licenced commercial sites by DOE for disposal of defense low-level radioactive waste (LLW) and mixed low-level radioactive waste (MLLW). We also support DOE's existing policy that requires commercial facilities that dispose of DOE waste to comply with all federal and state permits and licenses per Agreement State status. Nevada officials further concur that a federal and/or state license must be required for the disposal of defense LLW at non- federal commercial disposal sites. Such a requirement should be reenforced through federal legislation.

     In addition, Nevada officials believe that waste management practices should not vary significantly between licenced commercial disposal sites and DOE "owned" disposal sites (i.e., DOE sites on federal lands and/or withdrawn public lands). Nevertheless, we do acknowledge that certain DOE disposal sites are unique in terms of site-specific and site-wide radiation hazards and that such sites would not necessarily conform to commercial licencing standards.

     Maintaining in perpetuity control of a waste disposal site is also paramount to insure the protection of public health from the unique long-lived hazards associated with radioactive waste. Thus, under no circumstances, should DOE be allowed to temporarily or permanently relinquish this responsibility through a contract or other method to an unlicenced commercial or private entity. DOE should also not attempt to regulate a disposal operation where such an operation is privately owned. As noted in the recently filed brief of Amici Curiae, State of Washington [and other states] as per the Waste Control Specialists/DOE law suit, "the AEA [Atomic Energy Act] charges the DOE with managing the federal nuclear weapons complex, not regulating privately owned and operated facilities such as the WCS [Waste Control Specialists] facility." Thus, the goal of the policy analysis should be to reconfirm that, when DOE chooses to use a commercial disposal facility for LLW and/or MLLW, such facilities must be licensed by the NRC or a State under NRC Agreement State Status.

     Nevada officials also believe that DOE should expand the policy analysis to assess "external regulation" of disposal site operations at DOE owned and controlled facilities. This is important since it appears that most of the "legacy waste" and waste generated through environmental restoration will be disposed of at DOE owned sites. Therefore, to be comprehensive, the policy analysis should cover DOE's disposal of LLW and MLLW operations at DOE sites. Extending the policy analysis would also further the Department's initiative toward external regulation.

     In January 1995, Energy Secretary Hazel O'Leary created the Advisory Committee on External Regulations. The committee's report (Improving Regulations of Safety at DOE Nuclear Facilities) recommended that all aspects of safety at DOE's nuclear facilities be externally regulated. Secretary O'Leary subsequently established an internal DOE working group to assess the committee's findings. In December 1996, this group made its recommendations, and those recommendations led to a commitment by DOE to seek legislation that would eventually transfer oversight of DOE nuclear safety operations to the NRC (Nuclear Regulatory Commission). While the legislative proposal has yet to be initiated, in June 1997, both DOE Secretary Peña and NRC Chairperson Jackson agreed to pursue NRC regulation of DOE nuclear facilities on a pilot program basis. In November 1997, the respective entities signed an Memorandum of Understanding, establishing the pilot program.

     With the exception of certain environmental remediation issues (i.e., CERCLA, RCRA cleanup agreements and air emissions), DOE has been self-regulated since the enactment of the Atomic Energy Act. This "self-regulation" has generated sharp criticism resulting in significant loss of public trust and credibility. Credibility problems at DOE have been intensified through the disclosure of the Department's enormous environmental cleanup legacy left from the nation's weapons production programs. It has been argued that this legacy is in part responsible for DOE's move toward external regulation.

     Given these considerations and to support DOE's initiative toward external regulation, Nevada officials are in the process of negotiating a joint DOE/State "oversight program" for LLW operations at the Nevada Test Site (NTS). a While there remains unresolved issues related to DOE's ability and/or willingness to delegate regulatory authorities to the State for waste disposal activities (i.e., under the Atomic Energy Act), it is the State's position that DOE must move away from self-regulation.

     Nevadans have a serious stake in making sure that DOE's disposal operations at NTS are appropriately managed, given DOE's pending Record of Decision for the Department's Programmatic Waste Management Environmental Impact Statement (PEIS). It is stated in the referenced PEIS that if the NTS were selected as a centralized disposal site for LLW and MLLW and shipments of High-Level-Waste (HLW) to Yucca Mountain were to occur (i.e., per interim storage legislation if enacted and/or if DOE obtains an NRC license for Yucca Mountain), then a combined total of more than 295,000 truck shipments or more than 106,000 rail shipments of waste could be sent to the NTS over a ten year period. (This adds up to 118 truck shipments or forty-two rail shipments per day, assuming a 250-day year. b)

     Considering past disposal practices at NTS c along with recent events such as the repeated discovery of leaking waste containers shipped from DOE's Fernald site in Ohio to the NTS d, Nevada officials contend that DOE must concede to external regulation of LLW disposal operations at the NTS.

     As mentioned above, DOE agrees with the external oversight concept and thus is amenable to developing a partnership with the State of Nevada in pursuit of external oversight of NTS LLW operations. DOE has agreed to amend the DOE/State funding mechanism (Agreement in Principle) to formalize a joint DOE/State Low-Level Waste Oversight Program. e However, it appears that DOE is not yet ready to address the actual delegation of regulatory authority for LLW operations. f DOE should initiate actions to amend the AEA to explicitly allow for the delegation of this authority, even though State officials contend that DOE can share such authority, per the Atomic Energy Act.

     Accordingly, we must restate that DOE should expand the policy analysis to assess external regulation of disposal site operations at DOE owned and controlled facilities. The policy analysis should not be limited to commercial disposal facilities alone. This is important since DOE will likely select only a few regional federal disposal sites (per the Waste Management PEIS decision process), and these sites will receive the vast majority of defense LLW and MLLW for permanent disposal. Nevada officials are well aware that the NTS remains on the short list of candidate sites.

     In addition, because DOE has spent considerable time and effort to develop a new waste management order, the policy analysis should consider promulgation of this order as a codified federal regulation. Such action would give the states the ability to adopt DOE's waste management regulations for use in the external regulation of defense LLW disposal operations at DOE sites. This would not necessarily constitute a precedent setting action, since under EPA delegated program authorities (e.g., Resource Recovery and Conservation Act), states are currently regulating DOE disposal sites for the hazardous fraction of MLLW. In Nevada, this regulatory activity is implemented at one of DOE's LLW disposal sites on the NTS.

Concluding Remarks:

     Again, the State of Nevada strongly supports DOE's current LLW and MLLW disposal policy concerning the use of licenced commercial disposal facilities, where such facilities comply with all state and federal requirements. Since this policy is under legal duress, we concur with the recommendations put forth by the National Governors' Association and the National Association of Attorneys General. These recommendations encourage the Congress to legislatively prohibit DOE from contracting with companies that do not have an NRC or state license for waste disposal facility operations (e.g., the case involving Waste Control Specialist LLC).

     Finally, in an effort to further DOE's initiative toward external regulation, Nevada officials believe DOE should expand the policy analysis to assess external regulation of DOE LLW disposal operations at DOE owned and controlled facilities. This is important since most of DOE's disposal operations are accomplished through self- regulation. We do maintain that DOE can delegate regulatory authority for LLW disposal operations to the states despite the recent DOE headquarters guidance. f

With submittal of these comments, we challenge DOE to initiate actions to allow States to regulate DOE's LLW operations on federally controlled sites. This action should be assessed either through the referenced policy analysis or a subsequent analysis under the auspices of the National Environmental Policy Act.

      If you have any questions or concerns about these comments, please contact me (NDEP, 702-687-5872, ext. 3039) or John Walker (NDEP, Governor's Policy Rep., 702- 687-5872, ext. 3027).




Paul Liebendorfer

Paul J. Liebendorfer, P.E.
Bureau of Federal Facilities



    Nevada Congressional Delegation
    Tim Crowley, Governor's Office
    Lew Dodgion, Environmental Protection
    Robert R. Loux, NWPO
    Leo Penne, Nevada, Washington Office
    Yvonne Sylva\Alan Tinney, State Health
    C. Gertz\ Don Elle, DOE/NV
    Ann Beauchesne, NGA
    NGA State Task Force Members
    Earle Dixon, NTS/CAB



    a   October 3, 1996 -- Governor Bob Miller's letter to Alvin L. Alm (DOE Assistant Secretary for Environmental Management)

    June 11, 1997 -- Letter from Alvin L. Alm, DOE Assistant Secretary for Environmental Management, to Governor Bob Miller. The Secretary's letter proposed a strategy for implementing a State oversight program for DOE low-level waste disposal activities at the Nevada Test Site.

    October 21, 1997 -- Letter from Alvin L. Alm, DOE Assistant Secretary for Environmental Management, to Lew Dodgion, Administrator, Nevada Division of Environmental Protection. This letter reaffirms the Secretary's commitment to pursue a Federal/State joint oversight program of LLW disposal operations at the NTS.

    b    U.S. Department of Energy, May 1977. Final Waste Management Programmatic Environmental Impact Statement (DOE/EIS-0200-F), page 85.

    c   Historical waste disposal operations at NTS failed to comply with certain environmental disclosure laws (NEPA) and DOE orders. It took legal action by the State of Nevada to insure DOE initiated compliance with these laws and orders.

    d   See DOE Type B Accident Investigation Board Report of December 15, 1997: "Leakage of Waste Containers near Kingman, Arizona." (Note: Months prior to the Kingman incident, and on at least two specific occasions, DOE contractors in Nevada discovered leaking waste containers that had been shipped from Fernald, Ohio through Las Vegas to the Nevada Test Site — see page 14 of the referenced document).

    e   U.S. Department of Energy correspondence dated May 6, 1998, from Carl P. Gertz, Assistant Manager for Environmental Management to K.A. Hayes Chaney, DOE/HQ (EM-38) CLVRL. Topic: "JOINT DOE/STATE OF NEVADA OVERSIGHT OF LOW-LEVEL WASTE DISPOSAL AT THE NEVADA TEST SITE (NTS)."

    f   Department of Energy, Memorandum, March 12, 1998. Department Guidance for Discussion with State of Nevada on "Low-Level Waste Disposal Operations at the Nevada Test Site". From Mark W. Frei, Acting Deputy Assistant Secretary for Waste Management, DOE-EM, to Carl P. Gertz, Assistant Manager for Environmental Management, Nevada Operations Office.

  • For related information see: State of Nevada background paper and related corespondance concerning DOE's Environmental Management Program at the Nevada Test Site

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