Forwards DOI Request for LLNL Tritium Tests at Ward Valley

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March 19, 1996

NOTE T0: X. Stablein J. Austin ; C. Paperiello M. Bell ' J. Greeves J. Holonich M. Federline B. Reamer M. Weber C. Cameron P. Lohaus J. Kennedy P. Sobel FROM: Nelson,[[[ SUBJECT: DOE STAFF POSITION ON DOI REQUEST FOR LLNL TRITIUM TESTS AT WARD ! VALLEY !

The attached staff position paper was provided to us by Terry Plummer, ! DOE, last week and is forwarded FYI.

; Attachment: As stated | | l,

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' . . I 1 * , . . i. > !. 4 DEPARTMENT OF THE INTERIOR REQUEST FOR LAWRENCE LIVERMORE NATIONAL LABORA'IORY i 70 i PERFORM TRTITUM TF.STS AT WARD VALLEY, CALIFORNIA | f FACTS / BACKGROUND , i - On February 23,1996, John Garamendi, Deputy Secretary of the Depiu unent of the Interior, requested the participation of the De,partment of Energy in contracting with the Lawrence i Livermore National Laboratory to perform tntium tests at the State licensed low-level radioactive waste (LLW) disposal facility in Ward Valley, Califomia.

* On Demhn 15,1995, Secretary O' leary denied a similar request dated June 8,1995, : from Senator Boxer, (D-CA). 'Ihe Secretary stated that,"We believe the State of California, in its ! licensing role as authorized by the Nuclear Regulatory Commission, should determine how to implement the National Academy of Sciences' recommendations. If the State Mermines that further testing is needed based on analytical services unique to the Departmw of Energy, we will consider such a request." l ! + In response to an earlier request of Senator Boxer, Secretary Babbitt asked the National ! Academy of Sciences (NAS) to examine several key safety related issues of the site. On May 11, 1995, it announced that while "the potential transfer of contaminants through the unsaturated zone to the water table is highly unlikely...the committee agrees that additional analysis needs to be i done. The majori,ty of the committee believes that this could be donc during constmetion and | operation of the site." The majority further concluded that contamination of the ground water i beneath the site was " highly unlikely" and that the project posed no realistic threat to the Colorado River.

* The National Academy of Sciences recommended that a more complete knowledge of ; background tritium levels be obtained over time by using " additional analyses and data from tracers such as 36Cl." Based on the NAS report and on input from other scientists familiar with the . project, Interior's focus on tritium tests of questionable technical reliability appears misplaced. The timing also appears out of context with the Academy's recommendations which focus on improving the States' continuing performance assessment work ; not as a ore-appmval litmus test of site suitability.

. . On September 6,1995, Jay Davis, Associate Director of Environmental Programs at the Lawrence Livermore National Laboratory, stated in a reply to a letter from James Tripodes, Chair of the California Radioactive Materials Management Forum, that "I agree fully with your statement that tritium is not a good measure of moisture infiltration in arid regions." Mr. Davis continued,"I agree fully that the California Department of Health Services should determine what additional tests, if any, should (be) made, when they are necessary, and who should do them. They have the authority and responsibility in this matter."

- Public Law 99-240, the low-Level Radioactive Waste Policy Amendments Act of 1985 (Amendments Act), required each state to provide for the disposal of LLW generated within its borders by January 1,1993. It also required the Department to provide ongoing technical assistance to states develeping LLW disposal capacity, subject to Congressional appropriations.

* Under authonty of the Nuclear Regulatory's Agreement State Program (1959 Agreement |

! States Amendmen: to the Atomi.c Energy Act of 1954) Califomia issued a license for the disposal site in September 1993 that was conditioned upon the transfer of the land from the Bureau of Land Management. The license has withstood all coun challenges including a January decision by the | California Supreme Coun to decline review of an Appellate Court ruling which found the opponents' challenges were "without merit."

+ Califomia has committed in writing to perform all tests recommended by the NAS after the land is transferred.

- In a letter to the Director of the Lawrence Livermore National Laboratory, legal counsel to US Ecology, Inc., the designated licensee, states that, "this action may expose the Laboratory to damage claims by US Ecology, Inc.....the State of California....the other Southwestern LLRW Disposal Compact member states (Arizona, South and Nonh Dakota), and the Compact's LLRW generators." In addition, the letter states that,"It is inevitable that project opponents will challenge the Laboratory's testing protocols and procedures, as well as any results produced."

- Governor Pete Wilson stated in a February 16,1996, press release that,"If the White ; House and the Depanment of Interior continue to stand in the way of California's comphance with the LLRW Policy Act, then the Act has been rendered unworkable and must be replaced with a new law that gives this responsibility to the very federal officials who now refuse to leave it to the j states."

DJSCUSSION |

6 Since the first national low-level waste legislation was passed in 1980, the Department has established protocols to ensure that requests for technical assistance would be consistent with the ' intent of the legislation. One of these protocols requires that requests for technical assistance come ) from the State or compact officials directly involved in complying with the legislation. Not only is ; this request from the Depanment of Interior clearly not technical assistance to States and compacts under applicable legislation, it is in direct opposition to Califomia's decision on how to implement the NAS' recommendations and may be contrary to the interests of the private firm which has invested more than $60 million of its own funds, consistent with existing law, to obtain a license.

- California and its licensee are adamant that the licensing process was thomugh and that the current requests by the Department of Interior are based solely on politics and not the health and safety of Califomians. California's 100,000 pages of administrative record on Ward Valley has been upheld by the State Supreme Court.

- California is the first State to issue a license since passage of the Act and under NRC's 10 CFR Pan 61 regulations. Should we not support an agreement state that has met all regulatory requirements, the Department's relationship with the Nuclear Regulatory Commission could be unnecessarily strained and negative signal would be sent to other States currently involved in the licensing process. A failure to suppon Califomia would cast a chill on future effons to implement both the law and the regulations and increase the likelihood that Congress would have to revisit the 1985 Act, an action that Congressional leadership has repeatedly refused to do since the Act's passage. I Therefore, delays imposed on'Califomia by the Feds will no doubt raise the ire of Congress and thnist DOE in the middle of the controversy to the extent we participate or support such delays.

- Interior's concern that the facility lacks an environmental monitoring system has no basis ; in fact. DOE assisted the State in designing the monitoring system required by license which | improves upon the state of the an as reflected by current practices.

- The long, productive relationship with the NAS and the National Research Council, could .

' . also be undermined if DOE ignores the NAS' recommendations on both the uming of the tests and which tests should be performed to confirm site characterization findings.

* The $150,000 estir.iate for the work covers only analyzing the samples delivered to

. Lawrence Livermore. Su'ostantial additional costs would be incurred in sample preparation. It is also unclear at this time that Quality Assurance requirements have been factored into the estimates. These costs would be bome either the Department of Interior or the Department of Energy if the tests if were preformed now. California would pay for them if the tests were to proceed after the land is transferred.

* Given the time necessary to organize the work, take the samples, and perform the analyses under an appropriate Quality Assurance program, it i.4 highly unlikely that the tests could be done within the four months envisioned by Interior.

* This is a no win situation for the Deparunent and Lawrence Livermore. If the results of the testing are favorable, past history indicates that opponents will contest the results and possibly sue. If the results are not favorable, California and the states comprising the Southwestern Compact region could join US Ecology in a suit.

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Memorandum

TO: John Greeves FROM: Doruta Horn

DATE: August 20,1996 SUBJECT: Ward Valley Project

1 -(. The attached is being sent to you for your information.

Ifyou have any questions, please let me know.

| |

| ^h i g$8 >; w c g[ from the desk oL /[h, #$+ f Donna M. Horn (f Governrnent Affairs Coordinator U5 Ecology,Inc. 929 N. Val Vista Drive Suite 107142 Gilbert, AZ 85234

800-409 2251 602-507-2251 fn: 602-507-8469

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l . . sTAM oF cEl_f. ""^iTH AND WELFARE AGENCY PEM WluiON, Govi DEPARTMENT OF HEALTH SERVICES

rwr44 e smarr i

P.o. scK ter32 , sAcRMeno, CA sease.7sto '

(916) 657-1425 July 11, 1996

Mr. Edward Hastey State Director U.S. Bureau of Land Management 2800 Cottage Way

; Sacramento, CA 95825 l | 1 WARD VALLEY SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT

| Dear Mr. Hastey: On May 17, 1996 the Bureau of Land Management (BLM) issued a "Public Workshop Notice" stating that BLM is preparing a Supplemental Environmental Impact Statement (SEIS) regarding the , sale of federal land at Ward Valley to the State of California | and inviting the public as part of a scoping process to " identify any new information or issues to be considered in the document." BLM also issued a Notice of Intent to prepare the SEIS.

|' The California Department of Health Services (DHS) is the state agency which applied to purchase the Ward Valley land. strongly objects to the preparation of the SEIS. DHS I As the enclosed discussion paper prepared by program and legal staff indicates, none of the "information" relied upon to justify the SEIS is I "new" or suggestive of any environmental effect not previously | analyzed.

| ' Therefore, the SEIS is completely without legal authority or justification. The remarks contained in this letter or in the enclosd materials are not intended and should not be construed in any way tr land legitimacy to a process which is otherwise entirely illegitimate. The delay of the Ward Valley project caused by the SEIS process will be considerable. Ae an agency responsible for the protection of public health and safety, DHS is seriously concerned about these delays. For nearly three years many generators of low-level radioactive waste (LLRW) within i | California have had no place in which to confidently dispose of l | their LLRW. | Consequently, LLRW has been accumulating in numerous

. locations around the state in storage facilities which are much j more vulnerable to civil and natural disasters than the Ward I

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| Mr. Edward Hastey Page 2 ;

Valley facility. An event such as a fire or earthquake could cause a significant release of radiation to surrounding communities. The only reason this risk to public safety pe.=ists is delay of the land transfer attributable solely to BLM and the Department of the Interior. The fact that these delays cannot be justified, legally or scientifically, makes them unconscionable. DHS firmly believes that the dEIS amounts to nothing more than a fishing expedition in search of information which could somehow justify the purely political objections of the Interior Department to this project. It is the position of DHS that BLM at present has all the information about the environmental impacts of the Ward Valley project necessary to make a decision whether to transfer the Ward Valley land. Rather than indulge in an unnecessary and wasteful expenditure of public and private |. resources to gather more information, BLM now has an affirmative | obligation to make a decision one way or the other. | ! Please contact Peter A. 3aldridge, Senior Staff Attorney, at d (916) 657-3877, if you have any questions.

I Sincere y, ' $ND ' S. Kimberly Belsh6 Director cc: The Honorable Pete Wilson | Governor of California State Capitol Sacramento, CA 95814

, Health and Welfare Agency 1600 Ninth Street, Room 460 Sacramento, CA 95814 .

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I DEPARTMENT OF HEALTH SERVICES COMMENTS ON NOTICE OF INTENT TO PREPARE SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT (SEIS) for i TRANSFER OF FEDERAL LAND at

, WARD VALLEY

, On May 17, 1996 the Bureau of Land Management (:BLM) issued a "Public Workshop Notice" stating that BLM is preparing a Supplemental Environmental Impact Statement (SEIS) regarding the , sale of federal land at Ward Valley to the State of California and inviting the public to aidentify any new information or issues to be considered in the document." Notice of Intent to prepare the SEIS. BLM also issued a BACKGROUND , The State of California originally applied to obtain the Ward Valley site through the indemnity selection process. In April, 1991, a joint Envir 'n.nental Impact Report / Statement (EIR/S) was issued. Thit 'incument analyzed the environmental impacts of the proposed fed-ral action to transfer the Ward ' Valley land to the State for use as a low-level radioactive waste (LLRW) disposal facility. Appendices to the EIR/S included the

3 comments received and the responses to those comments prepared by i BLM and the Department of Health Services (DHS). In November, | 1991, the U.S. ' Fish & Wildlife Service (USFWS) issued a biological opinion, as required by the Endangered Species Act, which concluded that the project would not threaten the existence of the desert tortoise as a species.

: Thereafter, the method of land transfer was changed from i indemnity selection to direct purchase under the Federal Land ; Policy and Management Act (43 U.S.C. , 51701, et seq. ) (FLPMA) . Under FLPMA, the Secretary of the Interior may sell a tract of ; public lands if the Secretary determines that the sale will " serve important public objectives." (42 U.S . C. , 51713 (a) (3) . )

, BLM determined that this change in the land transfer mechanism ! justified the preparation of an SEIS. That SEIS was completed in ' September, 1993, the same month in which DNS issued a license for the project. , No transfer of the land occurred, however. There followed a series of procedural demands. During this time, critical habitat

, for the desert tortoise was designated; the Ward valley site was i included in the designated critical habitat. The Secretary subsequently requested a study by the National Academy of Sciences (NAS) of issues related to the potential for contamination of ground water and the Colorado River, and impacts to the desert tortoise and vegetation.

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! The report of the NAS was issued in May, 1995. that contamination of ground water or the colcrado RiverIt foundwould be : ahighly unlikely." ! Some recommendations were made which the NAS believed could be implemented during construction of the project. i Still no land transfer occurred. Notwithstanding the ! Governor's express commitment to implement the substantive ! recommendations of the NAS, the Secretary proceeded to negotiate : an agreement with the State containing commitments to implement ! the recommendations. In october, 1995, the state offered the . secretary a signed agreement containing these commitmente. | . $ Nevertheless, these negotiations reached an impasse in November, 1995, due to demands by Interior for ongoing re | 4 on issues for which Interior has no expertise. gulatory oversight

: In April, 1996, the Secretary announced that Interior would , have testing conducted at the Ward Valley site, and that a second j SEIS would be prepared. However, Interior has been compelled to j seek the assistance of the Department of Energy, Lawrence i Livermore National Laboratory, and an outside panel of | consultants to determine what tests to perform, and how to j perform them. ; j DISCUSSION

. | The National Environmental Quality Act (NEPA) (42 U.S.C. , ; 54321, et seq.) does not specifically provide for an SEIS. Under ! the regulations of the Council on Environmental Quality, an SEIS j is required if there are substantial changes in the proposed ; project, or significant new circumstances or information bearing i on the proposed action or its impacts, relevant to environmental ~ concerns (40 C.F.R. 51502. 9 (c) (1) ) . None of the examples ! ! provided in the notice of intent to prepare the SEIS appears to , justify an SEIS under the applicable standards, particularly as j NEPA and the regulation have been interpreted by the courts. ! i | As you know, there have been no substantial changes to the Ward Valley project. Thus, the stated justification for the SEIS is that new information has come forward which deserves analysis and opportunity for public comment. However, it is well-settled that an SEIS is not needed every time new information comes to light. The new information must demonstrate that the federal action will affect the quality of the human environment. (liuah v. Oreaon Natural Ramources council 490 U.S. 360 (1989) . ) BLM cannot simply rely upon an assertion that there is new information. It must also consider the environmental significance of the new information, its probable accuracy, and -the degree to which BLM has considered the information and evaluated its impact. (warm sorinam Dam Task Force v. Gribble 621 F. 2d 1017 (9th Cir. 1980).)

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The allegedly new information on which BLM relies to justify the SEIS for the Ward Valley land transfer includes: 1) * the May 1995 National Academy of Sciences (NAS) Report; 2) the results of tritium and other testa yet to be conducted at the sitei 3) information about tritium migration at Beatty, Nevada; 4) other evidence of radioactive and other waste migratir # rom Beatty; 5) Native American concerns and rights;

. 6) the designation of the site as critical habitat for the i desert tortoise and the 1995 U.S. Fish and Wildlife Service Biological Opinion evaluating impacts to the tortoise; 7) the U.S. Environmental Protection Agency (EPA) report on the effects of airborne releases on desert tortoises (a document relied upon by the Biological opinion); ; 8) a hydrogeologic report commissioned by the Metropolitan Water District of Southern California (MWD) ; 9) other information. submitted by the public. None of these items justify an SEIS. None of them describe ' new information. Often, the allegedly new information is new analysis of information which existed at the time of the EIR/S or SEIS. In fact, each of the issues described were thoroughly analyzed in both those documents. In many cases, BLM apparently has no new information, and is intends to use the SEIS process as a fishing expedition to determine whether there is any. Issues Related to the Colorado River

. Items 1 and 8 are reports which analyze issues addressed in ' the EIR/S and SEIS, and which conclude that the Ward Valley project will not have a significant effect on the environment.

Item 1, the NAS Report, concludes that contamination of the Colorado River or groundwater beneath the site is " highly ; unlikely." (" Ward Valley: An Examination of Seven Issues in Earth , Sciences and Ecology," (1995) National Academy Press, Washington, D.C., p. 2.) This is the same conclusion which was reached by BLM in the EIE/S and SEIS. (Attachment 1, EIR/S, Comment Response 36.2; Summary of Comments from June-August, 1991, Comment Period on Final EIR/S and Department Responses, SS.1, p. 48-52; SEIS, p.11.) The NAS report discloses no significant effect on the environment, and therefore does not justify a

. second SEIS. Item 8 is a contractor's draft report prepared for the Metropolitan Water District (1603) by Geoscience Support Services (Geoscience) but never approved by the MWD. DHS prepared comments to the contractor's draft report prior to the release of the NAS report. A copy of those comments is attached. (Attachment 2, " Technical Evaluation of Report Entitled

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'Hydrogeologic Review of the Proposed Ward Valley Low-Level < Radioactive Waste Facility' Prepared for the Metropolitan Water District of Southern California by Geoscience Support Services, { | | Incorporated," California Department of Health Services, April ' i 27, 1995.) l ,

| It is completely inappropriate for BLM to rely on the draft s Geoscience report to justify an SEIS. First, it is nothing more ' than a contractor's draft which has never been finalized or i received formal approval from the MND Board. Second, the draft Geoscience report has never received appropriate scientific peer I review; |

| the draft was simply referred to the NAS panel. |

Third, the draft Geoscience report fails to reach | conclusions which are scientifically valid. This is evidenced by | DHS's own Technical Evaluation of the Geoscience report and the ) fact that the NAS report concluded that the issues and concerns i discussed in the Geoscience Report are without scientific l support, even though the draft Geoscience report had been submitted to the NAS panal. In other words, this document cannot | { be considered scientific information, or a credible description 1 of environmental impacts because, even if we assume that the NAS has peer-reviewed the Geoscience report, the reviewers rejected the report's contents.

i Finally, the draft Geoscience report contains no new | information. It deals entirely with old concerns which have been | thoroughly addressed in the EIS and. existing SEIS. l Issues Related to the Desert Tortoise Item 1, 6 and 7 analyze issues addressed in the EIR/S and SEIS related to the desert tortoise, and which conclude that the Ward Valley project will not have a significant effect on the 2nvironment. The EIR/S describes measures by which the threatened desert tortoises at the site would be relocated. (Attachment 3, EIR/S

88 2.1.6.1.1, 4.1.6.1.5.) Thus, the nearest tortoise population 4 would be outside the fenceline of the facility. The EIR/S also ! describes the maximum radiation dosage to the public at the fenceline, and in every case the maximum dosage falls well below the regulatory limits for the human public established in 10 C.F.R. Parts 20 and 61. (Attachment 4, EIR/S, S4.1.4.7) There is no evidence that the adverse effects of radiation are greater in tortoises than in humans. The MPA report concludes that radiation from the facility will have no impact on the tortoises adjacent to the site.

! ' The EPA Report, and the mitigation measures described in the EIR/S, were relied upon by the U.S. Fish and Wildlife Service in ' the 1995 Biological Opinion to conclude that the Ward Valley

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project will neither jeopardize nor adversely modify the habitat , of the desert tortoise.

3 Each of these documents relied primarily upon lines of evidence which existed and had previously been addressed in the 3 EIS and the first SEIS. Because these documents disclose no significant environmental effect, and the same issues have previously been addressed in the EIS and SEIS, these documents provide no justification for another SEIS.

; Data From Future Testing of Ward Valley Site Item 2 described in the Notice of Preparation does not yet exist. Therefore, it is not new information. It isn't information at all, and cannot provide the basis for an SEIS. d Moreover, these tests will be performed only because the NAS i recommended them to resolve ambiguities in some earlier data. However, NAS has made clear in statements accompanying the , release of its report that the safety of the Ward Valley site is i strongly supported by several other lines of scientific evidence, , and that further testing is not necessary before the land is transferred. The chairman of the NAS panel stated at the time the NAS released its report and in a letter dated April 20, 1996 ' to Los Angeles County Supervisor Michael Antonovich (Attachment 5) that, in tha view of the majority of the panel. these tests could be conducted during the construction of the facility. In other words, this testing has no relevance to the land transfer ~ decisica, and provides no basis for an SEIS. .

; Data From LLRW Disposal Site, Beatty, Nevada

' ! Items 3 and 4 concern the LLRN and hazardous waste disposal ' i facilities near Beatty, Nevada. This is not new information about the Ward Valley site. It is not new information about the operations which are proposed for the Ward Valley facility. Thus, it is not new information about the project. :

' | The U.S. Geological Survey (USGS) has reported migration of 1 tritium and carbon-14 at the Beatty LLRW disposal facility, and i analyzed that migration in a separate report. The analysis concludes that the migration at Beatty likely resulted from the disposal of liquid wastes directly into trenches over 20 years ago, and the practice of leaving those trenches open, which ' allowed the accumulation and infiltration of precipitation. (Factors Af fectina Tritium and Henrbon Distributions in the Unsaturated Zone Near the Low-Level Radioactive-Waste Burial Site South of Beattv. Nevada. ADril 1994 and July 1995," USGS Open-

< File Report 96-110, p. 1.) In a memorandum to BLM dated February 14, 1996 (Attachment 6) summarizing the conclusions of these reports, USGS Director Gordon P. Eaton stated: ,

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. "Becauss of the differences in waste-burial practices at the Beatty site compared to those intended for the Ward Valley site, and the previously mantioned uncertainties about the transport mechanisms at Beatty, extrapolations of the results from Beatty to Ward Valley are too tenuous to have much Sglintjfic valug." (Emphasis added. ) . This being the caso, the Beatty reports on tritium and carbon-14 , migration do not constitute information bearing upon the environmental impacts of the Ward Valley land transfer, and therefore do not justify an SEIS.

DHS has received a report from its technical consultants

. entitled " Analysis of Tritium and Carbon-14 Migration in the ' Vadose Zone at the Beatty, Nevada, Low-Level Radioactive Waste

, Disposal Site" (March, 1996). The report advises that the migration at Beatty can be attributed to the historic liquid waste disposal. It concludes:

4 "The Beatty experience will not be repeated at the Ward Valley LLRW disposal facility because of differences in (1) regulatory agencies, (2) regulatory requirements and licensing conditions, (3) site geology and hydrology, (4) design and waste management practices, and (5) site ; monitoring, especially vadose zone monitoring." (p. 7-2.) A copy of that report is included under Attachment 6.

. The fact is there will be no similar disposal of liquid I waste at Ward Valley. Under License Condition 70, class B : tritium waste will be limited to very small, sorbed quantities, 1 packaged in double containment of glass, aluminum or stainless steel, surrounded by absorbent material or concrete, and welded shut (see Attachment 7). This, and the general prohibition on the disposal of liquid waste at Ward valley, will be enforced by full-time, on-site inspectors. After the State of Nevada established a similar regulatory presence at Beatty, Nevada, the . disposal of liquid waste did not recur. There is no evidence that LLRN properly disposed at the Beatty facility has caused any 4 migration. Therefore, the information about tritium migration at the Beatty, Nevada facility is completely irrelevant to the expected performance of the Ward valley facility. ; The disposal of liquid waste at the Beatty facility is not - new information. These events are well-documented, and the documentation existed at the time the EIR/S and the first SEIS were prepared. Interested persons could easily have provided this information prior to the preparation of either of those : documents had they considered the information relevant. of course, if differences between the Beatty and Ward Valley low-level radioactive waste (LLRW) facilities make migration at ; 6 . - -- .. .- -. .. .-. .- ._ - - - . - .-. - . . - ._ -- ~ u. . m o. a. g ag,g

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4 Beatty irrelevant to Ward Valley, any information of migration at the hazardous waste facility at Beatty is equally irrel'evant. The Ward Valley facility will not receive hazardous waste or } ' radioactive mixed waste. (Attachment 8, License Condition No. 18'.) The Beatty hazardous waste facility is subject to different - requirements under the Resource Conservation and Recovery Act ; ' than the Ward Valley LLRW disposal facility, which is subject to the Atomic Energy Act and the regulations in Parts 20 and 61 of title 10 of the Code of Federal Regulations. Any information of

. migration of the Beatty hazardous waste facility, therefore, has ;_ no bearing on the environmental impacts of the Ward valley j facility or the land transfer. It too provides no justification : for the SEIS. 1

|' Native American Issues l Item 5 was already addressed in the EIS and first SEIS. I ? Native American concerns were discussed in section 3.1.10 of the ; EIS, in the response to Comment 37.3 of the EIS, in 5 5.9 of the j Summary of Comments from June-August, 1991, Conment Period on j Final EIR/S and Department Responses, p. 66-67, and in the

. response to Comment 13 of the SEIS (Attachment 9). In fact, ! Comment 13 ' makes reference to section 3.1.10.2 of the EIS. DHS I is unaware that any tribe has brought to light any new 4 information about the Ward Valley site that were not addressed in

, the EIS. BLM's desire to ascertain whether there is any new or i j additional information related to Native American concerns does ' , not justify another SEIS, and provides further evidence that the current SEIS process is simply a fishing expedition for issues, rather than an analysis of new information. | , d ! Information Submitted by the Publie ' .

' The only remaining justification for the SEIS is BLM's | request that the public provide BLM with information. In other ! words, the SEIS is being prepared in the absence of the new I information which would serve to justify it, but it is BLM's hope ! that during the process some justification will arise. The |

public, of course, has always been able to provide BLM and DHS . with information. It is not necessary to prepare an SEIS to | enable interested persons tc submit new information. BLM's request for information not only fails to provide adequate , justification for the SEIS, it underscores the fact that no ' justification exists.

CONCLUSIQH The notice of preparation of the SEIS contains no justification for the preparation of the SEIS. In the absence of ade pate justification, it must be assumed that the existing EIR/S and SEIS contain all the information BLM needs to prepare a ; well-reasoned record of decision regarding the land transfer.

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That record clearly supports transfer of the land to DHS. BLM ! should make that decision on the record which currently exists.

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. i i j us semesy.ine. 2 - seswesinesener.sWm E t noenee.cenene saans 1 81H3N048 - . einser

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i ; July 15,1996 ! ! | BY HAND DRIJVERY 1 i j Ward Valley LLRW Coordinator i U.S. Bureau of Larxi Management ! 2800 Cottage Way j Sacramento, CA 95825

: ) Re: C--= -- R**nrdine Sunnlemant=1 Enviv==1 Imnart Statamant i , On Pmonma! To Transfer 1.000 Acres of Pnh1ic Imad for Ward Vallev ; bw-I2 vel RadiMye Waste DLenneal Facility . 4 i

! To Whom h May Concern: \ - | |, On May 17,1996, the U.S. Bureau of Land M===_-= ant (*BLM") annannmA | that it was r ginge a second Supplemental Envirnnmental Impact Statement ("SEIS") under | the National Environmental Policy Act, 42 U.S.C. I 4321 g mg. ("NEPA"), for the j proposed transfer of 1,000 acres of public land near Needles, California for the Ward Valley i low-level radioactive waste ("LLRW") disposal facility. BLM stated that the purpose, of the | SEIS was "to analyze new information that has been generated or additional new'information i that the public can provide on this proposal." US Ecol Inc. ("US Ecology"), ;

; California's licensee to construct and operate the Ward facility, strongly objects to the | '

| . iemanm of yet another unnemanry and unwarranted SEIS fbr the land transfer, the sole j effect of which will be to Airther delay this project. 1

| L BIJd Han Complied With All NEPA Raquiramants Argi Any Additional ! { Environmental Review SerYes Only To Further Dalav The Pmiect : - , - 4 As the long history of this project demonstrates,.the proposed transfer of 1,000 l acres of federal land in Ward Valley for the LLRW fa6111ty has undergone comprehalve environmental review in full compliance with NEPA. In light of this broad and thorough ) ~ ! public review, the proposed SEIS is imn=a==ry and .unwarrtated. ' - - . , . .s.

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2 Ward Valley LLRW Coordinator i ; July 15,1996 _ l Page 2

! A. NEPA Review Of This Proiect Raman In 1987 i ; On August 10,1987, BIM and the California Dep-ment of Health Services

, ("DHS") executed a Memorandum of Uadact== ling for Preparation of a Joint Environmental i Study I.ow-I.evel Padlaartive Waste Disposal Project ("MOU") regarding the preparation of ; a joint environmental impact report ("EIR"), the type of docannant required by the California i End - _---21 Quality Act ("CEQA"), and environmental hapset mentement ("EIS"), the type i of darumant required by NEPA, for the land transfer and construction and operation of the facility. Under the MOU, the EIR/S was to analyze "the : ;+1 to the environment of operation a low-level radioactive waste ('LLRW") disposal site in the California desert area, : as well as alternatives thereto, tarkding, but not limited to air and water quality and land use ; imaaeta at the proposea location and alternative locations." : h ' ' Pursuant to Paragreah 4(d) of the MOU, BLM agreed to cooperate with DHS and local agencia= in establishing a mumm 11y agreeable timetable'for canfarmi== with the requirements of California law in estabhshing the facility, and to "use best efforts to comply with the indicatad timetable."

| Based on site M& investigations and detained analyses, US Ecology and DHS determined that the Ward Valley candidate site area was the technically superior site, i and named that location as the project's preferred site in 1988. This decision was based in ! part on the fhet that BI.M's California Desert Conservation Area Plan of 1980 already clannihd the Ward Valley site as land suitable for conveyance to others for the purpose of ' harmnious waste disposal. BIR was informed of the decision and at the time was involved | in the preparation of the project's EIR/S. i 1 , On May 4,1989, BLM published a notice of leient to prepare a joint EIR/S with DHS for conveyance of land that would be used by the State of California 4or a LLRW

; disposal facility. 54 Fed. Reg.19244 (May 4,1989). At that time it was envisioned that the ! land wuld be conveyed to the California State Lands Camminaion through the indemnity i selection process. BLM further announced that it would hold four. public scoping m~*ings - i from May 30,1989 through June 1,1989 at four locations around the state to idendfy public j concerns regarding the proposed project. E

| In 1989, California listed the desert tottoise as a threatanad species. BIM i previously had considered the desert tortoise a sensitive species and clanalflad the Ward { Valley site as " crucial habitat" for tbs desert tortoise. At the same time, the,U.S. Fish and j Wildlife Service ("PWS") was considering listing the desert tortoise as a federal endangered j species, and did so on August 4,1989. In light of these fhets, DHS convened a desert

_ , tortoise woddng group in which BLM and FWS, among others, p=9- ^- i. By. letter dated ! D a-x 8,;1988, BIM State Director Ed Hutey. informed.DHS that the 's; potential I 2$ N

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. : July 15,1996 - . Page 3 i ! desert tortoise im.e could be mitigated, and that this factor would not pmbibit | ! establishment of a LLRW disposal facility at the Ward Valley site. |- | s Based upon that determination, US Ecology conducted sienihat and { extensive investigations of the property to hina whether it would meet the perfonnance standards sp-iri-i in the federal and state licenslag standards. BLM and DHS j simultaneously continued their analyses under NEPA and CEQA.

! In 1989, US Ecology submitted its license application to DHS for establishi"F 4 a LLRW disposal facility at the Ward Valley site. i | In June 1990, BLM and DHS published the project's draft EIR/S. 55 Fed. | | Reg. 27511 (July 3,1990). 'Ibe draft EIR/S concluded that the Ward Valley site was the ! preferred location for the project, and that development of the project as pwpused would not ' have a signikant adverse impact on the environment. The draft EIR/S included a thorough ! - j analysis of desert tortoise impacts and an investigation of. potential !==ts on Native | ' American culturalissues. - |

1 On November 21,1990, FWS issued a biological opinion on the project which ; conchided that it would notjecpigs the continued crimance of the desert tortoise. On ! January 8,1991, the California Department of Fish and Game issued a cC,g opinion. : i ! i In April 1991, BLM and DHS published the project's Final EIR/S. 56 Ped. Reg. 21389 (May 8,1991). BLM affirmed that Ward Valley was the pi4M site of all the

, alternative sites considered, and identified no obstacles to the site's conveyance to the State. i DHS issued a draft license for the Ward Valley faellity in June 1991, and , j conducted license hearings and further hearings on the Final EIR/S in July 199h ! In the spring of 1991. Congresswoman Barbara Boxer, California Lieutenant Governor Leo McCarthy and California Controller Gray Davis - the latter two being two of - i , | the three enemimminners in charge of the State innds Commission - caaaatad la the primary to become the democratic nomines for Ssnator Alan Cranston's vacated seat in the United : States Senate. Congresswoman Boxer criticized her opponents on the grounds that their | actions supported the construction of a nuclear dump in the Mojave desert. In July 1991, the j State Lands Cr=nminaian withdrew its application for the Ward Valley facility, stating that j the DHS would have to acquire the land through other means.

2 I On July 13,1992, DHS filed an application with Mr. Hassey to purchase the i Ward Valley site by direct sale. On September 21,1992, the Department ofInterior : (" Interior") published a notice.in the Federal Reip- stateg,thatthe Ward Valley site was

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; being considered for direct sale under PI.PMA to the State of California for the siting of a ! LLRW disposal facility. 57 Fed. Reg. 43468 (Sept. 21,1992).

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j B. In 1992. BIM Pranared 'Ihe First N Par The imad -Tra-afer D--lea 'the I.acic Of Any Basis To Do So ; i | Over the objections of DHS and US Ecology, BLM decided to publish a j formal supplement to,the project's April 1991 Final EIR/S to evaluate DHS's decision to ; enhmit an application to Interior to pachase the Ward Valley sien 57 Ped. Reg. 41771 ! (Sept.11,1992). The Final ER/S diarn==ad the conveyance of the Ward Valley site by the

j inda===ity selection process. Although BLM conceded that the change in acquisition , methodology did not have an environmantal consequence, and thus did not legally require the i preparation of a sur y'satal ES under NEPA, BIAI nevertheless decided to supplement the j document. 4 1 On 6panber 11,1992, Interior published a notice of intent in the Federal | Register that BI.M was preparing' a supplement to the Final EIR/S for the Ward Valley site j and facility. 57 Fed. Reg. 41771 (Sept.11,1992). '1he notice stated that the SES would : analyze the change in the means of the proposed sale and conveyance of the, land from the ' ladamaity selection ps.cs; to the direct sale marhad, and would not address technical, scientific or health issues. Id. Written comments were accepted on the notice of intent until October 10,1992. Id. .

On October 23,1992, BLM lasued a press release advising that it was initiating a 60-day public comment period, haelaa3== October 30,1992, on a Draft SBS, and that cammants would be W_ through Decamher 28,1992. The press release reiterated that the Draft SMS would evaluate only the marhad of land transfer 'and not the environmental issues associated with the siting kself. 'Ihose issues were evaluated in a draft environmental impact report (NR) and EIS prepared jointly by Dy==ent of Health Services and BLM in 1991." A Fact Sheet dated October 23,1992, and apparently distributed with the press release, stated: ,

The supplement.to the Final MS must be completed I;ccause the original joint EIS/EIR identified and evaluated a state hviemnity selection as the method of

land transfer plannad. This abort supplement evaluates the change to a direct , land sale, headlad under a different Federal law.

Fact Sheet at 2. The Draft SES also stated in its Abstract that the Draft SEIS was necranary haemnaa "[t]he change in the mode of conveyance is subject to different regulations and procedures." * * :. .c.. un E ' s . :: .4 - - .%4.; :: .M..'.L.. : . - s p p .:: M .. - :v: - ? ? - " .' s .;. . . - ~ , . - M4 |y; 'w4 !@nm .. q, , . . - _ . ., . _ _ _ _ - _ _ . _ _ _ . _ _ . _ . ______. - _ - _ _ . _ _ _ _ - _ . _ . _

. ) | Ward' Valley 11RW Coordinator ; July 15,1996 , _, j Page 5 i * j On October 30,1992, the Environmental Pmtection Agency (" EPA") ; published a Notice of Availability of a Draft Supplement for the Ward Valley facility in the | Federal Register. 57 Fed. Reg. 59183 (Oct. 30,1992). The notice advised that comments | would be accepted by BLM through December 28,1992.

On November 12,1992, Interior and BLM published in ths Federal Register a j Notice of Availability of Draft Supplemental Impact Statament on Direct Sale of innd to j State of California, San Bemardino County. 57 Fed. Reg. 53772 (Nov.12,1992). The i ! notice stated that comments would be reasived undl December 28,1992, and reiterated that : there were no environmental impacts associated with the proposed change in the method of ! ' land transfer: ( ) The draft SES evaluates only a different proposed method of land conveyance | by direct sale. Since there is [ sic] no other changes from the final ER/EIS, ; except the proposed means of conveyance, the draft supplemental BS does not address technical, scientific or health issues.

! Id. The comment period on the Draft SBS expired on D amher 28,1992, j C. Intariar %=d Rf M Renaead On The f and Transfer In 1993 And Continna To

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, On Jarruary 7,1993, then-Secretaty ofInterior Manual Imjan issued a news ' release announcing his intention to proceed with the direct sale of the Ward Valley site to the State of California, observing that "[t]his land transfer has been actively underway for more than two years, and a final Environmenent Impact Statamant has been completed." On the same day, Secretary Imjan also issued a dda m1= tion that the disposal of the Ward Valley land by direct sale did not constitute a substantial change in the proposed acdonalevant to enyh6aar.tal concerns, or that there were any alP W =M new cirmm=*='= or information relevant to environmental concerns and beanns on the proposed action or its impacts;

- , redesignated the Final SBS as a " Supplemental Environmerdal A==== ment;" and made a Finding of No Si- :"=r Impact under NEPA with suspect to the change in land acquisition method tc direct sale.

On January 8,.1993, US Ecology wired the purchase price for the Ward Valley site to Interior on behalf of the State. On the same date, project opponents filed a complaint in the U.S. District Court, Northern District of California, alleging that the Ward Valley land. sale violated the fadoral P2xis.J Species Act, imwMr=='Mg the fact that the PWS aheady had issued a "no jeopardy" biological opinion on the project. Dggg Tartalaa at al. v. M==-1 Tuian. et al., Case No. C 93 0114 (MHP), U.S. District Court,

, Northern District of California (" Desert Tortoist"). The Desprt Tortoies plaintWs also - , : .,. ~;h - : ' hQ.Wy;. . ,. . ' . n [y~ , . .. . c.t.,d5${...f9. :s.g@ m . . x x.r.; . . <'3,. . , . . . . )| .

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Ward Valley LLRW Coordinator ' July 15,1996 - Page 6 | ' sought and received a temporary restraining order blocking Interior's scle of the Ward Valley land to California.

! On January 19,1993, Secretary Ixfan issued a Record of Decision formally approving the direct sale of the Ward Valley site to California for potential use as a LLRW . j disposal facility. In so doing, Secretary Imjan found that " disposal of the tract will service i ituportant public objectives by providing a regional disposal site for LLRW as provided for

| in the low-Level Radioactive Waste Policy Act [cientiaa. omittad], as amended, and the . Southwestern Imw level Radioactive Waste Disposal Cy Cet Act (Public Law | 100-712); develep=--e and operation of the facility will not result in - -- ==ry or undue - 3 degradation of resource values; qualifying language will be inserted in the patent to the State

4 of California resulting the land reverting to the Bureau of Land Management (BLM) if i certain assurances are not met; and the expressed preference of the Governor of California to acquire the public lands by duect sale is entitled to great weight when considering diffbrent j methods ofland disposal to the State of California." Secretary Imjan also rejected an ; i*- *y selection application that had been submitted by the State lands Commission on | hya>=hae 17,1992, for the apparent purpose of fmu-i, DHS's pwfumi acquisition of j * the land by direct sale.

} ~ ! On Jamdry 19,1993, California State Controller Gray Davis, the Commiwe j to Bridge the Gap and other plamhffs filed a second complaint against Interior contendina that Secretary Lglan had violated NEPA procedural requa- in conveying the Ward ; Valley site to California. CammI** to Bridea the n.a. et al. v. Mm=>al Lalan. et al., Case ' No. C-93-01% MHP, U.S. District Court, Northern District of California ("CBG Case").

: j Instead of defending the appropriateness of the land sale decisions in the i DassrLIortoise Case on February 18,1993, Secretary of Interior Bruce Babbitt responded i to the lawsuit by ram ladina all actions taken by fonner Secretary Lujan after December 28, j 1992 with respect to the Ward Valley land; agreed to take no formal action to transfer the : site without first providing plaintiffs with thirty days' written notice of any proposed action;

i , and voluntarily agreed to pay the pimindffs $69,000 in attorneys fees, costs and expenses. ; Secretary Babbitt also returned the purchase price paid for the Ward Valley site to US I. Ecology. i On May 7,1993, the California Court of Appeal ruled that the State of Califorms was not required to hold an adjudicatory hearing, or any other additional public or ' admhiatrative hearing, prior to issuing a license for the Ward Valley facilhy.to US Ecology. Optifamin Radioactive Materials Manneement Forunn v. Denartment of Health Services.15 Cal. App. 4th 841 (1993). ,

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| Ward Valley I1RW Coordinator -- ! July 15,1996 ' ! Page 7 i i On August 11,1993, in a letter to Governor Wilson, Secretary Babbitt

: requested that the State of California hold a public headng on the facility as a condition to 4 the transfer of the land from Interior to the State. Secretary Rabbitt acknowledged that the ! California courts had concluded that state law did not require an adjudicatory hearing on the project, and that such a hearing would be held 'to help me, in these unique circumstances, j discharie my responsibility under federal law (NEPA and PLPMA) in deciding on this j transtbr." Babbitt admitted, however, that "neither NEPA nor FIEMA requires a h>=-ine" ! and the results of such a ha** ins thus would not be judicially reviewable under federal law. | Sd.-y Babbitt noted in a press release announcing the public hearing request that such a j hearing was "a step beyond" the [email protected] of applicable federal law. i | On September 15,1993, BIM executed its Final Supplemental Envirnnmantal ! Impact Staternent to the Ward Valley In-Level Radioactive Waste Facility Final | Environment =1 impact Report / Statement (April 1991) ("First SEIS"). The First SEIS found | no federal impediment to a sale of the Ward Valley site to the State. BIN published a ; notice of availability of the First SEIS on September 24,1993. 58 Ped. Reg. 50047 (Sept.

4 24, 1993). : q j On September 16,1993, DHS cattified the project's Final EIR and issued a . ! license to US Ecology *to construct and operate the Ward Valley faellity. On the same day, ! Governor Wilson agreed in a letter to Secretary Babbitt to conduct an administrative hearing | on behalf of Secretary Babbitt in order to expedite Interior's land transfier decision. ,, Secretary Babbitt had indicated in his le,tter of /mgust 11,1993 to Governor Wilson that i terms of the hearing would need to be negotiated, but that the hearings could be concluded i and a land sale decision reached by the end of the year. Governor Wilson included in his , ! letter a proposal for conducting the hearing that would cumble it to be completed within the i four-Inonth timeframe promised by Secretary Babbitt. Governor Wilson also explained that i he had directed DHS to take action on US Ecology's license application to make the license i and its supporting dornmentation available to the public and thereby further addsess issues to be diaenmaad at the contemplated hearing. ! ' ! i ! Although Secretary Babbitt had acknowledged in his August 11,1993 letter to ' Governor Wilson that California state courts had ruled that an administrative adjudicatory hearing was not required for the Ward Valley facility, and that state court rulings were j inanalienkle to his decision to require an admininuative a4 judicatory haarine on the land ! transfer under federal law, he nevertheless stated in a letter dated November 24,1993 to ' Governor Wilson that he had decided to delay the federal hearing and a federal land sale ] decision "[b]acansa the [Los Angeles Superior] court is now being asked [by project i opponents] to order a hearing at least as compr=hannive as the one [ Secretary Babbitt had j asked Governor Wilson to hold)." Babbitt had written on August 11,1993 that the decision .. : of the state courts.was irrelevant to his land sale.dannalan yYet in his November 2401993 -

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! i i * ; . j Ward Valley 11RW Coordinator i July 15,1996- ! Page 8 . J , letter Babbitt wrote that "it seems to me the proper course is to await the outcome of the , state court litigation..." Secutary Babbitt continued to assert, however, that an evid-a% i hearing would be required on the project before Interior would transfer the land to i | California.

; On July 11,1994, BIM withdrew the Ward Valley site from agricultural entry j and mining for a period of three years to allow the State sufficient time to fully study its | proposal to use the land for a LLRW disposal facility. 59 Fed. Reg. 353267 (July 11, 1994). :

4 On October 28,1994, BLM issued to US Ecology a Rightaf-Way | Grant / Temporary Use Permit, Serial No. CA-34822, granting US Ecology the right to

: construct, operate, makt=k and terminate a site characterization study at the Ward Valley

site. . .i

| Two years after announcing that the land transfer could not take place until an. ; admhiatrative hearing was held, Sw&y Babbitt announced on May 31,1995 that he would not conduct an evidmiary hearing and would proceed with the land transfer. ; Secretary Babbitt stated in a press release that he had decided to proceed with the transfer of ! the Ward Valley site td California based on the results of an iadaaaadaar study conducted by | the National Acad=y of Sciences ("NAS Report") regarding several euscu-ental issues raised in a 1992 memorandum on the Ward Val ey facility. | !

- I' On July 6,1995, BLM rejected the ' "------+y selection #=*iaa -filed by the | State lands Commianian to obtain the Ward Valley site. 60 Ped. Reg. 35216 Quly 6,1995). | In so doing, BLM found that "the value of the Ward Valley lands for use as a low level waste disposal site is very high and meets a unique public purpose" and that rejection of the | ~ 1adamaity selection application would retain the Ward Valley site in federal ownership, i thereby allowing its transfer by direct sale to the State for use as a LLRW disposal site.

: - ! On February 15,1996, Interior publicly anmu=d its decialon to delay the i land transfer decision for at least another year. According to John Garammil, Interior i Deputy Secretary, this delay was necessary to allow Imeerior to conduct further tritnun testing : at the sits, and to anow the completion of a second Supplement to the Final EDUS to address i the tritium testing data and alleged sacred Native American shes in the vicinity of the i project. To date, no progress has been made to obtain'the fleid samples which would be t required to conduct such an analysis. ,

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II. There Is No Basis Far Panariar A Second SMS

! Under the Council on Envirnnment=1 Quality ("CBQ") regulations

, implementing NEPA, an agency is required to prepare a SBS gattif: ' | ! (1) 'Ibe agency makes substantial 4 in the proposed action that are ; relevant to envimamental concerns; or

(ii) There are signiC id now chcumstances or information relevant to j environmental concerns and bearing on the proposed action or its ; impacts. ? 1 ; 40 C.F.R. I 1502.9(cXIXi)-(ii). An agency may prepare a SEIS if it determinaa that "the j purposes of the Act will be Authared by doing so." 40 C.F.R. I 1502.9(c)(2). None of ; these cirmmatmanas is present here. ! | As the U.S. Supreme Court has held, an agency abould apply a " rule of i reason" in deciding whether to supplement and EIS. Marsh v. Orenon Natmul Perces j Council. 490 U.S. 360, 373,109 S.Ct.1851,1859 (1989). NEPA requires, only that an ; agency take a "hard lobk" at the environmental effects of its actions - =aa=2 Mag BLM and ' Interior pisinly have done during nine years of embs=-61 review of the Ward Valley | project.. Supplementation is not requhed every time any new information comes to light. "To require otherwise would render agency decistaamalring intractable, always awaiting |; ' tyiaw information only to find the new information outdated by the time a decision is j made." Marsh. 490 U.S. at 374,109 S. Ct. at 1859. Rather, a =n,Wai EIS should be prepared only if the new information is sufficient to abow that the federal action will affect ! the quallry of the human ewAumocra in a sien!ficaa* mannar or to a sienifienat extent not | already considered. Id. As demonstrated herein, none of the alleged new infonnation cited i by either BLM or EPA to justify a Second SEIS meets that standard.

' A. NEPA Does Not Raouhe A Second SEIS - i j In the Federal Register notice announc'mg BIMs intent to prepare the SEIS, i BI.M states that the SEIS will focus on new La*===An and cirmmatmae*a, including specific areas. A review of each of these areas, however, demonstratas that the informadon , ; in each of them either confirms information WW on these same environmental issues : reviewed in the Final EIR/S or the 1993 SEIS or does not constitute mienifie=M new j chcumstances or information relevant to envitonmental :T+-=. ! i .

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! - i i a | Ward Valley LLRW Coordinator L July 15,1996 _ j Page 10 , ! 1. May 1995 NAS Raport

: ! In May 1995, the National Academy of Sciences' National Research Council ! issued a report entitled " Ward Valley - An hamination of Seven Issues in Earth Sciences

! and Ecology" ("NAS Report"). The NAS Report was the result of an iadapandant, year-long , : review by the Commit **e to Review Specific .h and Technient Safety Issues Related to | ' the Ward Valley, California, Iow-level Radiaartive Waste Site, regarding the Ward Valley project. Secretary Babbitt c+- d==ioned the study on March 14,1994, and refused to make ! a land transfer decision untilit was complete. This action was taken over the objections of'

! US Ecology and others, who knew that the issues raised by the Wilshire Memorandum and j j Wilshhe Report were meritiess, who knew' that any objective review of the data would ' confirm that conclusion, and who therefore knew that the formation of the expert panel | i j would inevitably result only in a delay with no significant change to it. Indead, the report !

4 was not issued until May 1995, anhatantially exceeding the study's initial schedule. i i a. ThiWilshire Memnandmn b | ; The NAS Report panel was convened to aramina issues initially raised by j three United States Geological Survey ("USGS") =riantista - Howard Wilshire, Keith i Howard and David MiDer - in a memoranden dated June 2,1993 ("Wilshire | Memorandum") to Secretary Babbitt. 'Ibe memorandum reflected the personal views of its j authors and pmported to raise "three significant problems" regarding the Draft EIR/S: (1) ! paeaad*1 infutration of repository treaches by shallow subsurface water flow; (2) =iar= dan

. of contaminants through the unsaturated zone and into groundwater, and (3) potentist , |' I j hyhge, logic connection between the Ward Valley she and the Colorado River. Each of ! these issues had been carefully dierneaad in the Final ElR/S and had been the subject of | public mnment US Ecology obtained a copy of the Wilshire Memorandum and responded - ; to its allegations in a letter to Secretary Babbitt on June 25,1993. . ) BIM fully examined the Wilshire Memorandum and correctly concluded in its j First SEIS, dated Saata=har 10,1993, that concerns raised in the memorandum were without ' ' merit and did not include any new information ("After closely **=minia* the USGS memorandum, however, BLM can find no new inf ha or issues that were not aheady raised by the public and responded to in the April 1991 Final EIR/EIS").

b. The Wilshire Renort

< On December 3,1993, the authors of the Wilshire Memoranduni lasued a darunnant ermitted " Description of Barth-Scicace Concerns Regarding the Ward VaBey Iow- Ievel Radioactive Waste Site Plan and Evaluation" ("Wilshire Report"). The Wilahire

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Report pias=" a lengthier exposition of the same theories mised in the Wilmhire , , ; Memorandum.

! i A review of the Wilshire Report demonstrates that the arguments contained ! therein were not signi&=at new inforniation for NEPA purposes. First, the Wilshire Report i was prepared by three USGS employees expounding their own personal speculations with ! respect to the Ward Valley facility and with little expenence in radionuclide migration or i hydrogeology, and no experience in the radiological safety :! :.'he of potential : migration. The report was agg issued by the USGS, was g endorsed by the USGS in any ! way, and was not subject to standard USGS scientific peer review prudure applied to | official USGS reports.Y In fact, the USGS carlier had contributed its agency expertise to ; . Amig ja the Ward Valley fhcility's development by L'.-..:Wiug areas geographi< =11y suited to ! such a project, including Ward Valley, and by providing hydrologists to assist the State in ! designing monitoring programs to detect potential on site releases of radioactivity. The i Wilshire Report was simply an exposition by three individuals who hypothesized a series of ! highly unlikely radi=6n release scenarios and disagreed with the conclusions reached by ; BLM scientifk advisors and the DHS. i | Second, the " additional" issues allegedly raised in :he Wilmhire Report were i either analyzed in the EIR/S and/or were not signikaat. BIAf specifically made this finding

; in its initial December 1992 SE1S and in the subsequent 1993 First SEIS. DHS also

; specifically addressed and rejecsod the concern that the Colorado River might be ! mataminated by radionuclides migrating from the Ward Valley site prior to maldag its j ' license decision's. DHS found, based on substantial evidence, jd., that there would be j virtually no risic of contamination to either groundwater or the Colorado River r=*ing from i

: 1. On November 5,1993, Mr. Robert Hirsch, Acting Director of the USGE, wrote a j letter to Senator Boxer explaining that the authors of the Wilshirs Memorandum had been i acting strictly as individuals when they wrote their report, which had not been subject to the . ' - USGS review process 6='-71 to ensure the most accurats and infonned **chnien1 ' infor=% and that any follow-up report by the authors simnerty would not be subject to * such review. -

, i Ms. Nancy Hayes of Inserior similarly stated in a letter dated August 5,1993 that the ; autbots of the Wilshire Memorandum west expressing their own opinions and the i Memorandnm "does not reptesent an ofBcial position of the USGS." She further stated:

; " Prior to submitting their memorandum, these individuals did not consult with hydrologists ' of the USGS who are ihmiliar with the Ward Valley project or the USGS Branch of Nuclear * Waste Hydrology,;which has providad eachnical advion to the States on low-level radioactive ~i , waste disposal and 'coh research on the subject for over a decade.." w . .-co..g..

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| the migration of radionuclides from the Ward Valley site based on the depth of groundwater, ! the area's dry climatic conditions and the charactedstics of radionuclides (i.e. mobility, i longest half-life, highest total activity, and highest specific activity). DHS determined that ! the disposal of LLRW at Ward Valley imder expected conditions would have no signikant

; impact on groundwater directly beneath the site, let alone to the Colorado River.

The Wilshire Report analysis does not refute this contention in any ma=aingful '| manner, but rather theorizea "pamaad=1 pathways" to the Colorado River that ignore relevant information relating to the ability of radianneth to migrate fecun the facility to ! groundwater. DHS correctly determined that for such migration from the facility to occur, waste containers would have to be breached, the waste dissolved, and sufficient gnanHdan of water would have to be available to treu. rat the dissolved waste 590 feet to groundwater | i before the radioactive elements decayed naturally to safe levels. Evidence in the license | j record damanatrates that IlAW disposed at the facility is required by license conditions to ! be in solid form, packaged in containers made of steel, high density polyethylene or ! concrete, and placed in spei=11y constructed trenches designsd to avoid waste contact with water.

; i DHS also extensively analyzed whether radiammih could migrate to ; i i groundwater in gas phhse or by molecular diffusion. Even under the extreme, highly Improbabic assumptions used in "banading case scenarios," only extremely low l

|' concentrations of radionuclides could reach groundwater. Any r=d*ine exposure would be ! well below acceptable regulatory levels and these levels would themselves thrther diasipate | | , . ; with thne. i i Thus, the "patandal pathways" for impact on groundwater and theorized flow | ' from Ward Valley to the Colorado River poctulated by the Wilshire Report were not migni&aat to the issue of environmental protaction even if they did exist. Prior-to the license decisions, DHS determined, based on the information regarding migration cf radionuclides to groundwater, that any exposures to the public would be well below safe exposure levels. Moreover, DHS's g=N conclusion that the Wilshire Report was not mb T--- new - , information was upheld by the California " Bird District Court of Appeal in Fort Moinve Tadi== TN v. confornia Danar+=aat of Haalth Services, 38 Cal. App. 4th 1574 (1995), which found:

The report was a restatement and elaboration of its authors' -

opinions about possible features of the she which they had . previously discussed in the Wilahhs memorandum . . . 14. at 1596.

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, | (T]he Wilshire Report, as well as the Wilshire memorandum, did not show any new or more severe env6 ==tal impact of | | the project (or any newly feasible mitigation measure). DHS and US Ecology had already studied and addressed the rislu of | 4 transport of escaped wastes to the groundwater, as well as the j . W concern of their transit to the Colorado River. The : two Wilshire papers constituted further analyses of those issues, i cri*ianing the (draft) EIR's own analysis. The memorandum and repon thus provided only another point of view. Even the Wilshire Report's extensive discussion of possible groundwater | i pathways from Ward Valley to the river was thecmical, not a

. report of newly found realities. Id. at 1597.

. c. The NAS Report

On May 11,1995, the NAS panel published the results of its evaluation in a report entitled " Ward Valley-An Er=mination of Seven Issues in. Earth Sciences and Ecology" ("NAS Report"). The NAS Report reached the following conclusions with respect ' to each of the seven issues: ,

(1) Ime 1 - Pataad=1 Instratina of Reoository Trenchen by Shallow Subsurf4ce Flow | ' Tbc NAS Report concluded, from multiple lines of evidence, that the unsaturated zone at the Ward Valley site is very dry and that recharge or potential hansfer of contarninants through the unsaturated zone to the water table is highly unlikely. The committaa recommended specific initial baseline and subsequent monitoring measurements to enhance the database for monitoring the unsaturated zone ka= of the limitations of the data available to it.

(2) Tanna 2 - Trea*far of rhe'n nts Thrnnoh The Unsaturated Zone And Potantial For Contamination of Groundwater

The NAS Report concluded that shallow subsurface flow is not a signWiat ' issue at the Ward Valley site because under low-water fluxes (1) soll carbonate is sufficiently

' penneable to allow water to move predominandy downward, and (2) calculations showed that, with a two j K.es slope of the layering and soil horizons, lateral flow into the trenches under a worst-Case scenario Would be insigni&md.

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: i k ! ' ! Ward Valley LLRW Coordinator ! July 15,1996 | Page 14 | Imme 3 -- Polantial For Hydrogeologic Connection . (3) ; Between the Site and the Colorado River i . ' The NAS Report concluded from conservative 1==iine calenlations that, even

: if 10 curies of plutonlutn-239, which i-yaois the upper bound of the waste stream to be i disposed at the facility, actually reached the Colorado River, the potential irn=* to the | quality of the river water would be insienifi~at relative to present natural levels of i radionuclides in the river and to accepted regulatory health standards.

(4) i==aa 4 - No PI- Alta=adtv Ravaalad For Manl +arina , GWws or the U"'d 7ana Downaradiant of | i N \ i 'Ibe NAS Report concluded that the administrative record for the project | license included definite plans for post <:losure monitoring downgredient in the unsaturated . zone beneath the tranchen and at the water table at the site boundary. i "r irred Plaad Controls I h 'I%ne, j (5) !==na 5 4 Prnnna*A For The Facilley Have Failed In Past Dar*Aaa

' i At Imcations In The Mojava. Desert

.i } The NAS Report concluded that the proposed flood protection banier, j designed to surround and shield the waste site from flooding and erosion, is effectively | engineered with thick stone and gravel layers to protect the trenches and cover from rare desert surface runoff flood events, including the probably marinnun flood associated with return periods ranging from 1,000 to 1.million years. 'Ihe report further determined that the proposed system of shallow ridges to be built of natural site material and placed upslope from the waste facility site in a chevron pattern would be effective in reducing velocity and thereby erosion capability of smface water.

(6) Issue 1 -- Alluvima sad Colluvium From Cretaceous Granita Prodnes, IEnh Ouality Desert Tortoise Habitat Ihat Cannot Be Phvalcally Compensated If Sacrificed

| 'Ihe NAS Report concluded that the mitigation plan dealing with potential growth of predator populations and increased human / tortoise interactions were likely to minimim adverse effects but expressed concern that the plan to relocate torto.ises may be detrimental to the tottoine population in the site vicinity. These concerns were thoroughly ; evaluated by the FWS in both the 1990 and 1995 Biological Opinions, which concluded that adverse impacts to the desert tortoise and its habitat were reduced to a level of insigniftemnce by the project's enviroammatal protection and initigation measures and by the terms and .

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| Ward Valley LLRW Coordinator J July 15,1996 Page 15 . . | conditions and weasble and prudent alternatives included in the Biological Opinions and ; incorporated into the project. t j (7) Ia=* 7 - MiF u- :nna Ahant Revenmatinn ) ' : Enhancement May Interfbre With Successful Establishment Of Native Community .| i The NAS Report concluded that the guidelines in the revegetation plan were i !

; developed with an undermine of desert plant ecology and did not reveal any ; miarn-aptions about revegetation *ah==ments. . In sum, the report mirrored the very conclusions contained in the EIR/S and | First SEIS that con + amination of groundwater by facility operations would be highly unlikely, | 4 and that contamination of the Colorado River was not credible. Although the NAS Report | | ren==*adai ongoing monitoring be performed during project construction and operation, the panel's report provided no scientific zesson to delay the land transfer decision or facility | | ' construction to await the completion of any thrther tests.

: ; ! ; On May 31,1995, Secretary Babbitt issued a press release stating that he had | decided to pM with the transfer of the Ward Valley site to California based on the NAS , j Report findiay.- Mr. Babbitt stated that "I believe the Academy report [NAS Report] ! provides a qualified clean bill of health in relation to concerns about the [ Ward Valley] site, and an additional sneasure of confidence that the land transfer is in the public interest." i ' ! Secretary Babbitt concluded that "With appropriate conditions based on the recommendations i of that report, I am now confident that the transfer of the land is in the public interest." : Thus Secretary Babbitt himself also determined that there was no significant new infortnation .

: in the NAS Report warttuilug further environmental review. ._ 1 Members of the NAS panel that produced the NAS Report have further cuulluued that the land transfer should go forward. In a letter dated April 20,'1996, , " - Stanford University Professor of Geophysics George A. Thompson, former chair of the Ward | Valley Committee of the National Research Council, stated: j j It is highly unlikely that sieniMeant amounts of radioactive ; material from the Ward Valley facility would reach the ground j water, which lies more than 600 feet below the site, and an even : smaller chance of reaching the Colorado River. Frota a purely scientinc standpoint, none of the data reviewed by the

. committee support further delay or opposhion to construction of the facility, provided the oversight and monitoring 1 re==maM=*iana of the comruittee are put in place. i i

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- : i ! Ward Valley LIRW Coordinator ; July 15,1996 -- f Page 16 4 ) A copy of the letter has been attached to this letter as Exhibit 1. Accordingly, the NAS Report does not constitute significant new information, thereby cosroming BLM's docunon ] in the First SEIS on this information. t j 2. EcJ1tLQfldthmumd_Ralatedlastingle_Be Conducted.AtlhrJiite i ! There is no scientific, eachnical of regulatory basis for the tritium testing and | analyses proposed by Deputy Secretary Garamendi on February 14,1996. Indeed, Mr. { Garssnendi has ihndmenentally minennstrued the report's reenmmandatlans by envisioning i further trithnn tests as a site suitability " litmus test." In fact, the NAS Report drew the ! overall conchision "from multiple lines of evidence" that the unsaturated zone at the Ward | Valley site is very dry and that recharge or potential transfer of contaminants through the i unsaturated zone to the water table is highly unlikely, !

4 . | Par from cv?'-4ne tritium data to be highly significant, the NAS Report j panel suggested that the cWiaaly small amounts of tritium reported were actually well j within the range of a null or zero result given the real uncertaintia, associated with sampling j and analyses for such small amounts of tritium. The NAS Report concluded that the most likely explanation for the measured tritaun is contamination with atmospheric tritium owing j to sampling procedures. Given all the other evidance. of no infiltration and difficulties and j uncertaintias associated with tritium extraction and analysis, the panel reenmmendad j confirmatory tritium sampling and analysis as well as samples and analysis for a more ; reliable i+r =-e r Cl-36 A=ine f=ciliev = a <= mad anaention. Importantly, they | recommendad that such testings and analysis be conducted within the frameworlt of the !~ overall regulatory program administered by DHS. ;

~ I Professor Thompson, chair of the NAS Report committee, emphasized the | committee's determination that tritmm testing should mt delay the project in his-April 20, ! 1996 letter, stating: ! | The radioactive hydrogen-isotope tritium, released into the : =tmn=phare from bomb tests during the 1950's and 1960's (and j also produced naturally in smaller amounts in the high ; atmosphere), is carried into the ground by rainwater and has | been used to trace the movement of water through the soil. j While measurements suggest that tritium exists at naaW depths beneath the Ward Valley site, the cammittae concluded j that the collection methods were flawed. The snore robust j measurnamare of chloride concentration at shallow depths ; indicate little or no water penetration below these depths. 'Ibe

: uncertainties raised by the tritiump measurennenes can be resolved . ?

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Ward Valley IlJtW Coordinator July 15,1996 - Page 17

by remeasuring and using other tacers as weD, such as chlorine 36, which also resulted fhun bomb testing. ,

| However, I want to emphasiae that the trkhan data from deeper ' | levels of the site (3648 feet) are so small as to not be di.Q8% ham zero, owing to inadequase evninstian of the uncertainty in collectkm and measurement Due to these ' uncertainties, the committaa majority concluded that these data i are meaningless and in our report rammmandsd fluther sampling and analysis be done on a ongoing basis during the constraction and operatim alphase of the facility (emphasis in original).

Contrary to these mea ==aadattaan, neither the scope nor the protocol for the studies pW by Deputy Secretary Garamandi have yet been defined. A panel was only recently convened to establish protocol, and it is anticipatad that its initial deliberations will not be completed until at least late summer, at which time a draft study plan is to be released for phblic canwnant.

Finally,' Interior has ',,roposed that lawrence Livermore Lhary conduct the analyaes of the tritium samples,12wrence Livennore, however, is not recognized as one of the major laboratories capable of cW== this type of analysis, a fact brought to

. Secretary Babbitt's attention by Professor Robert D. Hatcher, President of the American , | Geological Institute and member of the NAS Report panel, in a letter dated February 27, ~ 1996. A copy of the Hatcher letter is attached hereto as Exhibit 2.

1 Mindful of the caveats and cautions in the NAS Report, this ad hoc sampling and analysis will not provide any significant or useful scientific information that-would rise to the level of significant information requiring an SBS under NEPA. The absence of the data is not a fatal flaw in fl* project as proposed, as determined by the NAS Report panel i and other data, and there is a high expectation that the data will confirm other existing lines i of evidanna regarding this issue.~ j

3. Recent USGS Infonnation And Other Infonnation Rassgding Ihc Close4 LIJtW Pacility At Beatty. Nevada .

- ! Data from the LLRW site in Beatty, Nevada is irrelevant to the Ward Valley ; facility for the reasons discussed herein, in two USGS open file reports recently issued, and t in a report issued by DHS evaluating the USGS suports. Furthermore, to the extent that | macroscopic analogies exist between the two sites, the Ward Valley study results already ' containad in the Final EIR/S for the project arp consistent with the Beatty obsesvations.

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. j Ward Valley LLRW Coordinator l : ._ July 15,1996 |

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Data produced by ongoing studies of the unsaturated zone at the Beatty LLRW

1 4 j The review team believes that the observed tritium distribution at Beatty is ! j probably the result of the burial of liquid waste and the fact that sonne disposal ( ! | trenches at Beatty were open for years until flued, allowing accumulation and ! inflitration of piscWian. . . . J f The license that the State of California has issued for the Ward ; Valley facility does not permit disposal of radioactive waste in i liquid form and requires that only the mininium amount of open

; trench neocasary for safe and efficient operation shall be i excavated at any one time. Because of the differences in waste | burial practices at the Beatty site compared to those intended for ; the Ward Valley site, and . . uncertainties about the transport | machanisms at Beatty, extrapolations of the results from Beatty ' to Ward Valley are too tenuous to have much scientific value. * i j A copy of the February 14,1996 memormnrhun has been attached hereto as Exhibit 3. DHS i. recently concluded its own study reaf*=ine the USGS conclusions.

' ' The Ward Valley facility safety annamarnant was based on data collection and

4 analyses performed at the Ward Valley site, not at Beatty. All tachnical 'm formation relevant to the p1vni.gsw of the Ward Valley facility was thoroughly analyzed by DHS during the licensing process and enmantially reaffirmed by the NAS panel. Attempts to couple specific . data fmm Beatty, or any other location, with the anticipated performance at Wasd Valley

, have no technical or regulatory relevance. Accordingly, the Beatty data cannot constitute : new circnmatannan or information relevant to envirnan= nt=1 concerns warranting + i. ion of a SEIS.

I 4. Ensults Of Consultation With Native American Tribes and Possible Effects OfI.and Transfer And Pacility On Areas Of Cultum!

4 Importance To Nearby N=eive Amarieaa Trihm And Trihal Riehtn* - Recognized By Federalla ; 1 The Final BR/S was suppiamaatM by BLM just over two years ago. The ; project's p* dial knpset on Native American cuinual and religious sites was fully i considered and evaluated in both the Final EIR/S an:1 the First SES. A further supplement .' of the Final EIR/S on this lasue is unwarranted. .

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| ! Ward Vausy 11RW Coorrtiastar | July 15,1996 Page 19 In the First SES, BI.M noted that in fumuiag its trust responsibilities to Native Americans, it was required to make a reasonable effort to identify and consider Native American concerns and conunents. BIR noted that Native American consultation | was initiated early in the site selecdon process and continued through preparation of the Final | EER/S. The specific steps undertaken in preparation of the ER/S included a 100% | archeological survey perfonned by the University of California, Riverside, Archeological i Research Unit, with Native American participation, indicated that no significant cultural | resources were present at the site. US Ecology also contacted repe-n*=*ives of the Fort Mojave, c'hernehuevi and Colorado River indlart Tribes to evaluate potendal cultural irnpacts of a more general regional natura. 'Ihis included visits by Native Americans to the Ward i Valley site to idendfy potential cultural impacts and to obtain an ethnographic perspective on the site and the general vicinity. At Ward Valley, this was coordinated with a botanist to l obtain information on the existence of traditionally used plant materials. No plant materials | are present at the site which are not readily available in abundmane elsewhere in the Ward j Valley and surrounding areas. | Secdons 3.1.10.2 of the Final ER/S identifies the concerns that were j developed through that consultation process, which included both the Mojave and

| Chamehuevi Tribes. As documented in the ER/S, US Ecology will retain qualified i ethnographers to conduct a trails smdy as a measure to preserve the Native American cultural l history of the region. Native American representatives will be invited to participate in planning and implementation of the sedy. Other concerns expressed by Native American cammentatars (e.g., water quality, pratactinn of the Colorado River, health effects of ' radiation exposure) were addressed in the Final HR/S. | | | 5. Dal==a' tan Of Ward VmHav By The FWS As Critle=1 Hahitat For The | Desert Tortoise I .

Interior's inclusion of the 1,000-acre Ward Valley site in the federal i | i government's proposed designation of critical habitat for the desert tortoise in August 1993, I and its final designation of that land as critical habitat in February 1994, does not canse4*** - ' ; sigam=* new information warranting a SMS. A change in the legal status of a listed | species or its habitat does not change its biological status and therefore does not warrant a SES where, as here, the W to the species and/or its habitat were aheady fully assessed in an HS prior to the change in hs legal status. Swanaan v. Unitad States Forest Service, 1996 U.S. App. LEXIS 15132 (9th Cir., June 24,1996). i | During the early site selection process, the desert tortoise was 'not listed as a ; thr*maaned or M=W species under the Stats or Federal ESA(s), but was classified by i BDd as a " sensitive species" for which Ward Valley was " crucial habitat" (later called i "c=*=ywy I" habitat). In 1988, DHS fonned a nadt!-agency Ad Hoc Desert Tortoise

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! I Ward' Valley 11RW Coordinator

- . July 15,1996 i Page 20 ' , ! ! Woridag Group to determine if adverse impacts to the desert tortoise and its habitat could be

. ! mitigated. The Ad Hoc Group included reprwatatives from the FWS. After thorougu ' | study, the Group concluded that mitigaiian could be rd_ieved,.and identified speJm; mitigation measures and two compan==tian, measures (fencing 6.5 miles of Interstate 40 and performing long-term tortoise relocatian studies) that were included in the prqlect's Draft , , i EIR/S description. \ , After Interior listed the desert tortoise as " threatened" in April 1990, BIM i | conrJ] tad with the Service under the Federal ESA. 16 U.S.C. I 1536(a). At the time, BIM | had not designated " critical habitat" for the desert tortoise as required by the Federal ESA. i j 16 U.S.C. Il 1533(a)(1)(A),(c)(1). In November 1990, the Service issued a Biological : Opinion (" Opinion"), which was adopted by Fish and Game pursuant to Fish & Game Code ! ( 2095, that determined that the project would not jeopardine the desert tortoise either : through direct impacts on the tortoise or through the destruction or adverse modification of ! its habitat. In fact, that opinion concluded that the habitat loss caused by the project would j be de mialmia. The Opinion also concluded that the planned fencing along Interstate 40, one : of the proposed mitigation measures, could result in better genet 6 exchange between the : i separated populations, reduce freeway mortality, and cause recolonization of sparsely | Inhabited areas on either aide of I-40.F ; . , | The Federal ESA provides for the designation of critical habitat for a , ! threatened (or d==ed) species. 16 U.S.C. Il 1533(a)(3)(A),(c)(1). Once critical habitat ; is designated by Intenor, any federal agency anticipatinS an action eat will affect that habitat | must consult with the Service to determine if the action will " result in the destruction or { adverse modification" of the " critical habitat." 16 U.S.C. I 1536(a)(2). ! : Following the faal designation of desert tortoise critical habitat in February

: 1994, BLM reinitiated consultation with the Service on May 10,1995 in accordance with the i Federal ESA to ensure that the proposed Ward Valley land transfer would not " result in the destruction or adverse modification" of critical habitat. 16 U.S.C. I 1536(a)(2).

; - ! On August 31,1995, FWS issued a biological opinion which concluded that j the project would not likely jeopardize the continued existence of the species and would not i likely destroy or adversely modify desert tortoise critical habitat. The opinion found that the ! species would not be jeopardized because (1) the level of incidental take likely to result from { the proposed action would not reduce the desert tortoise's ability to survive and recover 1 i ! j 2. These areas were also included in the federal government's proposed and final ; designations of " critical habitat" for the desert tortoiss. 58 Fed. Rag. 45748 (Aug. 30,1993; , j 59 Ped. Reg. 5820 (Feb. 8,1994). - .

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' Ward Valley 11RW Coordinator - j July 15,1996 Page 21 | | within the Northern Colorado Recovery Unit; (2) the project includes barrier fencing along both sides of Interstate 40 through Ward Valley, which would reduce the number of desert tortoissa killed or irdured by the freeway and may allow some ==g=acy of the area; and

| (3) the amount of radiation to desert tortoises that may be exposed as a result of the facility | is below the level that could result in harm to the desert tortoise population of Wani Valley. | | The opinion further concluded that critical habitat wu not likely to be ! destroyed or adversely unodif5ed because (1) habitat loss would be very lindeed in size in I cou.y,dison to the area needed for recovery of the doesrt tortoise, and would not appreciably reduce the ability of the Chamehuevi Critical Habitat Unit to provide for the survival and | recovery of the tortoise; (2) the theility would not result in the removal or degradation of the constituent elemanta of critical habitat outside the facility area; and (3) the facility would not |. | appreciably increase fragwa*ation of desert tortoise habitat. I Interior's designation of critical habitat fbr the desert tortoise under the

| Federal ESA did not alter the project or the high value that already had been placed on Ward Valley tortoise habitat by BIR. To the contrary, there is substantial evidence in the record to support a conclusion that the project as proposed likely will result in a net improvement to the Ward Valley critical habitat area. The record contains substantial evidence concerning | | the adverse impact of I-40 'o n desert tortoise mortality and the Service Biological Opinion ! concluded that I-40 fencing could impmve genetic exchange, reduce road kills and result in recolonization of abandoned areas in the critical habitat area. 'IDsse conclusions are further supported by several other'docinnants in the record.

- 6. 1995 EPAltapart ConcernimLRelana LQf Radionuclides Into The Atmosphandad.Etfesta_Onlhaart.Tattnisclishilst | Tbc 1995 Biological Opinion extensively analysed the 1995 EPA +isk analysis to the desert tortoise. The FWS noted that the EPA report studied the effects of exposure of

| desert tortoises at the Nevada Test Site in Rock Valley, Nevada to radiation fmm a 33,600- curie cashun-137 sousee and concluded that mortality, growth patterns, sizes, egg pr@M-3, and health of the four Rock Valley tortoises was unaffected by an estimated chronic exposme dose ranging from 16 to 18 rem per year over 18 years. Applying the EPA analysis to the Ward Valley site, using several exposure sce:wlos that included a trench fire and the release of gases through the trenches, the FWS cancandarl that radioactive emissions from the facility would not result in the take of desert tortoises or adversely affect their habitat, thereby concurring with SLM's conclusions in its Biological Mamammant-

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! Ward Valley LLRW Coordinator 4 July 15,1996 . Page 22 i . 7. h"* De cr--.1 ='= 1 Bv The "n -- Heaa Waka* DR a 3 i of x. " -a twaarnia On 'Ibe Pi b:'s F=- 11 !=r:-N On The Colorgio River

: ; In August 1993, the Metropolitan Water District of Southern California

. ' (" MWD") received a draA toport from Geoscience Sun-t Services, Inc. (" Draft Geoscience Report") analyzing the potatial impact of the Ward Valley project on the Colondo River - " the same issue that was the subject of the Wilshire Report. The Draft Geoscience Report 4 ' was revised in August 1994 and a copy was provided to the NAS Report panel by MWD. The Geoscience Report was never finalised or adopted by MWD, and its main contention - { that the project could contaminate the Colorado River sometime in the distant future -- was thoroughly analyzed and rejected as not credible by both the DHS and in the NAS Report, i and d copy of the DHS analysis of the C*aar wa Report is attached hereto as Exhibit 4. j There is no new information pre = anted by the Geoscience Report that warrants a Second SEIS. | , 1 i i 8. Other Information Submined By The Public

! | In response to BLM's statement that it would consider any other information | submitted to it by the public in the proposed Second SES, the EPA submitted a comment { letter on July 1,1996. All of the issues raised by EPA citler were fWly evaluated and ! addressed in the Final BIR/S or First SEIS, or do not present significant new information 4 warranting a Second SMS.

, 9. EPA Comments On EIR/S And First 4M3 | | Each of the lasues raised by EPA in comments submitted to BLM on the Draft i SS (Rapeamber 1990), Final EIS (July 1991), first Draft SBS (November 1992).and First ! SEIS (October 1993) have been fully analyzed and dimenamad in the Final ElR/S and First | SEIS. Accordingly, these issues do not provide a basis for a Second SEIS. | | - a. Uan Of Class A Tranches. Par Clag S and C Wastes 1 i Lkanaa Condition 88 teatricts the disposal of Class B and Class C wastes to a Class BC30 trench. Any modification of this condition would require amand-ne of the i license. 4

4 ; b. CoordinatiWLWith RegiQnal Water Ouality Control Board I | The Colorado River Regional Water Quality Board ("RWQCB") participated in ! the 'envie....~.el review for this project as a responsible agency under CBQA. 'Ihe . J

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: I i Ward Valley LLRW Coordinator I !. July 15,1996 Page 23 ) { ! , ; RWQCB was involved in the scoping process for the project and provided conunents on the i development of the Final EIR/S. The agency also participated in the licensing process ; pursuant to a memorandum of understandine executed between the RWQCB and DHS, , participated on a vadose zone monitoring committee established by DHS, assisted in ; | ' identification of appropriate monitoring standards for the facility, and was given the opportunity to review draA license candleians and recommendations. Accordingly, there has been ample coordination with the RWQCB on this project. J

! c. Coorhdan With Air O-lhv ''--- = a DMki To Ra== Compliance With State Implementadon Plan

l i 'Ibe Final EIR/S demonstrates that the project will be in compliance with the l California State Implementation Plan (" SIP *). Environmental protection and mitigation { . measures are incorporated into the project to ensure continued compliance with the SIP and ! there has been extensive coordination throughout the envirs. .c.o..; I review process with th | | Mojave Desert Air Quality Management District and its pradaemors. 1 |

, j d. Coordinatian With FWS To T=-'= -. Ad*=ata Mitientian

- ..#- = ; ''= awes To Pr.= F 7 T 2= Aad cc. ^ Por T M ' | | HAhitti

S i | The 1990 and 1995 Biological Opinions issued by the U.S. FWS include l | requirements that have been incorporated into the project license. 'Ibe project Mitigation | i Monitoring Plan idantifies the activities and responsibilities to ensure these project features ! and mitigation mananres are properly implemented and documented. 1 i ; c. Coordinarian With FWS To faalamaat Adaan=te Mitientian To ; Protect Terrestrial Wildlife And MigratorvfWintedna And Realdent Birds

. I As analyzed in the Final EIR/S, lu,6 cts of construction, operation, closure ' and post. closure care on sensitive wildlifh species (kit fox, le Conte's thrashers, bighorn

; sheep) and vegetation (yucca, cacti, creosote bush) will not be alenifirmat. Mitigation | cammitman*= are sufficient to address the impacts from both construction and operation. . The | 1990 and 1995 Biological Opinions issued by the FWS include requirements that have been j iscvipe i into the project license and the project Miti =tian Monitoring Plan idendfies the

! , activities and responsibilities to ensure these project features are properly implemented and i ' ! documented. ! j An operational and post-closure monitoring program will be implemented to , j determine whether there are releases of radioactivhy from the Ward Valley facility. Based i

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i Want' Valley LLRW CoGuliseter ' July 15,1996 Page 24

on the calculations performed to evaluate poemial rad!adon exposures to immans, and A i fact that the zesults are well within regulatory limits, no significsnt radiation exposure impacts are evneread to animals or vegetation. There is no reliable scientific evidence that low levels of ionizirig rMistion present at the facility would have any adverse effects on the | phyklology or genetics of plant or animal species in the local area.

f. Pahlan Of f IRW At Lum:e

lhe Final EIR/S extensively erami=d the isme of reduction of LIAW at the source, particularly in the response to comment 142.4, which discusses the State's policy of encouraging waste reduction and the various a-haaie=! methods already in use by waste . generators to reduce the volume of LLRW. California enacted a statute in 1983 adopting a policy encouraging the miniml*** ion of such waste and reaffumed that policy in 1987 in -tiaa the Southwestern Regional Cwt- Article 1(c) of the Compact states: "It la the policy of the party states to this compact to encourage the reduction of the volume of low- level radioactive waste requiring disposal within the compact region." Article 4(F)(5) simuarly provides: ''Esch state shall encourage generators within its borders to minimim the volume of low-level radioactive waste requiring disposal." In acconiance with state policy, DHS encourages generators to minimite the volume of waste requiring disposal. Furthermore, waste generators will have a financial incentive to reduce wasta volumes because the disposal facility costs will be borne by generators on a per cubic foot charge basis.

* 10. Allamad "New Inform *+iaa & Par *at sam Pai-d By EPA

a. NAS Report

As discussed agga, the NAS Report did not include any new information warranting a Second SEIS. With respect to the diana ==1 of plutonium-239 at the Ward Valley site, the Final EIR/S exhaustively analyzed this issue and its conclusions were corroborated by the NAS Panel. There is n0G.isg in the May 30,1995 Congressional Research Service report that raises any significant new information not already analyzed.

b. Pollution orevention .

Pollution prevention measures for the project were addressed and analyzed extensively in the Final EIR/S. The project has been designed to reduce the amount of lost habitat to the maximum extent possible, and reduction of LLRW st its source to minimire waste was nipecifically addramaad in the responses to comments on the Final EIR/S, as I discussed BEER.

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i 1 i i j Ward Valley LLRW Coordinator i July 15,1996 Page 25 _. j C. adielestian for Mn :=L.--_ -- ^_1 '.-- *

1 The Final ER/S and Mitigation Monitoring Program contains a detailed j description and analysis of project impacts and mitigation measures, including i L---!==Wion ehMules, funding sources and identification of parties responsible for ! implementing the measures. There is no basis under NEPA for wg.tieg this information in. | a Second SEIS.

! . i i d. Permi+= =M Aaalie.hi. n= ___ - m i j ' The Final EIR/S includes a list of the federal, state and local permits ====ry for construction arid operation of the proposed LLRW disposal facility. There is no basis under NEPA for repeating this infonnation in a Second SES.

,t i e. MixedRasta } | A discussion of the mixed waste issue raised by the EPA was included in the ! Response to Comments section of the Final EIR/S and in BLM's responses to comments in ! the First SES. As noted therein, the Watd Valley facility will not accept mixed waste, and : the facility is foreclosed from receiving such waste by IJcense Condition 18'.

' f. Federal Endanacred Snacias Act | ; 'Ibe November 21,1990 Biological Opinion was incorporated by reference j into the Final EIR/S and included as an athdunant. The August 31,1995 Biological ! Opinion did not identify any adverse envirnnmental impacts not aheady analyzed in the 1990 j Biological Opinion and accordingly does not warran: a Second SMS. i 1 - j g, Indian Tribes And Envimamental Justice i j As discuased above, Native Americans were cansnitM extensively during the - | scoping and environmensal review process that entmin=W in the Final BR/S and had ample opportunity to raise concerns regarding the proposed project. 'Ihere is no new information . j regarding Native American issues that warrains ismance of a Second SES.

! ; 'Ihe proposed transfer of federal land for the Ward Valley LLRW disposal also 1 is fully consistent with Executive Order 12898, which mandates that each federal agency j shall conduct activities that substantially affect human health or the environment in a manner j that does not (1) exchade persons from participation, (2) deny persons the benents of, or (3) ; subject persons to discriminarian under such activities because of their race, color or national j origin. 59 Ped. Reg. 7629 (Feb.11,1994). As thoroughly analyzed and discussed in the

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i ! | } Ward Valley LLRW Coordinator * July 15,1996 Page 26 i Final HR/S and First SEIS, the land transfer will not substantially affect hinnan health or the envks....ar and thus does not fall under the strictures of Execudve Order 12898. ! Moreover, even if the executive order is applicable, Native Americans have not been : excluded from participating in the lengthy envis 61 review of the proposed land ; transfer, as discussed agtta; have not been denied any benefks associated with the land i ' transfer; and will not suffer any discrimination as a result of the land transfer and

, construcdon and operadon of the facility. It is Mat to note that Ward Valley has a j permanant population of zero; hence, no individuals are present to eyedse perceived ; injustice. In fact, a quantitative analysis using a model to evaluate environmental jusdce ; concems developed by EPA Region 6 indicates the proposed Ward Valley facility will have ; an impact of 0 on a scale of 0-100 on Native Americans or other populations of concern,

. where 100 represents the maximum amount of inequity. j Finally, BIM concluded in the First SEIS that transferring the land would not violate its trust responsibilities to area Native American tribes, as diaca**ad above. No new j| circumstances or information exists that would warrant additional discussion or analysis of i this issue in a Second SEIS. !

B. Prensratinn Of A heand SRK Wonid Be An Abuse of Discretinn

. Although NEPA regulations provide an federal agency with the discretion to prepare a SES if it determines that "the purposes of the Act will be furthered by doing so," 40 C.F.R. l IS02.9(c)(2), BLM would abuse that discretion by preparing a Second SBS for the Ward Valley facility land tmosfer. As discussed agga, the purpw of NEPA is to ensure that a federal agency takes a "hard look" at the environmetital impacts of its proposed actions and a supplemental BS is nekher required nor contemplated for any piece of new information that might arise. BIM has already nadartaban a comprehensive NEPA envirnmnental review of this project that began almost ten years ago. No additional envimamental concerns have been raised regaiding the project that have not already been analyzed by BIM in the Final BR/S and the First SEIS. Accordingly, BLM would be acting arbitrarily and capriciously in preparing a Second SEIS, the sole effect of which would be to unjustifiably delay the Ward Valley facility.

III. Concinaion

. BIM's preparation of a Second SHS is undustified, without legal foundation and serves only to needlessly delay the construction and operation of the Ward Valley facility. In so doing, Bud and Interior is causing harm to US Ecology by delaying a return

on the company's enharawlat investment and by exposing US Ecology and the State of . j California to potentialliability and damage claims from waste generators and member states of the Southwessern IAw-Izvol Radioactive Waste Disposal CW.. US Ecology strongly __ - ______._ . . . . _ _ . _ _. _ _ ._. . _._ _ . .

Ward' Valley 11RW Coordinator -

July 15,1996 _, Page 27

urges BLM amiInterior to cease their efforts to further delay this project and allow US ,

Ecology and the State of California to proceed with the construction and operation of this - much-needed facility. : 1 Sincerely, I | - &? | , 1 James A. Shaffner, P.E. I Manager, Southwestern Compact Ragion

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4 References to this bill in the Congressional Record

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| To convey 1,000 acres of Federal land in San Bernardino County, California, for use as the site of the Southwestern Low-Level Radioactive Waste Disposal Compact's regional disposal... (introduced in the House)

HR 2334 IH

104th CONGRESS

1st Session

H.R.2334

To convey 1,000 acres of Federalland in San Bernardino County, California, for use as the site of the Southwestern Low-Level Radioactive Waste Disposal Compact's regional disposal facility.

IN THE HOUSE OF REPRESENTATIVES

SEPTEMBER 14,1995

Mr. BILBRAY (for himself, Mr. MOORHEAD, Mr. THOMAS, Mr. DRElER, Mr. PACKARD, Mr. HUNTER, Mr. DORNAN, Mr. CUNNINGHAM, Mr. YOUNG of Alaska, and Mr. SCHAEFER) introduced the following bill; which was referred to the Committee on Commerce

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A BILL

To convey 1,000 acres of Federal land in San Bemardino County, California, for use as the site of the Southwestern Low-Level Radioactive Waste Disposal Compact's regional disposal facility.

Be it enacted by the Senate and House of Representatives of the United States of America . . . _ . - _ - _ _ _ _ . _ _ . . ______. - ______. . _ _ _ - . _ , . . _ _ . _

in Congress assembled, l SECTION 1. CONVEYANCE OF PROPERTY. | | (a) CONVEYANCE- Upon the tendering of $500,100 on behalf of the State of Califomia and the release of the United States | . by the State of California from any liability for claims relating to the property described in subsection (b), all right, title, and interest of the United States in and to such property and improvements thereon are conveyed to the Department of Health | Services of the State of California, except that the property shall revert to the United States if the property is not used as a low-level radioactive waste disposal facility.

! (b) LEGAL DESCRIPTION- The lands conveyed are: San Bernardino Meridian, Township 9 North, Range 19 East-

Section 26, the southwest quarter of the southwest quarter;

Section 27, the south half of the south half;

Section 34, all;

Section 35, the west half of the west half.

(c) TITLE- The Secretary of the Interior shall issue evidence of title pursuant to this Act notwithstanding any other provision of law. The Southwestern Low-Level Radioactive Waste Disposal Compact's Ward Valley regional disposal facility and transfer of property under subsection (a) are in compliance with any applicable provisions of section 1713 of title 43, United States Code, section 4332 of title 42, United States Code, and section 1536 of title 16, United States Code.

(d) DEPOSIT OF FUNDS- Sums received pursuant to subsection (a) shall be deposited as miscellaneous receipts in the Treasury of the United States.

| (e) TERMINATION OF AUTHORITY- The authority to make the conveyance described in subsection (a) expires October 1, 2010.

SEC. 2. CONVEYANCE OF EASEMENTS.

(a) IN GENERAL- Concurrent with the conveyance of the property described in section 1(b)

to the Department of Health , | I ; Services of the State of California, all necessary easements for utilities and ingress and egress to such property and the right to improve those easements, are also conveyed to the Department of Health Services of | 1

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' .. a | the State of California, except that the | Department of Health Services right of way easements shall revert to the United States if the property is not licensed and used i{ as a low-!avel radioactive waste disposal facility. | ! (b) LEGAL DESCRIPTION- The legal description of the property subject to the easements described in subsection (a) is as follows: A percel of land lying within the NE 1/4 of section 34, the SE 1/4 of section 27 and the W 1/2 of section 26, ] township 9 north, range 19 east of the San Bernardino meridian, San Bernardino County, 1 California, being more particularly ' described as follows: Commencing at the northeast corner of said section 34; thence south 88 degrees 02 minutes 29 seconds west along the north line of said section 34 a distance of 758.5 feet; thence south 01 degrees,57 minutes,31 seconds east a distance of 25.00 feet; thence south 09 degrees,05 minutes,35 seconds east a distance of 131.67 feet to the point of beginning; thence continuing south 09 degrees 05 minutes 35 seconds east a distance of j 60.75 feet; thence south 90 degrees ; 00 minutes 00 seconds east a distance of 285.52 feet, to e point of curve; thence along said curve to the right, having a radius of 32.00 feet and a central angle of 98 degrees 59 minutes 49 seconds, an arc distance of 55.26 feet to a point of tangent; thence south 08 degrees 56 minutes 49 seconds west along said tangent a distance of 30.00 feet; thence south 81 degrees 03 minutes 11 seconds east a distance of 60.00 feet; thence north 08 degrees 56 minutes 49 seconds east a distance of 308.02 feet to a point on the south line of said section 27; thence continuing north 08 degrees 56 minutes 49 seconds east a distance of 1,948.10 feet to a point on the west line of said section 26; thence continuing north 08 degrees 56 minutes 49 seconds east a distance of 2,101.87 feet to a point on the southerly right of-way line of a frontage road for Interstate 40; thence south 69 degrees 25 minutes 11 seconds west along said southerly right-of-way line a distance of 209.58 feet, to a point of curve; thence easterly along said curve to the right the center of which bears south 20 degrees

33 minutes 49 seconds east, having a . radius of 82.00 feet and a central angle of 119 degrees 30 minutes 38 seconds an arc distance of 171.04 feet to a point of tangent; thence south 08 degrees 56 minutes 49 seconds west a distance of 1,615.36 foot to a point on the east line of said section 27; thence continuing south 08 degrees 56 minutes 49 seconds west a distance of 2271.35 feet to a point on the north line of said section 34; thence continuing south 08 degrees 56 minutes 49 seconds west a distance of 111.02 feet to a point of curve; thence south along said curve to the right, having a radius of 67.00 feet and a contral angle of 81 degrees 03 minutes 11 seconds, an arc distance of 94.78 feet to a point of tangent; thence north 90 degrees

00 minutes 00 seconds west along , l l

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e said tangent a distance of 265.52 feet to the point of beginning, containing an area of 6.55 acres more or less. | ...... THIS SEARCH THIS DOCUMENT GO TO ! Next Hit Forward New Search Prev Hit Back HomePage | Hit List Best Sections Help l Doc Contents

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