State Seal
1802 N. Carson Street, Suite 252
Carson City, Nevada 89701
Telephone: (702) 687-3744
Fax: (702) 687-5277
Executive Director

May 1, 1998

Mr. Gene Schmitt
U.S. Department of Energy
P.O. Box 44820
Washington, DC 20026-4820

Re:State of Nevada's Comments Paths to Closure

Dear Mr. Schmitt:

In the U.S. Department of Energy's (DOE) Paths to Closure document, it is recommended that stakeholders prepare both general and specific comments for consideration by DOE headquarters and field office staff. This comment letter follows this recommended format.

General Comments
DOE Complex, Paths to Closure

Budget Targets for Fiscal Year 1999 Through 2006:

In September 1997, the State of Nevada submitted detailed comments on DOE's "Accelerating Cleanup: Focus on 2006 Discussion Draft" plan. In those comments, we credited DOE for adopting a vision to address the legacy of radioactive contamination that exists throughout the weapons complex. a In reviewing the Paths to Closure document, State officials acknowledge DOE's recent effort to refine the Department's cleanup vision through development of specific "project baselines" b and projected "end states" for each of the 353 projects defined in the Paths to Closure document. We are, however, concerned that realizing this vision will be difficult, given DOE's projected flat budget targets for fiscal year 1999 through 2006. If these budget targets fall below current projections, we believe DOE will be unable to meet existing Environmental Management (EM) program objectives (i.e., milestones stipulated in negotiated cleanup agreements and consent orders). Failure to meet these objectives will also jeopardize DOE's plan to accelerate cleanup for the 353 projects and will likely lead to increased life-cycle costs beyond current projections (147 billion for the period 1997 to 2070). In addition, if short-term funding for fiscal years 1999 through 2006 is not realized or is significantly reduced, EM's new budget process for establishing "project baselines" and "projected end states" for each of the 353 cleanup projects could be jeopardized. This would be unfortunate given DOE's uneven history concerning the number of unsuccessful plans and planning processes that have been developed for the EM program in recent years.

Obviously, adequate funding to support both short- and long-term program objectives through what now appears to be a workable planning process is needed more than ever to address the legacy of contamination left from the Cold War era. From a national perspective, it appears that DOE has gained substantial support from key stakeholders such as regulators, Tribal Nations, and non-government organizations for continuing an aggressive cleanup program of the DOE complex.

EM Funding - Nevada Test Site:

As we have stated in the past, the Nevada Test Site (NTS) is unique in comparison to all other DOE sites. More than 900 nuclear tests were conducted at NTS, with 200 of these tests detonated within the vicinity of the groundwater. Today, there are more than 300 million curies of radioactive contamination spread through millions of cubic meters of environmental media at the site (NTS Site-Wide EIS). In fact, no other DOE site contains a comparable volume of groundwater and surface and subsurface soil contamination. At NTS, DOE is faced with enormous uncertainty about how this contamination can be effectively characterized, monitored, and contained over the long-term.

DOE's commitment to managing the long-term "out-year" surveillance and maintenance of this contamination is a critical environmental and public health and safety concern for Nevadans. This is important because of the uncertainty about the potential offsite movement of groundwater contamination, let alone the type of containment strategy that may be needed at NTS in the future. Likewise, it appears DOE's solution for addressing contaminated surface soils is "closure in place" followed by "in perpetuity institutional control". Needless to say, the groundwater and soil contamination issues at NTS have yet to be adequately addressed in either DOE's national or site-specific Path to Closure plans.

The funding level for EM programing at NTS also remains historically low (i.e., one percent of the national program), and State officials believe that support for site investigation, remediation, and closure activities is arguably out of balance with the level of contamination and associated long-term risks at the site. While there are reasons that explain this lack of funding, such as timing and uncertainties ( e.g., nuclear testing was not halted until 1992 - some four years after the beginning of DOE's EM program), DOE officials have been unable to significantly increase funding for site remediation activities at NTS.

Unfortunately, these funding and site contamination issues are further complicated by other factors. For example, it appears that DOE is committed to an expanded low-level waste disposal mission for NTS. This activity may serve to increase the site's "mortgage costs" while compounding the uncertainties about long-term protection of human health and the environment.

State Equity Issues:

In response to past, present, and future DOE defense and environmental restoration activities conducted at the NTS, the State of Nevada has developed the following list of equity issues. These issues were developed to address socioeconomic and environmental impacts associated with DOE activities at the NTS. The following discussion provides a brief overview of these issues and their relationship to the Paths to Closure planning process.

  • Shared Regulatory Oversight of Low-Level Waste (LLW) Disposal Activities at the NTS;

  • Life Cycle Analysis of LLW Disposal Costs at the NTS;

  • Elimination of the Transportation of LLW Through the Highly Urbanized and Congested Las Vegas Valley; and

  • Development of a Health Assessment and Monitoring Program for the NTS and Surrounding Environs.

1. Shared Regulatory Oversight of Low-Level Waste Disposal Operations at the NTS:

In an effort to support DOE's initiative concerning external regulatory oversight, the State of Nevada is in the process of negotiating a joint DOE/State oversight program for Low-Level Waste (LLW) operations at the NTS. c While there remain 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), d it is the State's position that DOE must move away from self regulation. Past disposal practices at NTSealong with recent "events" such as the mishap involving the repeated discovery of leaking waste containers shipped from DOE's Fernald site in Ohio to the NTS f , are examples of why DOE needs to support external regulation.

In any event, DOE is in agreement 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. It should be mentioned, however, it appears that DOE is not yet ready to address the actual delegation of regulatory "authority" for LLW operations, even though States officials content that DOE could transfer such authority (per the Atomic Energy Act) to the states.

Establishing the joint DOE/State oversight program is being pursued in parallel with the finalization of the DOE order for waste management and the issuance of a Record of Decision (ROD) for DOE's Waste Management Programmatic Environmental Impact Statement (PEIS). From the Nevada perspective, both of these DOE initiatives will significantly impact the DOE Paths to Closure planning process.

2. Life Cycle Analysis of LLW Disposal Costs at the NTS:

In recent years, State officials have suggested that DOE develop a life cycle costs analysis of the LLW disposal program at NTS. Such an analysis is needed to assess costs for the existing and potential expansion of disposal operations at the site (i.e., through the approval of additional off-site waste generators per DOE's forthcoming ROD for the Waste Management PEIS).

In any event, if the NTS is selected as a central or regional disposal site per the referenced ROD, Nevadans could see thousands of additional shipments of off-site generated low-level and mixed low-level waste from other DOE sites. As is the case now, any new wastes would continue to be disposed of in shallow landfills and bomb craters in the Area 5 and Area 3 NTS radioactive waste management units.

As mentioned previously, DOE's commitment to managing the long- term "out-year" surveillance and maintenance of contaminated sites on the NTS, including disposal sites, is a primary environmental and public health concern for Nevadans. Given these concerns, State officials believe DOE has no provisions in place to assess the disposal fee structure to support the out- year life-cycle costs that will be needed to manage both near-term and in perpetuity care of the radioactive waste disposal facilities on the NTS. Such an analysis is needed to provide real "market-driven" estimates for determining the adequacy of fees paid by off-site waste generators to cover both short-term operational costs and long-term surveillance and maintenance costs.

While DOE seems to recognize that off-site generators should provide full life-cycle funding to support waste management operational and closure costs, State officials have yet to identify any firm plans to address this issue. The NTS "Accelerating Cleanup" Draft Plan (2/98) does suggest that DOE's waste management baseline will account for these costs. Yet we suspect that such costs are limited to forecasts of existing waste generators only. In addition, DOE's comment/response document (NTS 2/98 Accelerating Cleanup Plan - P.7-39) and related correspondence g suggest that real program costs are kept as low as possible to benefit DOE generator sites. From the State's perspective, keeping the costs at an artificial "below market level" amount appears to serve as an incentive for off-site waste generators to ship waste to the NTS. It is the State of Nevada's position that DOE sites throughout the weapons complex should dispose of their own waste at their own site, where technically and environmentally feasible. Shipping waste to another site to save money is not an acceptable practice.

The shipping forecast for waste slated for the NTS from all approved DOE waste generators for FY 1998 amounts to 697,348 cubic feet. Based on this forecast, DOE's contractor (Bechtel Nevada) determined that the planning disposal fee rate would be $8.50 per cubic foot. g This fee rate will generate about $6.9 million, an amount that is subsidized by DOE/EM allocations from headquarters. According to DOE officials, the generator fee rate only covers costs for the physical disposal of the waste, while headquarters allocations cover minimum annual operational costs to insure disposal facilities remain open.

Thus, it appears that the current funding approach fails to account for the long-term surveillance and maintenance costs for the disposal units at NTS. In addition, because headquarters allocations for environmental restoration activities at NTS are considered inadequate, it seems inappropriate to support a subsidy for the DOE's complex-wide waste disposal program at the expense of environmental cleanup.

Accordingly, State officials believe that a third party review should be initiated to assess the adequacy of the disposal fee for NTS waste management operations. Such a review should account for the costs associated with:

    •  Differing waste acceptance criteria
    •  Regulatory requirements
    •  Waste packaging
    •  Transportation
    •  Disposal operations
    •  Closure costs (i.e., cost for long-term surveillance and maintenance)

The analysis should further include a comparison of disposal fees to cover life-cycle costs at commercial and non-commercial disposal sites. Also, since actual waste volumes are difficult to predict and given the uncertainties about waste generation from environmental restoration activities, the analysis should include an assessment of direct funding verses the use of generator fees.

3. Elimination of the Transportation of LLW through the Highly Urbanized and Congested Las Vegas Valley:

In November 1997, DOE/Nevada issued a Non-Subpart D Environmental Assessment Determination to Institutionalize and Encourage Intermodal Transportation of (DOE) Complex-wide Generated Waste to the Nevada Test Site. h The document initiated the preparation of an Environmental Assessment (EA). The EA, which is currently under preparation, will review various alternatives for intermodal transportation of LLW to the NTS. The action by DOE/Nevada followed from an initial proposal by DOE/Fernald to establish an intermodal (rail to truck) waste transfer facility within the Las Vegas Valley. (DOE/Fernald is a major shipper of LLW to Nevada.)

Fernald's proposal (slated as a pilot study) met with extreme criticism from both State and local officials. For southern Nevadans, moving LLW through the Las Vegas Valley has remained a controversial issue for some time, as hundreds of shipments containing thousands of cubic feet of LLW are transported to NTS each year. i More importantly, nearly all of these shipments are trucked across Hoover Dam through the Las Vegas Valley by way of the notorious "spaghetti bowl" freeway interchange. Las Vegas is the fastest growing metropolitan area in the country. This fact, along with the unprecedented volume of tourists who visit the city annually (now estimated at 30 million), brings into question what might happen if a transportation accident involving radioactive waste were to occur.

State officials believe that such an accident would have a devastating socioeconomic impact on the State's economy. The hotel, gaming, and recreation sector is the State's major economic force providing the lion's share of tax revenues for both local and statewide public services.

Given these considerations, DOE/Nevada has adopted a proposed action for the EA that keeps intermodal transport of LLW out of the Las Vegas Valley. However, State officials recently informed DOE that the EA must evaluate an alternative that addresses the use of intermodal transportation in combination with highway routes (i.e., highway routes must be defined as routes from intermodal facilities to the NTS that avoid transport of waste through the heavily congested Las Vegas Valley). State officials have further requested that for transport of LLW using trucks only, the assessment must focus on routes that avoid transport of waste through the valley.j

While it remains to be seen if DOE will address this waste transport equity issue, it nevertheless is a key concern for both State and local officials. Only recently, the cities of Las Vegas, Boulder City, North Las Vegas, and Clark County passed resolutions k requesting DOE to stop shipping low-level waste through the metropolitan Las Vegas Valley. The metropolitan area of Las Vegas has a combined population of over 1.2 million residents. It is the State's position that DOE's approach to resolving this equity issue must be considered in the ROD for the Waste Management PEIS and through DOE Nevada's Paths to Closure planning process.

4. Development of a Health Assessment and Monitoring Program for the NTS and Surrounding Environs:

While Nevada has a long history of exposure to nuclear radiation from nuclear testing at NTS, there has been little attention given to the health risks of past exposures and little understanding of risks associated with ongoing and proposed nuclear waste disposal activities at NTS. State officials do acknowledge that limited epidemiological studies were conducted after nuclear testing; however, those studies focused primarily on selected citizens in states other than Nevada. These studies did show a relationship between fallout and thyroid abnormalities and leukemia rates.

As DOE is aware, the National Cancer Institute (NCI) recently released a national study of radioactive iodine exposures from nuclear tests, and although NCI's study is insufficient for assessing health risks to Nevadans, medical ethnographies have reported a great deal of anecdotal evidence for health effects from fallout beyond what has been document by existing epidemiological studies. In addition to the continuing health risks associated with past weapons testing, State officials are concerned about the risks posed by ongoing and proposed nuclear waste disposal activities at NTS. The NTS is a principal disposal site for LLW, and the site could see significant increases given the outcome of DOE's Waste Management PEIS.

It is also important to remember that Nevada could be impacted by thousands of shipments of high-level radioactive waste (HLW) and spent nuclear fuel beginning early in the next century should Yucca Mountain become a HLW repository or should Congress be successful in designating NTS as an interim storage site for commercial spent fuel.

Given these considerations, State officials are pursuing federal assistance from DOE and the Agency for Toxic Substances and Disease Registry in an effort to begin a statewide and/or regional approach to identify past and potential health risks associated with federal nuclear activities in Nevada. Such an effort could involve new epidemiological studies and health surveillance activities. Again, it is the State's position that DOE's approach to resolving this equity issue should be considered in the ROD Waste Management PEIS and DOE Nevada's Paths to Closure planning process.

Specific Comments
Accelerating Cleanup, Paths to Closure
Nevada Operations Office, February 1998

Planning Assumptions:

In the Nevada Operations Office Paths to Closure document, DOE assumes in perpetuity control of the existing boundaries of the NTS. One of the key "cleanup" assumptions proposed for NTS relies on resolving the never ending question of "how clean is clean for what use." Accordingly, the document simply states that "remediation will be performed for applicable areas once future land-use decisions are made."

It is also suggested that surface soil plumes that straddle or extend outside NTS boundaries will be characterized and remediated, while sites within the boundaries of NTS will only be characterized and monitored. It is further proposed that off-site contaminated areas will be characterized and remediated prior to release of surface areas, whereas subsurface restrictions will be maintained in perpetuity to prohibit access to radioactive contamination in the groundwater.

In reference to the surface contamination on NTS proper, the planning assumption seems to suggest that the land will never be used again, and yet subsequent mission requirements by DOE or other federal entities may require some remediation and/or containment of surface soil contamination on the NTS. This "future mission assumption" should be incorporated into the Path to Closure document.

In terms of restricting access to contaminated groundwater on NTS, State officials concur that maintaining subsurface restrictions in perpetuity may be the only acceptable approach for presently contaminated resources. However, DOE must control the potential migration of contaminates to un- impacted groundwater resources. It is important to understand that acquiring new water rights would not be considered an appropriate and/or legally defensible method for restricting access to the water resource. In other words, acquiring water rights for the purpose of allowing the spread of groundwater contamination would not be an acceptable containment strategy. In Nevada, the acquisition of water rights can only be allowed for a beneficial use. Furthermore, the State of Nevada would likely seek natural resource damage assessments for offsite contamination of the State's groundwater.

Land Use Jurisdictions and Remediation Alternatives:

In the Paths to Closure document, questions regarding future use responsibilities for certain portions of Pahute Mesa are deferred, pending completion of the Nellis Air Force Range Legislative Environmental Impact Statement (LEIS). Pahute Mesa is on temporary loan to DOE per a Memorandum of Agreement with the Air Force. Pahute Mesa was used for underground testing (high-yield) and above ground "Plowshare" experiments; these tests resulted in surface and subsurface contamination.

Given the existing "temporary" land-use jurisdiction held by the Air Force for Pahute Mesa (i.e., PL 99-609), DOE cannot assume long-term (i.e., 100 years) and/or in perpetuity control over this area. Since DOE is proposing to remediate surface contamination on contiguous Air Force withdrawn public lands (e.g., at Double Tracks, Clean Slates, etc.) to levels that would support "unrestricted use," this same planning assumption (i.e., cleanup to unrestricted use) should be considered for Pahute Mesa. On the other hand, if the Air Force proposes the transfer of Pahute Mesa to the Department of Energy through the LEIS process, then the current planning assumption for the Mesa (i.e., restricted use) could be assumed.

In a related issue, the Paths to Closure document is silent on the withdrawal status for the NTS. Since the NTS withdrawal is the subject of a settlement agreement with the State of Nevada, the final Paths to Closure document should address the legal and/or administrative "withdrawal alternatives" under which DOE\Nevada would maintain control in perpetuity of NTS.

Scope of NTS Paths to Closure Document:

State officials believe that the NTS "Paths to Closure" document fails to assess a complete and comprehensive long-term remediation program for the NTS. The document is limited in scope and fails to include all potential remediation activities necessary to achieve desired "end states" at the site. NTS is a DOE Defense Program (DP) site. As such, the majority of facilities (1,500 structures) and certain land use areas are, by mission designation, outside the scope of planned EM cleanup activities at the site. In addition, it appears that DP is responsible for certain ongoing remediation activities (industrial sites) that State officials believe were not considered in EM's "comprehensive" prioritization process for achieving desired end states as discussed in the Paths to Closure document. For example, a contractor report l indicates that several of DP's remediation sites can be completed by FY2008, if the annual spending level is increased by 1.2 million per year. If increased DP spending is not achieved, however, DOE would still require staff and contractors to complete these cleanup actions long after the EM program has been completed. Since it appears that there is a "dual track cleanup program" at NTS (i.e., for EM and DP sites), State officials are concerned that a comprehensive long-term remediation program for the entire site has not been fully documented in the Paths to Closure document. Accordingly, the final Paths to Closure document should address both EM and DP cleanup activities under identical times frames.

We hope you will give careful consideration to these comments, and we look forward to working with DOE headquarter and Nevada Operations Office officials to further develop Nevada's equity concerns as they relate to environmental restoration and waste management activities at the NTS.

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



Robert R. Loux

Robert R. Loux
Executive Director


cc: Nevada Congressional Delegation
Richard Urey & Tim Crowley, Governor's Office
Lew Dodgion, Environmental Protection
Diana Weigmann, State Science Advisor
Leo Penne, Nevada, Washington Office
C. Gertz\ Don Elle, DOE/NV
Ann Beauchesne, NGA
Local Government Representatives


DOE Weapons Complex

    a  The DOE Weapons Complex is generally described as consisting of 15 major nuclear materials development and manufacturing facilities located in 10 different states. The complex produced nuclear weapons through a series of integrated manufacturing activities that included: mining; milling and refining uranium; isotope separation of uranium; fuel and target fabrication for production reactors; reactor operations; chemical separation of plutonium; component fabrication; weapons assembly; and weapons testing.

Project Baselines

    b   DOE has identified 353 "baselines" that define project specific "scope, cost and schedules" at 53 cleanup sites across the DOE weapons complex.

Shared Federal/State Regulatory Oversight

    c  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.

    d  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.

    e  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.

    f  Type B Accident Investigation Board Report of the December 15, 1997 Leakage of Waste Containers near Kingman, Arizona. (Note: Prior to the Kingman incident, on at least two other 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).

Life Cycle Cost Analysis

    g  Memorandum -- DOE Nevada Operations Office, Generator Low- Level Radioactive Waste Disposal Fee Reference: Memorandum, Dever to Distribution, 10/10/97, issued by Carl P. Gertz, Acting Assistant Manager for Environmental Management. 11/21/1997.

Intermodal Transportation of LLW

Transport of Low-Level Waste Through the Las Vegas Valley

    i  In 1997 alone, DOE reported that 782 shipments containing an estimated 850,000 cubic feet of LLW were received at the NTS. (DOE/NV Draft Annual Report "Transportation Mitigation" FEIS NTS and Off-Site Locations in the State of Nevada, February 1998 [DOE/EIS 0243])

    j  March 2, 1998 Letter from Robert R. Loux, Agency for Nuclear Projects to Frank DiSanza (DOE/Nevada). The letter contains the State's scoping comments on DOE's proposed Environmental Assessment (EA) for Intermodal Transportation of Low-Level Nuclear Waste to the Nevada Test Site.

Local Government Resolutions

    k  March 24, 1998 -- Boulder City, Nevada issues "Resolution 3117" requesting DOE to keep low-level radioactive waste shipments out of Boulder City and out of the Las Vegas Valley.

    April 1, 1998 -- City of North Las Vegas, Nevada issues "Resolution 2019" requesting DOE to keep low-level radioactive waste shipments out of North Las Vegas and out of the Las Vegas Valley.

    April 21, 1998 -- Clark County, Nevada -- A Resolution Requesting The Department Of Energy (DOE) to Avoid Placing an Intermodal (Train to Truck) Transfer Facility in Clark County, and to Avoid the Use of Highway Routes over Hoover Dam and Highway and Rail Routes In and Through The Las Vegas Valley for the Transport of Low-Level Radioactive Waste to the Nevada Test Site.

    April 30, 1998 -- City of Las Vegas -- A Resolution (R-40-98) Requesting the Department of Energy to Exclude the Use of Highway Routes over Hoover Dam and Through the Metropolitan Las Vegas Valley for the Transport of Low-level Radioactive Waste to the Nevada Test Site.

Specific Comments: Paths to Closure, Nevada Operations Office, February 1998

    l  See "Proposed Defense Programs Environmental Restoration Schedule and Budget, Fiscal Year 1999 - Completion, Nevada Test Site, Nevada". Bechtel Nevada, April 1998.

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