Peter G. MORROS, Director
Allen Biaggi, Administrator
TDD 687-4678

Mining Regulations and Reclamation
Water Pollution Control
Facismile 687-5856

Waste Management
Corrective Actions
Federal Facilities
Facismile 885-0868

Air Quality
Water Quality Planning
Facismile 687-6396

Department of Conservation and Natural Resources
Division  of  Environmental  Protection

333 W. Nye Lane, Room 138
Carson City, Nevada 89706-0866


September 8, 1998

Martin Letourneau
Office of Waste management, EM-35
U.S. Department of Energy
19901 Germantown Road
Germantown, MD 20874-1290

Dear Mr. Letourneau:

     Thank you for providing the State of Nevada the opportunity to review the above-mentioned U.S. Department of Energy (DOE) draft order and accompanying manual. Our comments focus on both programmatic and specific issues.

     Overall, we found the revised order and manual comprehensive and well organized. We also acknowledged DOE for making the order available for external review. This is important since the subject of the order, "management of radioactive waste," represents one of DOE's last areas of self-regulatory authority under the Atomic Energy Act of 1954.

General Comments

     Revising DOE's Waste Management Order and accompanying manual to address performance-based requirements, decentralization of certain program responsibilities, and documentation of a technical basis for waste management operations will most likely improve the department's treatment, storage and disposal of radioactive wastes.

     Officials from the State of Nevada are concerned, however, about the elimination of the reference in the order and manual to low-level waste (LLW) previously called "special case waste." Although the definition of special case waste is admittedly nebulous, it still provides a way for DOE to acknowledge inventories of waste with "special" management problems albeit for treatment, storage or disposal. As might be expected, in Nevada there is a concern about expanding DOE's disposal program at the Nevada Test Site (NTS) for LLW that may exhibit high levels of radiation, (i.e., high activity LLW).

     As DOE officials are aware, LLW is defined not by what it is, but by what it is not. Generally, LLW is defined as radioactive waste not classified as high-level radioactive waste (HLW), spent nuclear fuel (SNF), transuranic waste (TRU), or by product materials such as uranium and thorium mill tailings. Nonetheless, LLW can exhibit varying radiation levels and thus can present various levels of hazardous conditions to human health and the environment. To address this issue, the Nuclear Regulatory Commission (NRC) categorizes "commercial" LLW into four classes for the purpose of disposal (e.g., Class A, B, C, and Greater-Than-Class C [GTCC]). NRC's classification system reflects different radioactivity concentrations for certain long-and short-lived radionuclides. Under the regulations, Class A, B, and C may be disposed of in near-surface facilities, whereas GTCC is not generally considered suitable for near-surface disposal.

     Given this situation, DOE's existing waste management order (5820.2A) states that: "disposition of waste designated as Greater-Than- Class C, as defined in 10 CFR 61.55 must he handled as special case [and] disposal systems for such waste must be justified by a specific performance assessment through the National Environmental policy Act process . . ." In addition to this existing requirement, DOE recently acknowledged that "some [defense] waste managed as a special case and GTCC LLW must be isolated from human exposure for periods in excess of hundreds or thousands of years [and] these wastes are not currently authorized for disposal in a geologic repository under the Nuclear Waste Policy Act (42 USC 1010- 10270)." (1)

     Consequently, we conclude that DOE has recognized that certain defense LLW is not appropriate for near-surface disposal and lacks sufficient National Environmental Policy Act (NEPA) "programmatic" coverage.

     Given these considerations, it appears the referenced draft DOE Order and Manual have been revised to alter the currently required public disclosure process required by NEPA for determining the disposition of certain waste types considered not suitable for near-surface disposal, (i.e., DOE LLW waste that demonstrates "rad" characteristics considered equivalent to, or greater than, commercial GTCC waste). Rather than pursuing the traditional NEPA process for these waste types, it appears that DOE is now proposing in the draft order a process that strictly relies on site- specific and composite performance assessment modeling -- that is iterative by design -- along with an ever flexible and generally evolving waste acceptance program.

     In terms of reliance on the performance assessment (PA) process, we do acknowledge the inclusion of language in the draft order which does address "limits on the concentration of radionuclides" that may be disposed of in near-surface facilities, (see Chapter IV, Section P (2)(G)). Nevertheless, the PA process is not designed to address programmatic issues such as defining the universe of DOE LLW waste that exhibit special handling problems. The PA process also fails to assess alternatives for the disposition of these wastes in terms of human health risks, costs, and transport impacts across the DOE weapons complex (i.e, a programmatic analysis). Unlike NEPA, the PA process is also "closed" to public review and comment.

     Likewise, while the order requires waste receiving facilities to evaluate waste for acceptance -- to meet certain technical and administrative requirements defined in the order -- it also allows development of "a process for the disposition of non-conforming waste to be established." Yet a definition of "non performing waste" is not provided in the order (see Chapter IV, Section (G)(2)). This is important given the current interpretation of how DOE may address the disposal of waste at NTS, which is deemed equivalent to GTCC commercial LLW.

     Specifically, the NTS Waste Acceptance Criteria (WAC) states that "commercial waste designated as Greater-than-Class C (GTCC), as defined in 10 CFR 61.55, and DOE waste that, if commercially generated, would meet the GTCC definition, may be evaluated for disposal on a case-by-case basis depending on site-specific waste classification limits." The NTS-WAC also states that "this review may involve considering non-routine disposal options such as controlling depth of disposal, considering other waste forms and package integrity, limiting other types of waste disposed nearby and the development of a specific radiological performance assessment."

     DOE has also "set the stage" to implement disposal of equivalent GTCC wastes at the NTS. In the 1996 NTS Site-Wide EIS (DOE/EIS 0243), DOE's expanded use alternative (2) proposed the development of new disposal unities for waste streams considered "inappropriate for shallow land burial" (see page 3-12).

     In any event, by exclusively relying on the PA process and the NTS Waste Acceptance Criteria for disposal of DOE defense waste deemed equivalent to GTCC LLW, the DOE undercuts the public disclosure process and the evaluation of alternative disposition options required by NEPA for these waste types. State officials believe this is not an appropriated action DOE should pursue. To the contrary, DOE should use the NEPA process to programmatically assess disposition options for LLW streams considered unsuitable for shallow land burial.

Specific Comments

    I. Radioactive Waste Management Order

    3.(c) Exemptions. (Line four & 5)

    Comment: Under the draft order, spent nuclear fuel is exempted as a "non-waste material." Since we believe DOE is not planning to reprocess or recycle the agency's inventory of defense spent nuclear fuel, the fuel should be defined as a waste. Defining DOE's inventory of defense spent nuclear fuel as a waste would also not change the scope or intent of the order. Section d.(2) of the order addresses exemptions of DOE wastes that are destine for management under other authorities and programs, (i.e., WIPP Land Withdrawal Act, Nuclear Regulatory Commission, NWPA etc.).

    II. Radioactive Waste Management Manual

    Chapter I

    B. Use of Guidance:

    Comment: The referenced Implementation Guide for use with DOE Order 435.1 should be made available for public review and comment.

    D. (1) Analysis of Environmental Impacts:

    Comment: The order states that radioactive waste management facilities shall meet the DOE's implementation regulations (10 CFR 1021) for the National Environmental Policy Act (NEPA). In part, this means that the order requires DOE to apply the NEPA process for sitting, constructing, or significantly altering DOE waste management facilities (i.e., taking a major federal action). The order is silent, however, concerning how "historic" DOE waste management facilities would be brought into compliance with 10 CFR 1021. As DOE officials should be aware, certain existing defense waste "disposal facilities" were significantly expanded after passage of NEPA and yet these facilities were never the subject of a specific NEPA analysis (e.g., Nevada Test Site [NTS] Area 5 and Area 3 Radioactive Waste Management Sites).

    E. (4) Use of Non-DOE Facilities

    Comment: As mentioned in past correspondence to DOE,(3) 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.

    E. (4) Waste With No Identified Path to Disposal

    Comment: We support the concept of identifying the generation of radioactive waste that has no identified path to disposal before such waste is approved to be generated. However, the order should also require DOE organizations to document existing waste streams that have no identified path to disposal. Waste streams that fall into this category should be included in DOE's "Waste Management Data System" stipulated under section C.(2) of Chapter I.

    In addition, and as mentioned above, LLW that is considered equivalent to GTCC wastes or otherwise deemed to have "special" handling problems (i.e., high activity) and is otherwise deemed inappropriate for shallow land burial, should be "programmatically" evaluated under the National Environmental Policy Act.

Concluding Remarks:

     Overall we believe the revised Order and accompanying Manual will improve DOE programs for treatment, storage and disposal of radioactive wastes. However, since the comment period for reviewing the revised documents was limited to 30 days, we were unable to provide a complete technical review and/or comparative analysis between the existing and proposed orders ( e.g., changes from 5820.2A to 435.1). Nevertheless, because of a recently negotiated DOE/State agreement for oversight of defense LLW operations at the NTS -- we are confident the State of Nevada will have additional opportunities to address both programmatic and site specific disposal issues as they relate to DOE's revised Order and Manual for Radioactive Waste Management.

     Again, thank you for providing the State of Nevada the opportunity to review the draft order and accompanying manual.


Paul Liebendorfer

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


    Allen Biaggi, NDEP
    Robert R. Loux, NWPO
    Alan Tinney & Stan Marshal, Health Division
    Maud Naroll, State Clearinghouse
    Carl Gertz, DOE/NV


      1. U.S. Department of Energy, Office of Environmental Management, May 1997. "Final Waste Management Programmatic Environmental Impact Statement For Managing Treatment, Storage, and Disposal of Radioactive and Hazardous Waste, Volume I page 1-30.

      2. The Expanded Use Alternative for waste management operations at the NTS was not adopted although this could be changed through a supplemental EIS and/or a revised Record of Decision.

      3. Letter from Paul Liebendorfer to Mr. Jay Rhoderick, May 18, 1998. 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)

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