DOE Files Notice of Appeal in Idaho Nuclear Waste Ruling

            Rebecca Boone reports 7/25/2006 in the Associated Press; "The U.S. Department of Energy has filed a notice of appeal of a federal court ruling that ordered it to abide by a 1995 agreement to remove all high-level radioactive waste stored at the Idaho National Laboratory.
            The Justice Department filed the notice on behalf of the Energy Department in U.S. District Court on Monday, the last day allowed under court deadlines. Officials would not say whether an actual appeal would be filed, though it appeared likely.
            In May, U.S. District Judge Edward Lodge rejected DOE's argument that the agreement signed with then-Gov. Phil Batt only covered waste such as rags, tools, gloves and dirt contaminated with radioactive material that had been stored in barrels on asphalt pads at the southeastern Idaho compound since 1970. The federal government had claimed it was not required to dig up and remove other rotting containers of waste that was indiscriminately dumped into open pits and buried before 1970. DOE officials have said that not moving that waste is safer than trying to dig it up for removal.
            State officials don't want the waste left in place, however, because some studies have shown that buried radioactive material is seeping toward the underground aquifer that feeds the Snake River, which runs almost the entire length and width of Idaho.
            In his ruling, Lodge found that the words "all transuranic waste" in the 1995 agreement meant the removal of all nuclear waste, not just some of it.
            In court documents, Barclay Samford with the Justice Department wrote only a general statement on what would be raised if an appeal were filed: Whether the district court's findings of fact are clearly erroneous, and whether the court erred in interpreting the settlement.
            "The state is disappointed that the Department of Energy has elected to appeal the decision," said Darrell Early with the Idaho attorney general's office. "We will await the next steps and vigorously defend the judgment we obtained at trial."
            While the case continues, the DOE will work on cleaning up the INL waste and on "the continued shipment of transuranic wastes out of the state under the 1995 agreement," spokeswoman Megan Barnett said in a statement. "We intend to continue to work in partnership with the state of Idaho to ensure the safe cleanup of our Idaho site."

INL Cleanup Plans Still

Inadequate

DOE's mailings to the public describing INL cleanup plans are attractive from a public relations perspective, however, they lack crucial basic information the public needs in order to make an informed decision about the adequacy of the program. For instance, the June 2006 brochure describing "Buried Waste Environmental Investigation" states, "Most of the transuranic waste is industrial trash - protective clothing, tools, equipment and sludge - created during production on nuclear weapons at the Rock Flats Plan. … Other radioactive waste is primarily composed of contaminate protective clothing, tools, filters, rags, and other debris."
This trivialization of waste characterization would lead the public to believe that there is no major problem - nothing to worry about. DOE fails to state that its own internal reports show the buried waste at the INL Radioactive Waste Management Complex (RWMC) contains 11,000,000 curies of radioactivity including 1,455 kilograms of plutonium from Rock Flats. The total buried plutonium alone contains 700,400 curies of radioactivity. [1] Internal DOE documents gained by EDI through Freedom of Information Act requests and other state and federal agency administrative records, show more than ninety (90) metric tons of high-level irradiated reactor fuel was dumped in the RWMC. EDI has provided an itemized listing of this irradiated reactor fuel interned at the RWMC SDA in an amicus brief in federal court. [2]

There is no dispute that the Rocky Flats waste dumped at the RWMC represents an immediate hazard. DOE, however, fails to acknowledge equally significant onsite reactor waste from INL programs such as Initial Engine Test (IET), SNAP-TRAN, SL-1 dumped at the RWMC during the period Pit-4 was open (1963-1967). This waste included reactors, reactor parts, irradiated fuel. [3] Much of this waste would also be legally classified as "Transuranic", “Class-C” or “Greater than Class-C Low-level waste” that the Nuclear Regulatory Commission (NRC) regulations specifically prohibit disposal in shallow land burial such as Pit-4. NRC regulations on “greater than Class C” state that waste must be interned in engineered deep geologic repositories due to the extreme radiological hazard this waste presents. [4]

DOE has kept up this buried waste cleanup charade for decades presumably hoping for a favorable Appeals Court ruling (see article above) that would allow the agency to obfuscate its legal obligations. Clearly, the government cares more about spending the requite cleanup money than preserving the long-term safety of Idaho's primary water source. Every year that passes, more hazardous and radioactive contaminates migrate irretrievably into the underlying Snake River Aquifer.

The same deficiencies of full disclosure are rampant in DOE's June 2006 public mailing describing the cleanup plan for the INL high-level waste tank farm soils and groundwater located at the Idaho Nuclear Technology Center (INTEC). DOE fails to disclose how much of the tank sediments will be left in the tanks, what specific contaminate concentrations are in the sediments, and how ineffective the "grouting" of these sediments permanently in place. DOE's own studies show that the grout cannot mix with the tank sediments and therefore cannot provide a waste disposal medium that meets regulatory compliance.
Again, DOE fails to offer groundwater contaminate levels and the corresponding Maximum Concentration Level limits in EPA's standards. This data is crucial for the public to fully understand the severity of the problem and draw their own conclusions on the appropriate cleanup.

The DOE's own internal INL documents indicates comments by INL officials that show grouting cannot be appropriately accomplished because (1) the tanks sit on a sand bed; (2) grouting under the tanks will be necessary, but the grouting of the non-RCRA compliant concrete tank vault containment structures will float the tanks and bend and distort the tank bottoms so that the grouting may bend or break the wastes grouted inside the tanks so that the waste will not be immobilized; and (3) there will not be any homogenous mixture formed within the tanks between the grout and the wastes; (4) the side panels and side walls and floors of the vaults are contaminated with radioactive and mixed (RCRA) wastes; (5) Vessel Off-gas Systems (VOG) problems are avoided as “outside the scope of this study”; (6) nine out of eleven tanks do not meet seismic criteria. The DOE report shows that mixing of the grout and the tank sediments will not occur. The displacement grout will simply “roll over” the solids, leaving potential High-Level Waste, Transuranic, and/or Greater than Class C Low Level Waste at the tank bottoms which is not immobilized. Comments indicate that adequate hydraulic studies have not been performed.

One DOE official comment states “since the new grout in the vault will not travel under the tanks and nine of them sit on sand, will this be a problem when the regulators see it or should we say right now that the sand will be contained by the grout and the old floor and therefore any waste or leakage will be contained, or something similar to this?" Another DOE commenter states, “The grout will roll over the solids.” Another commenter states, “The grout will not encase the solids, they will sandwich them between the grout and the bottom of the tank. Underneath the tank is sand. Under the sand is the existing tank vault. The vault has been proven to leak from the infiltration of rainwater.” The clear indication of these comments is that Idaho will not be protected by grouting from the High Level Waste contained in the tanks.

Numerous comments address problems which exist respecting how to “wash down” the tanks, i.e., removal of solids from the tanks by the use of a “mixing pump”. No backup plan exists for solids removals from the tanks in case the mixing pump plan doesn’t work. The mixing pump will not likely be sufficient to remove a significant fraction of the potential solids. There is no backup for solids removal from the tanks in case the mixing pump plan doesn’t work. The mixing pump will not likely be sufficient to remove a significant fraction of the potential solids and the mixing pump design has not been established. One commenter states in part, “This clean/wash/rinse activity will have little or no effect on the chemical composition of the solids since they are insoluble even in 2-3 molar nitric acid. This activity may or may not physically move the solids inside the tank or remove them from the tank. This clean/wash/rinse activity may also have little effect on the liquid SBW [Sodium Bearing Waste] held interstitially by the solids depending on the turbulence involved.”

The lack of a mixing pump design comment is resolved by stating that “Establishing the actual agitation and mixing effectiveness is beyond the scope of this study.”

DOE commenters state that double containment should be required by IDEQ. The existing concrete vaults do not qualify with the double containment required by Resource Conservation Recovery Act. [5]

A reference in the document was deliberately deleted to avoid the problems about 30,000 gallon tanks which sit on a gravel bed. Any liquid that might accumulate on top of the grout is handled as “being beyond the scope of work for this study.” None of the tanks initially passed a seismic analysis and analyses have not been performed. Corrosion rates may be well beyond design value for INTEC liquid waste storage tanks.

Comments in the document also disclose that the grout will not commingle/mix with the tank heels and therefore will not meet any of the EPA Land Disposal Regulations applicable to this waste even for deep geologic burial (i.e. Waste Isolation Pilot Project/Waste Acceptance Criteria).

The most egregious DOE action is trying to change the high-level tank waste classification to a lesser category it concocted called "incidental waste." The Natural Resources Defense Council together with tribal governments is currently litigating this arbitrary waste reclassification as a violation of Nuclear Waste Policy Act. This case has been the courts for a number of years and the outcome will affect how INL can proceed with closure of its high-level waste tanks.

For more information on this issue see EDI's public comments on our website.

Supreme Court Rules Against Government Whistleblower Rights

            In July, the Supreme Court shocked labor advocates by severely limiting free speech for all government employees. In Garcetti v. Ceballos, the High Court held that government employees' job-related speech is not protected by the first amendment. This means that federal employees, legally obligated by government statute to report corruption to superiors, can now be legally retaliated against for doing so.
            Richard Ceballos was a Los Angeles deputy district attorney who learned that a deputy sheriff may have lied to obtain a search warrant. When Ceballos alerted his superiors of the wrongdoing, he was told to keep quiet. As required by law, Ceballos informed the defense of his findings, an action that resulted in his removal from the prosecution, demotion, and transfer. In a 5-4 decision, the Supreme Court upheld this retaliation.
            The Court's ruling strikes a shameful blow against free speech rights, thus severely restricting public employees' ability to serve as guardians of good government. This ruling will have a serious chilling effect on the willingness of brave public employees to come forward and expose government corruption. The decision makes the next 9/11 or unnecessary Hurricane Katrina fallout more probable. America is now more vulnerable to fraud and waste, as the government has little incentive to act in a responsible and ethical manner. Whistleblowers perform the vital role of checking illegal activities and holding the government accountable to the high standards necessary for the safety and welfare of our country.
            This terrible Catch-22 must be fixed. Our country simply cannot remain content while its federal employees are penalized if they do not speak up when encountering wrongdoing, yet are likely to be fired if they do. Congress must strengthen the Whistleblower Protection Act, so that government employees are not punished for speaking out in the public interest. GAP's legislative team is mounting a campaign to push for floor votes on bills that will provide federal whistleblowers with the necessary anti-retaliation shields to come forward. This legislation has been unanimously approved by committees in the last two Congresses, but Senate and House leadership has refused to schedule floor votes, caving to Justice Department demands.
            The Government Accountability Project continues to be an outspoken advocate of Ceballos' cause, as his case illustrates how important failing to protect government free speech rights is a shining example of injustice.

Senate Approves Whistleblower Rights Breakthrough!
House of Representatives Action Remains Uncertain

         The Senate acted quickly to plug a government accountability loophole created less than one month ago, when the Supreme Court's Garcetti v. Ceballos decision canceled constitutional free speech rights for government workers carrying out their job duties. Senate bill S. 494, which includes that reform amidst a general overhaul of the Whistleblower Protection Act, was agreed to by unanimous consent as an amendment to the 2007 National Defense Authorization Act, passed 96-0 last evening. For the last three Congresses, the Senate Homeland Security and Governmental Affairs Committee (HSGAC) approved similar legislation, but until yesterday Senate leaders had refused to permit a vote. Next, designated members of the House and Senate will meet in a conference committee to reconcile the two chamber's versions of the defense bill before it is sent to the President.
         The Senate vote is a milestone in a six year campaign by Government Accountability Project (GAP) and our good government coalition. It is long overdue for Congress to protect federal workers and declare war on government misconduct. The Senate acted quickly and responsibly to close the accountability gap created by the Supreme Court. This unanimous Senate mandate for whistleblowers proves there is a political imperative among voters, and a viable base in Congress to restore open government. Now the question is whether House leaders get the message.
         The legislation reflected efforts by a bipartisan coalition including Senator Daniel Akaka (D.-HI), HSGAC Chairman Susan Collins (R.-ME), Finance Committee Chairman Charles Grassley (R.- IA), Senator Carl Levin (D.-MI), Senator Joseph Lieberman (D.-CT), and Senate Armed Services Chairman John Warner (R.-VA).
         S. 494 restores the mandate of the Whistleblower Protection Act, which has been gutted by judicial activism since 1994, when Congress unanimously approved it as the strongest free speech law in history - on paper. The amendment also strengthens the due process enforcement structure for paper rights, and applies them to a broader scenario of harassment such as security clearances, retaliatory investigations and gag orders.
         The Senate bill does not contain five critical reforms in House Committee-passed legislation. These reforms are: protection for national security whistleblowers at the FBI, CIA, NSA and other intelligence agencies, protection for government contractors, protection for baggage screeners, jury trials for a fair day in court, and neutralization of the government's use of the "state secrets privilege" as a way to cancel whistleblower trials.
         For more, see Government Accountability
Project website; www.whistleblower.org.

No Nevada Test Blast for Months, Judge Says

Ken Ritter reports in the Associated Press; "A non-nuclear explosion expected to cast the first mushroom cloud over the Nevada desert in decades won't happen at least until September, a government lawyer told a federal judge Friday.
The "Divine Strake" defense experiment "will not occur due to weather reasons during July or August," Justice Department lawyer Carolyn Blanco in Washington told U.S. District Judge Lloyd George in Las Vegas during a telephonic hearing.
"We have agreed at this hearing to provide notice to the court and plaintiff if this test is authorized to proceed," Blanco said.
National Nuclear Security Administration and the federal Defense Threat Reduction Agency officials have cited concerns that summer lightning could detonate 700 tons of explosive ammonium nitrate and fuel oil slurry that the government plans to pour into a huge pit for the blast. Designers said the blast would be of the same material but some 280 times larger than the bomb that destroyed the Alfred P. Murrah Federal Building in Oklahoma City in 1995.
Robert Hager, the Reno-based lawyer representing the Winnemucca Indian Colony and Utah and Nevada "downwinders" who earlier persuaded the judge to temporarily postpone the experiment, worried the government might reschedule the blast and provide short notice before going ahead.
But George said he was satisfied there would be time to hear legal and scientific arguments about whether the explosion would kick up radioactive fallout left from atmospheric and below-ground nuclear weapons tests. From 1951 to 1992 the government conducted 928 such tests at the Nevada Test Site, about 85 miles northwest of Las Vegas.
Announcements about the blast — first scheduled for June 2 and then June 23 — raised complaints from Nevada and Utah congressional representatives and rekindled fears of illness among downwind residents in Nevada, Utah and Arizona, who recalled government assurances that nuclear tests posed no risk.
The federal government postponed the massive explosion to allow time to answer legal and scientific questions about it effects.
The Defense Threat Reduction Agency said the Divine Strake blast would produce data about ground motion and shock waves about penetrating hardened and deeply buried targets. Critics have called the planned blast a surrogate for a low-yield nuclear 'bunker-buster' bomb."

DOE Says It Plans to Go Ahead with Divine Strake

            Lance Rake reports in the Las Vegas Sun (6/20/06); "Despite claims to the contrary, the planned detonation of 700 tons of chemical explosives at the Nevada Test Site is not quite dead.
            In a U.S. District Court hearing conducted by telephone last week, government officials said they had no immediate plans to move forward with the fuel oil-ammonium nitrate explosion, and agreed to a stipulation that the earliest the test could go forward would be September. Designed to simulate an atomic-sized blast on underground structures, the explosion was originally scheduled for June 2 but has been postponed because of the court challenge.
            Kevin Rohrer, an Energy Department spokesman working in Las Vegas, said Monday that his agency continues to work on the project: "We have not scrubbed it, canceled it, or whatever. We are still moving forward pending the outcome of the litigation."
            In Washington, however, congressional members got conflicting information about the blast, leaving them with little insight into the Defense Department's intentions or schedule.
            Rep. Shelley Berkley, D-Nev., said she had been told as recently as Monday that the Defense Department had indefinitely postponed the blast, only to learn later in the day that Energy Department officials in Nevada were laying the groundwork for the explosion.
            "They're double-talking. If it's postponed indefinitely, then why are they going forward with it, doing all this planning?" asked her spokesman, David Cherry. "Until such time that she is satisfied that the test can be done safely, she will not sign off on it. She is opposed."
            A spokeswoman for Senate Minority Leader Harry Reid said he believes the test will go off in the fall. Reid has supported the test as a way to develop conventional weaponry that could be strong enough to knock out underground targets, but he has reserved the option to reconsider if the blast is shown to have ties to nuclear weaponry or if the testing is harmful to residents.
            At the heart of the current legal challenge is a question about the blast's potential to pick up and transport particles out of the test area. Critics fear those particles might include radioactive material from the years of above and below-ground nuclear testing at the site.
            The Energy Department, in an environmental assessment prepared earlier this year and a follow-up notice in May, said there would be "no significant impact" from the test, but withdrew those findings this month "to re-evaluate the existing data, analyses and conclusions."
            The Nevada Division of Environmental Protection must grant a permit for the test blast, dubbed "Divine Strake," to proceed. Rohrer said the federal government has an obligation under federal law to obtain the state permit before it can proceed: "We have firm requirements under the Clean Air Act. We have been working vigorously with the state."
            The Energy Department, which manages the Test Site, is working on the environmental documentation, while the test itself would be conducted by the Defense Department.
            Attorney Robert Hager, who on behalf of the Winnemucca Indian Colony and other residents near the Test Site has been pressing for stricter oversight of the government's plans, said he worries that the government will continue to move forward with "junk science" and without adequate environmental review.
            "I am more concerned today than I was when they pulled the plug on this two weeks ago," he said after last week's court ruling. "This is good news for the downwinders - they know they won't be breathing radioactive dust at least until September."
            The Defense Threat Reduction Agency, the Defense Department agency conducting the test, has agreed to public meetings on the issue once the lawsuit is resolved. A Senate staffer said those meetings could come later this summer.
            Utah Sen. Orrin Hatch said it remains unclear whether the test can be conducted safely. The Defense Department "has assured me that the test will not go forward until we have the environmental data I've requested in hand, we've had time to analyze it, and the public has been fully informed," Hatch said in a statement.
            Republican Rep. Jon Porter, who along with Republican Rep. Jim Gibbons supports the project as part of continued weapons testing, said he trusts the state to determine whether the blast is safe for Nevadans. Funding for the project expires at the end of September 2007.
            Critics, among them arms-control advocates, have charged that the blast is a step toward a new, nuclear "bunker busting" weapon. Defense Department officials say the test could help them develop either a conventional or nuclear weapon.
            Hans Blix, the former U.N. chief weapons inspector, said in a report last month that countries should not pursue low-yield nuclear weapons for fear of creating a new arms race. "Of particular concern would be the adoption of doctrines and weapon systems that blur the distinction between nuclear and conventional weapons, or lower the nuclear threshold. Such modifications could over time have a domino effect and give rise to a renewed demand to resume nuclear testing," according the report issued by the Weapons of Mass Destruction Commission, of which Blix is chairman.
            "We're going to be asking our (elected officials) to demand a full-blown environmental impact statement," said Peggy Maze Johnson, executive director of Citizen Alert, a Nevada-based group opposed to the planned test. "We want more people and more science."

Candidate Calls Vote Eliminating Net Neutrality a
Tremendous Disappointment

            Dr. Ron Dolin, Republican candidate for U.S. Congress in New Mexico’s Third Congressional District expressed his disappointment over the U.S. House of Representative’s vote to end Net Neutrality. "Today we saw an out of touch Congress fail America and the American people," a frustrated Dolin asserted. "Freedom of speech on the Internet along with the right to unfettered access was sacrificed for the profit needs of corporate sponsors who seem to have Congress at their beckon call."
            "The process was as wrong as the outcome," Dolin exuded. One of the most aggressive lobbying campaigns in recent years was launched to purchase passage of the Communications, Opportunity, Promotion, and Enhancement Act of 2006 (COPE). Washington lobbyists spent millions of dollars and held out the promise of hefty campaign contributions for House members who did their bidding. "The Culture of Corruption was the big winner today," Dolin said. "I don’t think Americans realize the full impact of what their Congress has done."
            The COPE Act undermines a long-standing federal policy of prohibiting network owners from discriminating against competitors to shut out competition. In addition, the COPE Act privatizes the Internet and cedes control of how the Internet works to corporate telecommunication companies and cable providers. The COPE Act allows the Internet to be managed like cable TV where basic fee subscribers are given access to a small portion of the Internet at slow speeds. Second tier subscribers are given access to a little bit more of the Internet at slightly faster speeds. Only top tier subscribers are given access to most of the Internet at the highest speeds. The portions of the Internet that will be off limits will include blogs, independent news services, small businesses, entrepreneurial endeavors, and anyone who does not pay a fee to have their website added to an established list.
            "When Congress authorized building Hoover Dam during the depression, that was courageous leadership," Dolin lamented. "When Congress approved construction of the interstate highway system, that was visionary wisdom. When Congress funded the development of the Internet, that was investment brilliance. All these measures had profoundly positive impacts on our economy, prosperity, and society. What Congress did today is an insult to Americans and an assault on the underpinnings of what makes our nation profound," Dolin iterated. "It is akin to using taxpayer money to build an interstate system and then giving it to corporations for free. Those corporations – who invested nothing in the development – in turn charge you to enter and exit, tell you what on/off ramps you can use, and have special access lanes where the more you pay the faster you can travel. In short, they reap huge profits by controlling and charging you for something you already own."
            "The Internet is perhaps the greatest educational tool ever devised," an exacerbated Dolin extolled. "Students can use the Internet to quickly look up facts, research subjects, delve deeply into topics, and explore their imagination. As an educator what Congress did just hurts…it really hurts."

References

1. (a) A Comprehensive Inventory of Radiological and Non-radiological Contaminates in the Waste Buried in the Subsurface Disposal Area of the INEL RWMC During the Years 1952-1983, Volume 1, Idaho National Engineering Laboratory, EG&G Idaho, Inc., June 1994, page 6-25, herein after referred to as EGG-WM-10903.
(b) EGG-WM-10903, page 2-76 and C-5 Table C-1. This estimate is ONLY plutonium shipped from Rocky Flats to INL's Subsurface Disposal Area between 1952 and 1983. Therefore the total quantity of plutonium from all sources is significantly more than the 1,455 kg. Internal Rocky Flats report estimates an additional 800 kg of unaccounted plutonium was shipped to INEEL SDA that was not recorded in shipping manifests. DOE's Rocky Flats Plant conducted a mass balance inventory of plutonium and determined that 1,191.8 kg of plutonium was "unaccounted." Part of this shortfall was attributed to an estimated 300 kg in the duct-work and glove-boxes, and the remaining 891 kg shortfall was shipped to INEEL for disposal and was not included in the shipping manifests. Limits of 267 grams of plutonium-239 that could be disposed in the same container were regularly exceeded. The numerous fires at Rocky Flats and the resulting cleanup operations that shipped the decontamination waste to INEEL added to the accounting errors. Therefore, the total Rocky Flats plutonium dumped in the Subsurface Disposal Area could be as much as 2,346 kg (1,455 + 891).
(c). EGG-WM-10903, page xxix, Table S-2.
2. (a) Environmental Defense Institute Amicus Curie Brief, U.S.A. v. Kempthorne, Civil No. 91-0054-S-EJL, filed in U.S. District Court for the District of Idaho, August 26, 2002.
3. EG&G-WM-10903, page 1-7, 2-21.
4. EDI Public Comments on RWMC Pit-4 Remediation (5/26/04) and EDI Report "What Waste is Slated for INEEL Plutonium Incinerator" (1/22/00) available on EDI website http://environmental-defense-institute.org
5. Comments by INEEL technical experts on 1.) INTEC Tank Closure Plan 90% Final; 2.) INTEC New Liquid Waste Storage Tanks 90% Final; and 3.) Tank Farm 90% Incidental Waste Study. Also see EDI comments 5/13/05 on INTEC high-level waste tank closure plan for more details. For more information http://environmental-defense-institute.org/publications