State Comment Letter -- Review of the Summary of Public Comments Related to the Environmental Impact Statement for a Geologic Repository at Yucca Mountain, Nevada -- August 1997

State Seal

Capitol Complex
Carson City, Nevada 89710
Telephone: (702) 687-3744
Fax: (702) 687-5277
Executive Director

August 22, 1997


Mr. Wesley Barnes, Project Manager
Yucca Mountain Site Characterization Office
P.O. Box 30307
North Las Vegas, NV 89036-0307

Dear Mr. Barnes:

On August 14, 1997, in response to a request by the State of Nevada, DOE's Yucca Mountain Site Characterization Office presented an update on the status of the Yucca Mountain Environmental Impact Statement (EIS) process for affected units of government in Nevada and California. As a result of that meeting and from the State's review of the "Summary of Public Comments Related to the Environmental Impact Statement for a Geologic Repository at Yucca Mountain, Nevada," a number of important issues were uncovered that will require serious consideration as DOE moves forward with its evolving EIS process.

    (1) The Summary report states (p.3) that four alternatives for the proposed action will be evaluated in the Environmental Impact Statement: three alternatives to implement the proposed action and the No Action alternative. The three implementing alternatives are for a low, intermediate, and high thermal loading design. The low thermal load would be accomplished by emplacement of less than 40 MTHM per acre; intermediate thermal load would have between 40 and 80 MTHM emplaced per acre; and a high thermal load would have more than 80 MTHM per acre emplaced.

    As we understand the current approach of the Yucca Mountain Site Characterization Project, a high thermal load (83 - 85 MTHM per acre) is being used as the design basis in the total system performance assessment, and this is not expected to be changed unless data collected from the heater tests in the Exploratory Studies Facility indicates that some other thermal load should be adopted as the design basis in order to meet repository performance requirements. The in-drift heater test, scheduled to begin in December 1997, is planned to have a duration of between 4 and 8 years, and prior to completion of that test there will be no scientific and engineering basis to confirm the current design basis thermal load, or adopt some other thermal load that could meet repository performance requirements.

    Given this information and the planned date of issuance of the final Environmental Impact Statement in August 2000, the three alternatives selected for evaluation do not appear to be "reasonable", as required by the NEPA regulations (40 CFR Part 1502.14(a)). The test of whether the selected alternatives are "reasonable" lies in whether the alternatives could be adopted and implemented by the Agency to meet the purpose of its proposed action. In this case, there will be no demonstrated technical basis to select any thermal load design at the time of the issuance of the Final EIS, and it will not be known which, if any of the alternatives is able to provide a waste isolation system that will meet performance requirements. While the current preferred alternative may be thought to meet cost and repository capacity expectations, this does not mean that it can be demonstrated to meet performance requirements any better than the other alternatives evaluated. If any of the alternatives can not be shown to be capable of meeting performance requirements they are not "reasonable" alternatives, because they are alternatives that would never be considered for implementation by the Agency.

    When this issue was raised in the August 14th meeting, we understood the DOE's response to be that each of the three implementation alternatives will be the subject of an equivalently mature total system performance assessment that will be reported in the EIS. We were not aware that there are current plans to fully assess three different thermal load designs at equal levels of detail. Moreover, without the support of comprehensive test data, there will be little confidence in any of the performance model results. Also there will be great uncertainty regarding which, if any, of the selected alternatives can meet the performance requirements.

    The selection of a thermal load design must be supported by a technical basis, and such a basis will not be available at the time of selection of the preferred alternative in this EIS. Thus, the EIS will be insufficient in that it did not evaluate "reasonable" alternatives as required by NEPA regulations.

    In view of current project site characterization plans that result in critical data needed to select a preferred alternative being unavailable at the time of issuance of the Final EIS, the Department should withdraw its proposed implementation alternatives and propose a new set of "reasonable" alternatives for evaluation. These new implementation alternatives should be the subject of a re-opened public scoping process.

    (2) With regard to the Land Use section of the Summary of Public Comments document (Section 2.2.5), the Issue Summary on page 17 ends with a sentence regarding ecosystem management at Yucca Mountain, the Resource Management Plan for the NTS, and the DOE's Land and Facility Use Planning Policy (DOE P 430.1). The topic is expanded upon in Table A.5 on Land Use, page A-25, in the comments summary document. The DOE policy at issue is implemented by DOE Order 430.1, Life Cycle Asset Management. The thrust of the scoping comment that led to the sentence in question was that the Yucca Mountain site should be included and addressed by the NTS Resource Management Plan. This issue is not mentioned in the General EIS Approach, page 18, for Section 2.2.5 of the comments summary document. We reiterate our support of the initial scoping comment regarding this issue, and failing to get attention through the Yucca Mountain EIS process, we will pursue the matter through other channels as well as to redirect your attention to the National Environmental Policy Act (NEPA) compliance process.

    Related to the above paragraph is Section 2.2.9, Biology, on page 20 and Table A-9, Biology, on page A-33 in the Summary of Public Scoping Comments. The Issue Summary on page 20 makes no mention of ecosystem management and protection regarding waste-generated heat. This matter would be addressed in a Resource Management Plan like that being developed by the DOE for the NTS. However, the General EIS Approach to the issue mentions only the biological component principally of the ecosystem at Yucca Mountain. We reiterate our support that the Yucca Mountain EIS process adopt an ecosystem approach to evaluate potential impact from waste-generated heat.

    This matter also arises in Table A.2-5 on Impact Analysis Process, page A-19 in Summary of Public Scoping Comments. The sub issue comments summarized in the table address the NEPA impact assessment process, sufficiency of baseline ecosystem data for the Yucca Mountain site, use of an ecosystem approach to evaluating potential repository impacts, and the use of subjective judgment to analyze impact in the absence of empirical information. These remain important concerns that received no attention under the heading General EIS Approach in the comments summary document. We reiterate our initial scoping comments in these regards and expect the DOE to address them in the EIS process.

    (3) Stakeholder and public participation in the EIS process would be greatly enhanced if information regarding specific ongoing and planned data collection and analysis activities were made available. While DOE has determined that a formal EIS implementation plan will not be released for public review and comment, the informal sharing of information about the EIS process (such as data collection activities, impact assessment approaches, integration of EIS-related work tasks, etc.) could improve the draft EIS by affording DOE staff and contractors insights and input from stakeholders and the public. At the same time, such informal information sharing would facilitate what is expected to be a daunting review task for stakeholders, allowing them to keep abreast of DOE work and activities as the EIS process moves forward.

    Such informal sharing of information would not obligate DOE to accept stakeholder input. It would, however, improve the quality of work on both sides and reflect the spirit of the National Environmental Policy Act as a vehicle for promoting informed public involvement in federal decisions. One relatively simple step DOE could take in this regard would be to provide affected units of government (and other stakeholders) with access to internal EIS planning materials (i.e., flow charts, etc.) showing DOE's current thinking about specific EIS activities that are required, what the specific data and analyses requirements are, how the various tasks/activities relate to one another, what the current schedule and time frames are for various activities, and other such information germane to the ongoing EIS process.

    Such informal information sharing is not foreign to the Yucca Mountain program. DOE routinely makes similar information on ongoing geotechnical studies and work tasks available to the State of Nevada, affected units of local government, the Nuclear Waste Technical Review Board, and other stakeholders. Establishing a similar informal relationship with respect to the EIS process would be a positive step and would demonstrate a real commitment to the spirit of NEPA.

    (4) In light of DOE's decision to formally evaluate the "Chalk Mountain route" for possible rail access to Yucca Mountain (announced at the 8/14/97 update meeting), DOE should examine the need to include the Department of the Air Force as a cooperating agency for the Yucca Mountain EIS. DOE will not be able to develop this rail spur, which crosses the Nellis Air Force Range in a southwesterly direction, without the active and cooperative support of the Air Force. Analysis of the proposed route will require not only engineering and cost evaluations, but also assessments of the potential impact that construction and operation of the rail spur will have on Air Force activities. Without the Air Force as a cooperating agency, such analyses may not be possible.

    (5) In DOE's "regional" transportation analysis, no provision is currently made to include an evaluation of highway and rail routes outside the borders of Nevada as part of the regional transportation system. This is a potentially significant flaw in DOE's approach to transportation impact assessment. It is especially problematic in the case of California Route 127, which is a potential route for spent fuel and high-level waste shipments coming to Yucca Mountain from California. CA 127 is a potential route that could be used without state actions designating alternatives because it is a direct route between Yucca Mountain and I-15. As such, the route must be considered as part of the "regional" system and evaluated in the regional transportation analysis.

    (6) With respect to DOE's regional transportation analysis, DOE announced at the meeting (see Wendy Dixon's Overheads) that public comment was being solicited with respect to "Transportation Discrimination Criteria" developed as a result of comments received during scoping. The criteria would be used to identify a preferred rail corridor to Yucca Mountain, an intermodal transfer facility location, and a heavy haul truck route. Conspicuously absent from the proposed criteria are any factors related to safety, public health, or risk. Also missing are factors that would discriminate among possible routes on the basis of socioeconomic impact to local communities and to the State as a whole. Given the nature of the material to be transported via a rail spur, intermodal facility, and heavy haul route, the greatest weight in any analysis should be given to public health, safety, and economic, social, and other impacts to communities and the State.

    (7) The revised scope of the EIS is now proposed to include two scenarios for the "No Action Alternative": one wherein DOE assumes "loss of institutional control after 100 years", and another that assumes DOE maintains institutional control indefinitely. There are several potentially serious problems with these scenarios. First, the assumption of loss of institutional control after 100 years does not appear to be reasonable or justified. Such loss of control would have to assume that the nation's electric utility companies will all have disappeared within a century and that the federal government abdicates all responsibility for waste at federal sites. There is no basis for such an assumption.

    Second, the use of these two scenarios with respect to the No Action alternative requires DOE to also analyze the other repository alternatives using the same assumptions. It would be inappropriate to evaluate the No Action alternative differently from the "Action" alternatives.

    (8) Despite receiving a significant number of comments urging DOE to assess stigma and risk perception impacts as part of the EIS analysis, DOE representatives at the August 14th meeting indicated that DOE categorically refuses to do so. A considerable body of existing research complied by State of Nevada and independent researchers over the past 12 years clearly demonstrates that Nevada is uniquely vulnerable to the type of negative economic and related impacts potentially associated with spent fuel accidents, either along highway and rail routes or at storage/disposal facilities. Given the unique dependence of Nevada's entire economy on the continuing ability to attract large numbers of tourists into the State each year and the vulnerability of such a tourist-based economy to stigma-induce economic impacts, any analysis that ignores the potential for the Yucca Mountain program to negatively affect economic conditions in the State will be inadequate and insufficient.

    (9) It is unclear just how DOE will address the implications of the current move to privatize the entire spent fuel and HLW transportation system in carrying out the analyses proposed for the EIS. The fact that DOE has abandoned its plans to develop and supply multiple purpose canisters for use in shipping spent fuel from reactors around the country to Yucca Mountain and will now rely on private industry and "market driven" factors to dictate what casks will be used and how the waste will be shipped adds enormous complexity and uncertainty to the system and to any analysis of possible impacts. The assumptions used for scoping about shipping containers, modal mix, etc. are no longer valid, and this fact calls into question the adequacy of the scoping process with respect to the national transportation analysis portion of the EIS and further reinforces our conclusion that formal EIS scoping must be reopened to assure adequacy and sufficiency of the final document and any decisions that flow from it.

    (10) DOE representatives also indicated that they do not plan any route-specific analyses as part of the national transportation assessment for the EIS. Given the fact that DOE knows the exact location of each reactor/waste generator site as well as the exact location of Yucca Mountain, it does not seem reasonable for DOE to avoid assessing transportation impacts along all of the specific routes that will likely be used for spent fuel and HLW shipments. Computer models for identifying both highway and rail routes from each reactor/generator location to Yucca Mountain are readily available and the technology is well developed. The type of generalized analysis that DOE is still proposing to undertake is inadequate and unjustified. It also does a great disservice to people living in specific communities along likely specific and readily identifiable shipping routes, who will not be afforded the opportunity to comment on impacts affecting them in the draft EIS.

    (11) The decision not to issue a draft - or even final - EIS implementation plan is unwise and potentially harmful to the conduct of a full and open public participation and review process. While DOE abandoned the internal requirement for such a plan subsequent to initiating the EIS process in 1995, the first-of-a-kind nature of the Yucca Mountain project, the long-term risks, the high level of public interest and concern, and the extraordinary complexity and nationwide scope of the project dictate that development and issuance of an implementation plan for review is both justified and necessary. In addition to the informal information sharing recommended above, providing public access and the opportunity to respond to the implementation plan would greatly assist DOE in carrying out the activities required for an adequate EIS and, at the same time, better prepare stakeholders and the public to provide informed comments once the draft EIS is released.

    We are concerned that DOE Yucca Mountain Site Characterization Office personnel and the contractors employed to develop the EIS are attempting to treat the Yucca Mountain EIS as just another NEPA document and to do only what is minimally required to satisfy the letter of the NEPA statute. Such an approach ignores the extraordinary nature, magnitude, duration, and potential for widespread impacts this project represents. The spirit of NEPA - and DOE's own self interest in preparing a complete and adequate EIS as part of the Yucca Mountain decision-making process - dictate that DOE go beyond what might be minimally required to assure that the final product reflects a comprehensive treatment of the entire scope of project effects, supported by a record of public involvement appropriate for the major federal action that Yucca Mountain represents. The recently completed EIS done for the Nevada Test Site is but one example where other DOE offices have gone beyond what may have been minimally required to expand both the scope of analysis and the level of public participation to assure preparation of an adequate document. The EIS process employed for the Waste Isolation Pilot Plant is another such example.

While DOE representatives at the August 14th meeting indicated that DOE has no plans to solicit additional comments in response to the Summary of Public Scoping Comments document or the ongoing EIS development process, under the National Environmental Policy Act, scoping is to remain open for public comment until the close of the comment period for the draft EIS. The preceding State of Nevada comments are, therefore, submitted as additional scoping comments made in response to the Summary document and to DOE's ongoing process for development of the draft EIS. These additional comments are both necessary and appropriate in light of the DOE decision not to respond in detail to the comments addressed in the comments summary document nor at the August 14th update session. As long as the issues addressed by previous scoping comments remain unsettled, Nevada insists that the DOE entertain and consider additional comments as part of the formal scoping process for the Yucca Mountain.

Should you have questions regarding these comments, please feel free to contact me.

Robert R. Loux
Executive Director

Governor Bob Miller
Nevada Congressional Delegation
Affected Units of Local Government and Indian Tribes
Nevada Commission on Nuclear Projects
Nevada Legislature's Committee on High-Level Radioactive Waste


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