November 16 , 2001


John Iani
Regional Administrator, Region 10
U. S. Environmental Protection Agency
1200 6th Avenue
Seattle, WA 98101

Sent by Certified US Mail No. 7000 0520 0014 5754 3841

Dear Mr. Iani,

This letter is submitted as a reply to the Idaho Department of Environmental Quality (IDEQ) Orville Green's letter to EPA Region 10, Rick Albright, dated October 22, 2001 RE: Petition to Withdraw Resource Conservation and Recovery Act (RCRA) Authorization. The Petitioners include David McCoy, Keep Yellowstone Nuclear Free, and the Environmental Defense Institute. This reply is supplemental only to the Petition and all its attachments.

While the withdrawal Petition focuses on the Idaho National Engineering and Environmental Laboratory (INEEL) facility, IDEQ's performance must be judged primarily on the basis of that facility. The INEEL is beyond question the greatest ongoing operational threat of hazardous waste and toxic emissions to our and future generations. If IDEQ would prefer it, Petitioners would be willing to organize the Petition with the addition of other Petitioners who are familiar with IDEQ's other operations.

The withdrawal Petition focuses on the history up to the present of the noncompliant and lax regulatory environment and operations at INEEL during which IDEQ has allowed facilities such as the New Waste Calcining Facility (NWCF), Waste Experimental Reduction Facility (WERF), Process Equipment Waste Evaporator (PEWE), Liquid Effluent Treatment and Disposal facility (LET&D), High Level Liquid Waste Evaporator (HLLWE), NWCF Debris Processing, and the INTEC Tank Farm Facility (TFF) to operate.

The Petitioners critically question how long the Idaho Department of Environmental Quality (IDEQ) will allow dozens of hazardous waste facilities to operate at INEEL before IDEQ makes a determination that the facilities cannot satisfy the informational and operational requirements necessary to grant or deny the permits. RCRA requires permitted facilities. Petitioners reject IDEQ's legal fantasy that interim status, a consent order or the mere submission of a Part B application is a sufficient justification under RCRA to allow indefinite operations of INEEL facilities. IDEQ and DOE have developed a strategy of continuing operations at hazardous waste units which cannot comply with RCRA permitting requirements where the units are allowed to continue to operate for lengthy periods of extended interim status, consent orders or submission of Part B applications which remain pending for years without approval or denial. (1)

The high-level radioactive/hazardous waste Calciner incinerator operated since 1982 without satisfying requirements for a Part B permit application. The Calciner is currently in stand-down pending the INEEL High-level Waste Environmental Impact Statement (HLW/EIS). It is not operating because the Petitioners filed a Notice of Intent to Sue (NOI) on May 5, 2000. The WERF nuclear waste incinerator (also the subject of Petitioners' NOI) operated from 1986 without obtaining or satisfying requirements for a Part B permit and, like the Calciner, never passed a single trial burn.

The fact that closure proceedings have recently been initiated for the New Waste Calciner Facility is irrelevant to the historical fact that IDEQ allowed the NWCF to operate for over a decade without the prior characterization of wastes. Additionally, it operated as a thermal treatment unit instead of as an incinerator, and was used to process heavy metals (inorganic materials) which volatilized so the public could inhale them.

No classification decision exists for the PEWE even though the PEWE has operated for five decades. The LET&D has operated since 1993 and did not qualify for interim status and did not obtain a RCRA permit as a new facility. Contrary to IDEQ's assertion, a notice of noncompliance/consent order is not a RCRA permit.

The High-Level Liquid Waste Evaporator (HLLWE) has operated since 1996 without a permit as a means to concentrate high-level radioactive and hazardous waste in the INTEC tank farm waste. The HLLWE capacity was expanded by over 12 percent without meeting any modification requirements.

IDEQ currently fails to enforce the RCRA Expanded Public Participation Rule with respect to the HLLWE. (See 9/13/11 Withdrawal Petition at pp. 19(a) - 21). In fact, Mr. Green acknowledges that DEQ plans to slip in the HLLWE into an indeterminate "later" modification to the PEWE permit. Mr. Green fails to address the fact that the HLLWE has had no Part B Application submitted by DOE although the HLLWE evaporator has operated since 1996. Discussions have been underway regarding a Part B permit since 1996. Why has DOE not held a pre-application meeting?

Mr. Green fails to explain why IDEQ has not called for the submission of the HLLWE application, despite the fact that DOE now admittedly plans to include the HLLWE as part of the INEEL Liquid Waste Management System (ILWMS). Mr. Green fails to address the HLLWE from the perspective of public participation. IDEQ fails to require DOE to come forward to the public and present their plans for a HLLWE Part B Application at the earliest opportunity so that the public might have some glimpse of what the overall plan for the INEEL Liquid Waste.

Operations at the above facilities continued under interim status because the IDEQ and DOE both knew that numerous facilities could not obtain permits for technical reasons. In 1996, DOE referred to all of the above facilities as "unpermittable." Additionally, because these hazardous waste operations were never RCRA permitted, they will not undergo the more stringent RCRA closure process.

IDEQ saw no RCRA problem with dangerous nuclear incinerators, which cannot obtain permits, operating for 15 or more years under interim status. Mr. Green is certainly also correct that no Part B Permit exists for the high-level radioactive waste evaporators at the INEEL, the Process Equipment Waste Evaporator, the Liquid Effluent and Disposal, and the High-Level Liquid Waste Evaporator (PEWE/LET&D/HLLWE respectively).

Mr. Green ignores the permitting issues raised by the withdrawal Petition surrounding the Tank Farm Facility and the failure of IDEQ to apply the Clean Air Act's MACT (Maximum Achievable Control Technology) standards to INEEL as an offsite waste processor. Petitioners acknowledge that IDEQ is not authorized to enforce MACT standards, however, violation of MACT standards by INEEL operations constitutes grounds for denial of RCRA permits because the statutes that established MACT intended a merger with the RCRA requirements.

Other issues not addressed by Mr. Green include under-staffing, under-funding and lack of an arm's length accountable relationship with DOE. The use of facilities such as the PEWE to process waste codes which are not appropriate for evaporation is not addressed by Mr. Green.

Mr. Green has not submitted any documentation which refutes the extensive evidence presented by Petitioners in their numerous attachments to the withdrawal Petition.

Mr. Green refers to various non-authorized aspects of permits and enforcement. Mr. Green provides no legal authority to make his case that a Notice of Noncompliance/Consent Order entered into with DOE by IDEQ and/or EPA provides any legal basis for DOE to continue operations of facilities which are known to be in violation of RCRA requirements for a facility to have a permit.

Mr. Green provides no legal authority for the assertion that a consent order provides any basis for interim status. Interim status is provided for by statute, not a consent order. (2)

The Tank Farm Facility, which feeds waste to the INTEC Liquid Waste Management System (ILWMS), is not RCRA compliant and in numerous instances cannot be made RCRA compliant. Mr. Green dodges this illegal facility altogether with respect to RCRA permitting requirements and the ongoing operations of this ancient and dangerous, noncompliant facility. RCRA blocks a hazardous waste processing operation from drawing from, or discharging to, non-compliant units which INEEL does with daily regularity at the tank farm.

Mr. Green views the permitting process as a series of separable, non-related actions. The public has a right to an overview especially where RCRA permitting actions are cumulative and must constitute the "functional equivalency" of an analysis under National Environmental Policy Act (NEPA). The INEEL High Level Waste/Environmental Impact Statement (HLW/EIS) has no description whatsoever for the INEEL Liquid Waste Management System and what the effects of such a system would be with respect to human environment and safety. (3)

Mr. Green apparently seeks to hide behind the facade of the EPA as justification for IDEQ's failings of its oversight and regulatory functions. Petitioners point out that a Petition was submitted to the EPA Inspector General in August 2000 dealing with the regulatory shortcomings inherent in both EPA and IDEQ's interactions with DOE. The regulatory failings of IDEQ cannot be cast off on EPA. IDEQ has failed to assert its regulatory responsibilities time and again. "Two regulatory wrongs don't make a right."

Mr. Green pats IDEQ on the back citing an EPA program audit of November 1999 as viewing "DEQ oversight and enforcement activities at the INEEL as a strength." A December 8, 1999 letter to IDEQ Director, C. Stephen Allred, from EPA Region 10 Administrator Chuck Clark states a different observation about IDEQ:

"We have also identified three high priority areas for program improvement based upon the Hazardous Waste Program Review and some of the findings in common with other reviews.

The number of IDEQ inspections at INEEL is irrelevant. A litmus test would be appropriate enforcement of a prioritized list of operations starting with the most problematic hazardous waste processing units. For openers, IDEQ should demand submission of Part B applications for major facilities and grant or deny those applications in some timely fashion. These non-compliant operations must stand-down until fully permitted. Moreover, IDEQ should have demanded the closure of non-compliant operations as provided in RCRA.

What we have seen is a flurry of Notices of Violations (NOVs) on relatively minor activities and no action on the major polluting facilities operating without permits. Mr. Green's statement that there have been 10 technical inspections at INEEL in three years provides no details on the thoroughness or the nature of such inspections. The belated IDEQ inspection of the Specific Manufacturing Capability facility (SMC) after shut down of the Uranium incinerator only involved a cursory review of paper work. IDEQ did not know of the existence of this SMC incinerator prior to the time that an employee injury suit was filed. IDEQ sent out investigators who were refused access because they lacked proper security clearances. IDEQ never observed the operations of the SMC oxide incinerator. Then IDEQ could conveniently claim that no RCRA violation existed. IDEQ really didn't know much about the situation and issued misleading reports/statements about issues of compliance.

The size of IDEQ's penalties compared to the size of the INEEL operations, nearly one billion dollars annually, would put the IDEQ's penalties in a nuisance category to be considered by DOE as merely a cost of doing business in Idaho. The penalties Mr. Green boasts that IDEQ levied on DOE when annualized would amount to about one-one hundredth of one percent of the INEEL annual budget, an amount that cannot "ensure the deterrence value of the enforcement program." From DOE's perspective, the fines are de minimis compared to the costs of building new RCRA compliant waste treatment plants at the INEEL.

The issuance of Notices of Non-compliance does not in itself constitute enforcement unless it results in punctual compliance by the polluter. After many years of violations at DOE's Los Alamos National Laboratory (LANL) nuclear site in New Mexico, and EPA's failure to do more than file a Notice of Non-compliance, a public interest group filed in 1996 a successful law suit to force compliance. In Concerned Citizens v. USDOE (No. CIV 94-1039-M), the court found "DOE merely protests that Plaintiffs exaggerate the safety risk of LANL's admitted non-compliance with what it characterizes as 'technical' regulatory requirements. To the contrary, Plaintiffs, and all the citizens of New Mexico, quite properly expect LANL to be utterly scrupulous in its observance of federal environmental regulations. DOE has not cited any authority which requires citizens' groups to defer to the voluntary compliance agreement between DOE and EPA. This agreement essentially represents EPA's promise not to sue: it cannot similarly bind the Plaintiffs. See e.g., Compliance Agreement at para. 128 'The terms of this Agreement shall apply to and be binding upon EPA and DOE'." [page 8 & 9] (Emphasis supplied).

IDEQ's claim that EPA Region X is fully informed of all regulatory actions related to INEEL is of little use when EPA also has a history of failing to implement effective enforcement of DOE operations not only at INEEL, but at other DOE sites such as LANL. The EPA oversight of IDEQ has been primarily pro forma. The primary responsibility for program effectiveness and legality remains with the State of Idaho under its agreement with the EPA. The public is left with no other recourse than to go to court to force the regulators to take the required action to enforce federal environmental laws.

IDEQ's statement that it is responding to violations cited in the INEEL False Claims suit (Mock/Lebow v. Lockheed Martin, No. CIV 96-0061-E-BLW) is an example where IDEQ only subsequently acted pursuant to and as a result of litigation. IDEQ did not actively seek out or discover the rampant, serious and numerous types of violations discussed in a 400 page complaint. This is clear evidence that IDEQ has poor inspection capabilities to have missed the violations cited in the False Claims lawsuit, because it did not independently find these wide spread violations. The public expects an aggressive, independent agency to protect public health and safety and the environment.

Mr. Green mis-characterizes the withdrawal Petition by stating "petitioners spend a great deal of effort criticizing the DEQ's permitting program for allegedly issuing permits that do not comport to the regulatory requirements applicable to the regulated units." On the contrary, Petitioners make the claim that the IDEQ permitting program is deficient. When the DOE can't comply with RCRA permit requirements, numerous facilities are run interminably on interim status, or under Part B applications. The pattern is that these then drag out for a decade or more, or under notice of noncompliance/consent orders. Petitioners make the point that out of 130 facilities at INEEL only a handful have permits.

Submission of INEEL RCRA applications has been going on for a decade and a half. Some twenty revisions have been submitted by DOE. Few, except for the most innocuous, have been approved by EPA or IDEQ.

Mr. Green fails to address the issue of IDEQ's failure to follow up on citizen complaints as part of the enforcement program. IDEQ has failed to follow up on Petitioners' contentions that permit applications have ignored the fact that key components were un-permittable, e.g., that waste tanks are unpermitted, past their design lifetimes and non-RCRA compliant. Specifically, it is illegal (under RCRA) to discharge effluent from a proposed RCRA permitted unit to a non-permitted unit which is the case with the Tank Farm and related tank units integral to the functioning of the proposed permit operation.

Mr. Green misquotes the Petitioners by stating: "A significant misstatement in the petition is that the DEQ has issued no permits for any treatment facilities at the INEEL. Obviously, the petitioners ignore the Advanced Mixed Waste Treatment Facility ..." Petitioners stated that "no permits have been issued on any major operating radioactive/hazardous waste processing plants" The AMWTF is under construction and is not operating.

IDEQ has interpreted the provision for interim status in such a way as to defeat the requirement of RCRA that a Treatment, Storage, Disposal (TSD) facility must obtain a permit. In 1984, Congress decided that interim status should not be allowed to last indefinitely. See discussion below). Mr. Green states "The DEQ has not requested or received a partial application for the HLLWE." This is the precise problem of which Petitioners complain. Mr. Green continues: "Upon issuance of the operating permit for the PEW and LET&D, the DEQ intends to process the HLLWE application as a major modification (Class III) to Volume 14." This is the functional equivalent to permitting a vehicle's tires for meeting emission control standards and later coming back and slipping through an expanded permit to cover the engine and exhaust system.

The High-Level Liquid Waste Evaporator (HLLWE) facility has been operating since October of 1996 at a capacity of 11,000 gallons per day. The HLLWE processes some of the most toxic substances in the world -- in the same category with nerve gas. It has been five years since 1996 and DEQ still has not demanded the Part B application and, more importantly, plans to sneak it into a "modification (Class III) to volume 14." This procedure will fundamentally limit public access to information and time for comment on the most hazardous waste processing unit currently in operation at INTEC.

The Interim Status comments of Mr. Green are at odds with any reasonable legal analysis and judicial interpretation of RCRA as well as contrary to representations contained in IDEQ's own application for hazardous waste management authority submitted to EPA.

The Idaho Hazardous Waste Program Summary -- March 2000, p.21, Review of Requests for Interim Status states:

"Interim status facilities were more common shortly after the inception of RCRA. Interim status was made available primarily for those TSD facilities already operating when the RCRA was promulgated, providing an interim period to achieve permit or closed status. Interim status might be requested in the event regulations are promulgated that render previously non-hazardous waste to be hazardous. Any request for interim status should be considered unusual and must be brought to the attention of the State Program." (Emphasis in the original).

IDEQ has and currently conducts its hazardous waste management program at INEEL in a manner which is contrary to the above statement made to the EPA by IDEQ in support of approval of its program.

42 U.S.C. 6925 (a) requires an owner or operator of a treatment, storage, disposal (TSD) facility to obtain a permit. In 1984, Congress amended RCRA and established a time schedule within which interim status facilities were to submit Part B of the permit application, Nov 8, 1992. (42 U.S.C. 6925). Congress carefully distinguished between permits and interim status. Interim status is not a permit. (40 CFR §§ 124.2, 270.2 definition of a permit).

Mr. Green has no legal authority for his claim (at p. 6) that the EPA clarification re: handling mixed wastes granted IDEQ legal authority to extend interim facilities beyond 1992. Mr. Green has no legal authority for the position that where a unit obtained interim status after 1984 that it could avoid the cut-off date of 11/8/92.

IDEQ apparently believes that the statutorily provided periods for submission of Part B applications can be ignored because a facility has interim status and that somehow interim status substitutes for or does away with the requirement of obtaining a permit. Thus, Idaho is now in the position of allowing operations to continue at facilities which have not obtained permits for nearly a decade or more after the statutory expiration of the submission date for Part B applications without providing definitive deadlines for compliance or closure.

Mr. Green states, " 40 CFR 270.73(g) is applicable only to units that achieved interim status prior to November 8, 1984. If a unit becomes subject to the requirement to obtain a permit after November 8, 1984, it is not subject to the cut-off date of November 11, 1992 nor the requirement to have submitted a Part B Application prior to November 8, 1988." Mr. Green's legal analysis is flawed. Under 42 U.S.C. 6925 (c)(2)(C) the owner or the operator of the facility must apply for a final determination on the application or else interim status will terminate upon the November 8, 1992. The final permit or final denial of an application was to have been issued by 1992 for interim status facilities. 42 U.S.C. 6925 (c)(2)(B). Congress did not want interim status facilities to operate indefinitely. (4)

A facility cannot operate with a permit for longer than 10 years without renewal. Idaho has allowed interim operations for a period which now is approaching or exceeds the outer limit for a facility to operate on a permit. Idaho and DOE have managed to turn interim status on its head, from being a temporary condition into a substitute so that no permit need ever be obtained. Idaho accomplishes this by not calling for a timely completed submission of the Part B application or by not making a final ruling on a Part B application. The Part B application for the PEWE and LET&D have only been submitted after strenuous demands by Petitioners. (May 5, 2000 PEWE NOI). Moreover, IDEQ fails to implement closure of non-compliant operations.

The Part B applications for the HLLWE and the Tank Farm have not been called for by IDEQ by Mr. Green's admission. Even where a Part B application is submitted, IDEQ allows the facility to operate for years without a final decision on the permit. This was the situation with both the NWCF and the WERF. The Part B application for the WERF was submitted in November 1986. The application was not denied until over fifteen years later in the year 2000 and after Petitioners September 6, 2000 WERF NOI.

In the 1988 DOE Workplan to Revise the RCRA Part B Application for the INEEL it is stated that (pp. 1-2):
            "Completion and submission of the revised RCRA Part B permit application for the INEL is anticipated to be completed within 5 years."
            "... Each RCRA Part B application supplement will be submitted by DOE-ID to EPA Region X as completed. The submissions will occur over a five year period ending October 1993."

We are now thirteen years past the time of the above statement.

IDEQ fails to call in Part B Permits and prefers to allow operations on interim status or consent order because IDEQ knows the facilities can't meet permit requirements. These are some of the Petitioners' unanswered questions that Mr. Green fails to address:

Mr. Green's claim of "misdirection regarding petitioner focus on process codes" is disingenuous, to say the least. IDEQ and DOE have already held conferences on a determination of the process codes for the Volume 14 facilities, the PEWE and the LET&D. The public was excluded from those deliberations. IDEQ and DOE entered into a definitional agreement so that the PEWE and LET&D do not have to comply with the standards for thermal treatment. (See 9/21/99 IDEQ RCRA Quarterly Meeting Minutes). (5)

Mr. Green further demonstrates IDEQ's disregard for RCRA law. Mr. Green states that "DEQ is not responsible for, nor concerned with the process codes input by DOE on these [EPA] forms." (pg 4). However, 40 CFR 268.40 requires the matching of hazardous waste to waste codes and the matching of waste treatment to waste treatment codes to ensure a given waste is correctly treated by an approved process for that type of hazardous waste.

Petitioners are appropriately concerned about those process code designations in view of the prior history of IDEQ allowing interim status facilities, such as the Calciner, to run on codes for something other than as an incinerator that were not protective of the public health and safety. IDEQ allowed the LET&D to operate on interim status when the LET&D never met the qualifications for an interim status unit. Table 1 at p. 5 of the 1988 Workplan describes the two LET&D Evaporators as "new units," not interim status units. The LET&D should have been required to have a permit as a new facility at INEEL. Additionally, as previously stated, the LET&D is/was discharging process effluent to non-compliant units.

Mr. Green does not deny Petitioner's assertion of his personal complicity in violating hazardous waste laws regarding land disposal restrictions to allow construction of the LET&D go forward.

Before technical problems and public comments about the PEWE and LET&D have even been addressed by IDEQ, Mr. Green has informed us with his letter that the permits will be issued for those facilities. (At p. 4. "Upon issuance of the operating permit for the PEWE and LET&D, the DEQ intends to process the HLLWE application as a major modification." (Emphasis supplied) )

Mr. Green does not deny the fact raised by Petitioners that the LET&D did not have interim status in 1993. Mr. Green asserts that IDEQ and EPA instead concurred in running the LET&D under a notice of noncompliance consent order (NON/CO). The fact that EPA and IDEQ agreed to run the LET&D under a notice of noncompliance/consent order gives absolutely no RCRA permit legitimacy to the LET&D. The use of the NON/CO is simply a stratagem devised by EPA, IDEQ and DOE to circumvent the RCRA permitting requirements for the LET&D. (See above discussion re: LANL).

Interim status is statutorily defined. Interim status does not arise simply because IDEQ or EPA want to take a unit which has no RCRA status and apply a NON/CO designation to that unit. An interim status unit must have been "in existence" during a statutorily prescribed time frame to qualify for interim status. The LET&D had no interim status and the misapplication of NON/CO to the LET&D by the EPA and IDEQ do not provide either interim status or fulfill RCRA permit requirements. The April 30, 2001, HWMA/RCRA Work Plan for the INEEL at p. C-2 for Volume Number 10 states that for the LET&D Evaporators, "Interim Status will be requested." This is a clear admission that interim status does not exist for the LET&D as was claimed for many years by the DOE and the IDEQ.

Public Participation

By operating facilities indefinitely on interim status, the IDEQ and DOE have been able to avoid the RCRA and Clean Air Act Statutes in addition to denial of the public participation rule with respect to hazardous waste management facilities.

While Mr. Green asserts that public attendance is not seen as being useful at meetings between the IDEQ and DOE, Petitioners have provided an extensive analysis as to how it would be beneficial to educating the public. Apparently, IDEQ has forgotten that its duty is to serve the public. Via Public Information Requests, Petitioners discovered the use of secret meetings between the IDEQ and DOE which are run under the phony title of "RCRA Quarterly Permitting Meetings." These clandestine meetings are in no way in accord with the goals of openness and environmental justice enunciated in the RCRA Expanded Public Participation Rule. The rationale for transferring enforcement authority to the state, was that the state could best defend the health and welfare of Idaho residents because they were closest to the people and most responsive to the health and safety needs of Idahoans.

At these IDEQ/DOE meetings, decisions are either made or discussions are held and information is presented which will be used in decision making relating to permit decisions. Petitioners have provided numerous examples of the types of back room deals that were cut. A lawsuit was undertaken by citizens and environmental organizations in response to the secret meetings and lack of public notice for the Advanced Mixed Waste Treatment Facility's plutonium incinerator. The lawsuit resulted in payment by DOE of one hundred fifty thousand dollars of legal costs to the plaintiffs. The AMWTF permits were not fought because Petitioners formally agreed not to do so in the legal settlement agreement. This was because, as identified by IDEQ attorneys, it was very likely that the incinerator portion of the plant would never be built. Petitioners believe that the permit process was nevertheless fatally flawed because the original permit was premised on the AMWTP plutonium incinerator which a Blue Ribbon Panel subsequently advised against.

IDEQ has been all too willing to keep the public from being timely involved with the permitting process for years with respect to facilities associated with the management of toxic liquid wastes at INEEL. Portions of the PEWE Part B Application were reviewed by IDEQ well before the pre-application meeting was provided by DOE. (See 5/29/99 RCRA Quarterly Meeting Minutes; 9/21/99 RCRA QM minutes, see also December 13, 2000 Comments of David B. McCoy to DOE RE: PEWE Part B Application). Why did IDEQ allow DOE to wait until December of 2000 to hold a pre-application meeting? The Part B application for the PEW, HLLWE and LET&D have been under discussion between IDEQ and DOE since at least 1996.

IDEQ has its own agenda and it does not include listening or responding to the public. IDEQ and Mr. Green have already decided to issue the PEWE permit even before public comments or technical problems have been considered and answered. Mr Green stated, p. 4, "Upon issuance of the operating permit for the PEWE and LET&D, the DEQ intends to process the HLLWE application as a major modification." In addition to being arbitrary and capricious, IDEQ and Mr. Green's predetermined decision to issue the evaporator permits is violative of due process. Before the technical review has even been completed or before IDEQ response to the public concerns, Mr. Green is telling Petitioners and the EPA that the IDEQ will approve the evaporators and after this done deal for the PEWE, LET&D, the HLLWE will be processed.

Then Mr. Green inappropriately informs Petitioners and the EPA that Petitioners have no right to challenge the IDEQ's secret decision making, and should remain silent in the mean time. A paragraph away on p. 4, Mr. Green states, "Until such time as the Department issues a permit for these Units or determines that a permit will not be issued, the Petitioners have no basis for criticism or praise of the Department's regulatory determinations for those units." Contrary to Mr. Green's assertions, IDEQ and DOE have already decided by a secret conference what the applicable process codes will be. These types of statements by a top ranking IDEQ official are among the reasons why Petitioners have filed a withdrawal Petition against IDEQ with the EPA and a complaint with the EPA Inspector General. Under the RCRA Expanded Public Participation Rule, the public has the right to participation from the beginning of the permitting process.

An appeal Petition and a Notice of Intent to Sue are both currently pending because the DOE (with acquiescence of IDEQ) deliberately avoided a pre-application meeting on the Volume 18 Debris Processing application and hid the permitting ball from the public for three years. (See attachment of Appeal to IDEQ regarding Volume 18 Debris Processing). Petitioner McCoy was promised that IDEQ would reopen the public comment period due to the receipt of new flood information. IDEQ then refused to reopen for public comment. Mr. Green ignores the existence of this Petition in his EPA letter. See also, Petition re: Notice of Intent to Sue for the PEWE and LET&D-- IDEQ allowed DOE to hold off on a public hearing for the LET&D which was added as part of the INEEL Liquid Waste Management System (ILWMS) until less than two weeks before submission of the Part B Application. The public received no notice that the Part B application had been changed to an application for an entire liquid waste management system.  See Petition for withdrawal (September 13, 2001) pages 19 through-21.

There is no reason why the public cannot at least be present and monitor these quarterly meetings and learn what is going on. IDEQ and DOE have a legal requirement under RCRA to provide transparency to the permitting process rather than predetermining permit outcomes without public participation. This issue of secret meetings is especially significant given IDEQ/DOE delays in providing information about proposed applications and the lack of timely, required public hearings on the issues.

The Idaho Attorney General legal analysis is simply incorrect that these meetings are not subject to the open meeting requirements under Idaho law. The meetings also fall under the federal open meeting statutes. There is possibly violation of Federal Advisory Committee Act (FACA), 5 U.S.C. App. II (1972) as amended) as well.

In summary, IDEQ's response to Petitioners demonstrates, in real time, a shameless disregard for hazardous waste management laws and disdain for public participation in the permitting process. IDEQ exhibits an arrogant inability to admit wrongdoing or admit the existence of any problems whatsoever and make the needed corrections to its program for oversight of INEEL operations. IDEQ must face its shortcomings to do a better job. IDEQ has poorly performed for over a decade to adequately protect the environment and community from the impacts of the most toxic waste operation in the United States. The public can only hope that the EPA will exert the necessary efforts to correct the long standing serious deficiencies which have been raised by Petitioners. Otherwise, in order to protect the public and environment, IDEQ's authority to manage any hazardous waste program at the INEEL should be set for withdrawal proceedings.

Respectfully submitted,


__________________

Chuck Broscious
Executive Director
Environmental Defense Institute
Troy, Idaho 83871-0220
V 208-836-6152
F 208835-5407

____________________

David B. McCoy
2940 Redbarn Lane
Idaho Falls, ID 83404
V 208-542-1449
F 208-552-0565


__________________

Erik Ringelberg
Executive Director
Keep Yellowstone Nuclear Free
Box 4838
Jackson, WY 83001
V 307-732-2040
F 307-732-0129

CC: *

Rick Albright, EPA Region X
Jeff Hunt, EPA Region X *
Katherine Thompson, EPA Office of Inspector General *
C. Stephen Allred, ID Department of Environmental Quality
Orville Green, ID Department of Environmental Quality
Darrel Early, ID Deputy Attorney General
Sylvia Lowrance, EPA Office of Enforcement and Compliance Assurance *

* Due to the problems with mail service CC's with * will also receive this letter electronically, however, the electronic version may not have the attachments, and therefore may be incomplete.

Attachments:

1.) INEEL Waste Management Processes to be Operated Under Interim Status/Consent Order
Received by IDEQ April 26, 1996 (Ruch Fax)

2.) INEEL, Lockheed Martin, February 21, 1996, Transmittal of RCRA Quarterly Meeting Minutes, PBQ-01-96

3.) Meeting Minutes with State of Idaho - March 23, 1991

 

Endnotes:

1. See, 2/8&9/96 RCRA Quarterly Meeting Minutes, p. 4 "ICPP Units - At the request of the OPB, a list of units that will continue to operate under Interim Status was prepared. Since a majority of these units operate in conjunction with or as an integral part of the NWCF, continued operation under a Consent Order in lieu of permitting appears to be the best option. A list of the proposed units is attached." (Emphasis supplied).

See also, 4/26/96 "DOE/ID INEL WASTE MANAGEMENT PROCESSES TO BE OPERATED UNDER INTERIM STATUS/CONSENT ORDER -- The following is a list of units that has been deemed unpermittable under RCRA and will continue to operate under interim status and a consent order. A comprehensive supplement to the Part A will be provided for these units." (See Attachment).

2. See February 8 &9, 1996 Quarterly Meeting Minutes at p. 10 -- ICPP discussion -- "If a significant amount of off-site waste will be treated, the unit may require permitting. Consent Orders are not permitted." (Emphasis in the original.)

3. The November 16, 1995 Quarterly Meeting Minutes, p.4, indicate that the cumulative risk from all thermal treatment units at INEEL have not been calculated.

4. 42 U.S.C. 6925 (c)(2)(C) states in pertinent part, "... Interim status under subsection (e) of this section shall terminate for each facility referred to in subparagraph (A) (ii) or (B) on the expiration of the five- or eight- year period referred to in subparagraph (A) or (B) whichever is applicable, unless the owner or operator of the facility applies for a final determination regarding the issuance of a permit under this subsection within - (i ) two years after November 8, 1984 (in the case of a facility referred to in subparagraph (A) (ii), or (ii) four years after November 8, 1984 in the case of a facility referred to in subparagraph (B)." (Emphasis supplied).

5. 9/21-22/99 IDEQ Quarterly Meeting Minutes-- confrerence call suggested to discuss the "definition" of the facility. The Conference was held in January, 2000. Petitioner McCoy asked for minutes and documents from the conference call. The documents have not been furnished to McCoy or placed in the public record for the ILWMS application. IDEQ should furnish the records.