Environmental Defense Institute 

August 8, 2000

Chuck McCollum
Divisional Inspector General for Audits
U.S. Environmental Protection Agency
Office of the Inspector General for Audits
Western Audit Division
75 Hawthorne Street
19th Floor, Mail Code I-1
San Francisco, CA 94106-3901

Gregory Friedman
Inspector General
U. S. Department of Energy
1000 Independence Avenue SW
Washington, DC 20585

Dear Mr. McCollum, and Mr. Friedman:

RE: Request for EPA and DOE Inspector Generals to investigate the State of Idaho Department of Environmental Quality, EPA Region 10, and Department of Energy Idaho Operations Office, concerning Resource Conservation Recovery Act, Toxic Substances Control Act, and Clean Air Act permitting procedures at the US Department of Energy's Idaho National Engineering and Environmental Laboratory.

We would like to bring to your attention the failure of the Environmental Protection Agency Region 10 ("EPA") to exercise adequate oversight over the Idaho Department of Environmental Quality ("IDEQ") and the Department of Energy Idaho Operations Office's ("DOE") failure to meet legal requirements with respect to hazardous waste facilities at the Idaho National Engineering and Environmental Laboratories ("INEEL") located near Arco, Idaho.

This request for an investigation is brought by the Environmental Defense Institute, Inc. ("EDI"), Troy, Idaho, primary requestor, Keep Yellowstone Nuclear Free Inc.("KYNF"), Jackson, Wyoming, and David McCoy, Idaho Falls, Idaho . EDI and KYNF are non-profit public interest groups organized under Internal Revenue Service 501(c)(3) code and dedicated to environmental, health, and safety issues at the INEEL.

We would like to cite and describe two specific examples of facilities for which the IDEQ has, in our opinion, failed to require proper licensing under the Hazardous Waste Management Act ("HWMA") as amended by the Resource Conservation and Recovery Act ("RCRA"). These facilities are the New Waste Calciner Facility ("Calciner" or "NWCF") and the Waste Experimental Reduction Facility ("WERF"), both of which have been allowed to operate on "interim status" as an extended illegal substitute for HWMA/RCRA permitting processes.

We acknowledge that DOE recently announced a temporary "stand-down" of the Calciner portion of the NWCF after EDI, KYNF, and McCoy filed a Notice of Intent to Sue DOE, EPA, and DEQ. DOE is withholding a final decision on the Calciner pending the outcome of the INEEL High-level Waste Environmental Impact Statement. For the purposes of this request, "Calciner" or "NWCF" refers to, but is not limited to, all waste treatment operations occurring in the NWCF (CPP-659) and directly connected to via waste service lines to CPP-659 such as the High-Level Waste Evaporator (HLWE), Possess Equipment Waste (PEW), Liquid Effluent Treatment and Disposal (LET&D), Debris Treatment, and HEPA Leachate Treatment.

Additionally, we acknowledge DEQ's July 31, 2000 announcement of their intent to deny DOE's WERF RCRA permit application. Despite DEQ's action, it remains uncertain what the final outcome to this announcement will be or how long the WERF will continue to operate. DOE's public announcements state the Department's intent to continue WERF operations through September 30, 2001. Therefore, this request remains germane. References to the WERF operations include, but are not limited to, all operations in the vicinity of the WERF and the final disposition of the waste generated by WERF operations.

The EPA has known, for more than a decade, of the failure of the IDEQ to require proper licensing of the NWCF and the WERF and numerous other INEEL facilities. EPA has failed to exert proper oversight and demand proper enforcement by IDEQ as the RCRA authority for Idaho since the state was granted primacy in 1990. The arguments presented herein focus on the Calciner and WERF operations as representative of DOE's illegal avoidance of the law. A complete identification of the dozens of other INEEL hazardous waste treatment operations subject to RCRA but unpermitted and functioning under interminable interim status is beyond the scope of this letter, but must be conducted by EPA's Inspector General and DOE's Inspector General.

DOE has admitted that, "It is not possible to comply with all of the analytical and operational requirements necessary to permit the NWCF calciner, evaporator and associated tanks and piping (40 CFR 264 and 270). (Exhibit 1....Justification for the Continued Operation of the NWCF and TFF [Tank Farm Facility at p. 2 as HWMA Interim Status Units Through a Consent Order). "The tanks associated with the NWCF cannot be visually inspected and restricted access due to high radiation fields make it impossible to line the vaults and to permit these tanks as HWMA/RCRA storage units (40 CFR 264.191 and 264.193)." (Exhibit 1 pg. 3).

In defiance of the letter and intent of RCRA that hazardous waste facilities be permitted, IDEQ and EPA have allowed the NWCF, WERF, PEW, LET&D facility, the High Level Liquid Waste Evaporator (HLLW) and the Tank Farm Facility (TFF) to continue to run on interim status despite EPA's and IDEQ's knowledge that the facilities cannot meet RCRA permit requirements. (Exhibit 2... INEL (sic)Waste Management Processes to be Operated Under Interim Status/Consent Order). EPA and IDEQ use interim status to circumvent the RCRA permit process where a hazardous waste unit cannot qualify for a RCRA permit.

It is probable that of the approximate 130 facilities subject to the HWMA there are numerous other facilities at the INEEL which have not been properly permitted under RCRA and other federal statutes.

The New Waste Calciner Facility

The incineration of high-level liquid waste at INEEL began in 1963 with the Waste Calcine Facility, which was replaced in 1982 with the New Waste Calcine Facility (NWCF). Since August 1982, the NWCF Calciner incinerated 3,764,600 gallons of high-level liquid waste generated from the reprocessing of reactor fuel for the recovery of highly enriched uranium used in the military nuclear weapons program. The NWCF's High-level Liquid Waste Evaporator (still in operation) started operating in June of 1996, and processed (as of 1999) an additional 300,000 gallons of high-level waste from the Tank Farm. This brings the total processed high-level waste volume to well over 4 million gallons. The shear volume of waste incinerated, coupled with the extreme radioactive nature of the waste, offers indisputable evidence that this plant represents a significant hazard to workers and the public. Numerous accidents have occurred at the Calciner which caused worker exposures and offsite releases of radioactive chemicals causing environmental contamination. (See Exhibit 3).

The process involved a technology known as calcination. Calcination of high-level radioactive wastes involves the use of fluidized-bed combustion of kerosene to dry out nitric acid high-level wastes. The high-level wastes come from the Idaho Chemical Processing Plant (ICPP) which extracted plutonium and highly enriched uranium from spent naval reactor fuel shipped to the Idaho site. The ICPP's name was recently changed to Idaho Nuclear Technology, and Environmental Center (INTEC).

The liquid high-level waste was generated from the chemical separation of highly enriched uranium and other materials from "high-burn-up" spent naval reactor fuel at the Idaho Chemical Processing Plant. These nitric acid wastes contained large concentrations of transuranic and fission products and were stored in nineteen underground stainless steel tanks. The wastes are then drawn from the Tank Farm and sprayed into a vessel containing an air-fluidized bed of granular calcine solids. The bed is heated by combustion of a mixture of kerosene and oxygen that burns off the liquid leaving behind a granular mixture. In effect calcination is a technology to bake away the liquids from the waste. In doing so, this process involves the handling of extremely dangerous radioactive wastes - which in minuscule quantities can be lethal. All the liquid is volatilized, and goes out the stack while the radioactive fission products that do not go out the stack, adhere to the granular calcine bed material in the vessel.

The NWCF houses several high-level waste treatment systems that DOE arbitrarily treats separately from a regulatory perspective. High-Level Liquid Waste Evaporator in the NWCF "... is used to concentrate dilute Tank Farm waste. The unit consists of two evaporator vessels, flash column, and a constant head feed tank (four tanks total). The estimated throughput is 5,200 gal/day." [INEL Interim Status Analysis, WINCO, 6/18/90, page 8] A HEPA Filter Leachate treatment and a Debris Decontamination operation are also co-located in the NWCF. Though a permit process is underway for these two discrete operations (HEPA and Debris operations) in the NWCF, the effluent is piped to treatment operations that are not under a permit process.

The NWCF involves several additional systems not co-located in CPP-659 but are in adjacent buildings. These operations process effluent from NWCF operations and include the Process Equipment Waste (PEW) CPP-605, and the Liquid Effluent Treatment and Disposal (LET&D) CPP-1618. To date, no NWCF operations or related effluent treatment operations have RCRA permits, however they are allowed to operate under interim status. The arguments presented herein focus on the Calciner operations as representative of DOE's illegal avoidance of the law. A complete review of the other INEEL hazardous waste treatment operations subject to RCRA but unpermitted and functioning under interminate interim status is beyond the scope of this paper but must be conducted by EPA Office of Inspector General.

The high-level liquid waste Calciner and Evaporator, if not adequately controlled can be a major aerosol emitter of extremely dangerous radioactive wastes. John Walsh, Spokesman for the Department of Energy, is reported as stating that "the Calciner, built in 1962 and upgraded in 1982, does not need state or federal permits because it predates environmental regulations."

The NWCF and related INTEC operations (where the Calciner is located at INEEL) have a disturbing history of accidents, environmental contamination and excessive worker exposures. According to official records obtained from the Energy Department between 1991 and March 2000:

• •There were at least 34 incidents where equipment, and filter failures, power outages, and poor conduct of operations resulted in excessive atmospheric releases of radioactive aerosols. In some cases there was widespread and severe contamination. For example, in April 1992 employees were forced to remain indoors after an accidental release from the main stack went beyond the plant boundary. Forty acres of land were contaminated.
  
• •On March 25, 2000, the Calciner exceeded regulatory limits for release of hazardous pollutants to the air.
  
• •In 1991, an explosion at INTEC caused worker over exposures and significant damage to the facility.
  
• •There were at least six fires at INTEC. Inspectors found several instances where fire and radiation alarms were shut off.
  
• •There were at least 19 incidents where workers were overexposed to radiation.
  
• •DOE safety oversight teams have reported a continuing decline in safety. According to a 1998 September report by the DOE Headquarters Office of Environment, Safety and Health, "Workplace safety at INEEL has deteriorated since 1994 . . . corrective action plans found that deficiencies were not resolved and that lessons learned from previous accidents were not being effectively applied. In environmental management and controls, data indicate weak regulatory compliance and inadequate, short-term, quick fix solutions . . . one fifth of all INEEL occurrences in 1997 were related to radiation protection (personnel contamination) and environmental management occurrences have increased by one third from 1994 to 1997."
  
• •In the last five years, the Defense Nuclear Facility Safety Board issued nine unsatisfactory reports on the Calciner and related High-Level Liquid Waste Evaporator. All five reports challenge the Calciner's readiness to restart operations. The June 2, 1997 report "commented on the failure of the DOE Idaho Operations Office to identify inadequacies in the contractor's state of readiness before certifying readiness for operations and commencement of the Operational Readiness Review for the [Calciner] HL liquid waste evaporator."
  
• •The December 1999 INEEL High-level Waste EIS says that "technical constraints, have hindered DOE's efforts to sample off-gas emissions from the New Waste Calcine Facility," so there is uncertainty about what is going out the stack.
  

The Calciner was allowed by EPA and IDEQ to run for 18 years without allowing the public to be involved in any meaningful manner with a permit process under RCRA, NEPA, the Toxic Substances Control Act ("TSCA"), or the Clean Air Act ("CAA"). No TSCA permit was addressed by the IDEQ, EPA and DOE although substances requiring a TSCA permit have been continuously burned and emitted from the Calciner. Although the Calciner incineration vessel, which incinerated nuclear waste for 18 years, is currently in standby status until January, 2001, the administrative process, whereby this facility was allowed to operate under interim status without ever receiving a full RCRA and other permits, noncompliance with the NEPA, without ever any public participation, and with the full knowledge of EPA and the IDEQ that the Calciner could not comply with RCRA requirements to receive a RCRA permit, should be scrutinized. The failure of the administrative process and lack of enforcement with respect to the Calciner and the Evaporator was concurrent with and also continues at present with respect to the WERF, an operating nuclear incinerator since 1982 that has no RCRA or TSCA permits.

A sequence of Consent Orders, Notices of Noncompliance and Modifications of Consent Orders were used as an improper substitute for RCRA permit requirements and constitutes a deliberate avoidance and impermissible de facto waiver of the permit requirements of RCRA. The operation of the Calciner for the period from 1982 to the present is not permissible under the time constraints set forth in RCRA and serves to defeat the objectives and national policies contained in RCRA.

Rather than diligently demanding and acting upon a required RCRA completed permit application from DOE for the Calciner, the EPA and the IDEQ have illegally allowed the Calciner to operate continuously under an expired "interim status" along with a string of Notices of Noncompliance (NON) followed by Consent Orders and Modifications to Consent Orders. The use of consent orders and modifications of consent orders deprived the public for 18 years of the public's legal right under RCRA to an opportunity for notice and hearings related to the Calciner and Evaporator, including an adequate NEPA review.

RCRA requires that operating an incinerator facility requires a permit. (42 USC § 6925). RCRA required that all interim status hazardous waste facilities must have a permit or close by Nov. 8, 1992. (42 U.S.C. § 6925 © ) (2) (B) ). The statutory scheme of RCRA is clear that running an incinerator on interim status for an extended period of time is not permissible because RCRA sets forth a cut-off date for expiration of interim status of an incinerator where an application for a final determination for issuance of a permit has not been submitted within two years. If Congress had determined that a permit was not necessary to run an incinerator facility, Congress could have stated that any incinerator could simply be operated forever under interim status.

Under 42 U.S.C. § 6925 © ) (2) (B) all interim facilities were either to have been issued a permit or denied a permit by November 8, 1992. 40 C.F.R. § 264.1 (a ) states that RCRA interim status does not constitute a permit.

Any permit issued under 42 U.S.C. § 6925 ( c ) was to be issued "for a fixed term, not to exceed 10 years in the case of any land disposal facility, storage facility, or incinerator or other treatment facility." EPA and IDEQ have allowed INEEL units to run on interim status far longer than could be allowed even if the units had been fully permitted under RCRA.

Interim status requires the filing of a two-part (Part A and Part B) application by certain dates. (40 C.F.R. §§ 270.10 (e) (4), 270.73 (f) ). 40 C.F.R .§ 270.73 (b) provides for termination of interim status as provided in 40 C.F.R. § 270.10 (e) (5). Part B of an application must be filed before a permit can be issued. 40 C.F.R. § 270.10 (e) (5) provides that the failure to furnish the information necessary for the Part B application in full or on time is grounds for the termination of interim status. Part B of the application consists of general information requirements and specific information requirements of 40 C.F.R. § 270. These requirements are important with respect to public health and environmental safety and are necessary in the application for the EPA to be able to determine whether 40 C.F.R. § 264 standards have been met.

What kind of facility is the Calciner? For purposes of regulation, was the Calciner an incinerator, a boiler, an industrial furnace, a sludge dryer, or a carbon regeneration unit? Sometimes the DOE claimed that the Calciner was being run under 40 CFR § 265 Subpart P as a thermal treatment unit. Other times the DOE claimed that the Calciner was a miscellaneous unit. As discussed below, these were the wrong classifications. Although EPA applied the proper categorization of an incinerator to the Calciner in 1990, both EPA and IDEQ failed to enforce the proper standards of operations of the Calciner under 40 CFR § 264 Subpart O or 40 CFR § 265 Subpart 0 which are applicable to incinerators. Moreover, as shown below, IDEQ did not apply or enforce the proper categorization to the Calciner as an incinerator.

The Calciner has been knowingly and intentionally run by the DOE with the approval of the IDEQ and the EPA in the absence of proper application of the Code of Federal Regulations which apply to nuclear waste incinerators. By definition, under 40 CFR § 260.10, the Calciner was an incinerator. In 1990, the DOE, IDEQ and EPA all knew that the Calciner, as a fluidized bed device, is an incinerator which had to comply with 40 C.F.R. § 264 Subpart O as set forth by 55 Federal Register 17370. (See Exhibit 4). By letter of 2/20/91, the EPA RCRA Permits Section Sikorski informed the IDEQ Hazardous Waste Compliance Supervisor that the Calciner at a minimum "will be expected to meet the requirements under Part 270 and Part 264 Subpart O and that "satisfaction of these requirements is demonstrated through performance of a trial burn and subsequent operation under strictly controlled operating conditions (e.g., maximum/minimum temperatures)..." (Exhibit 5).

Because IDEQ knew the Calciner could not comply with the 40 C.F.R. § 264 Subpart O standards of operation regarding a trial burn and adequate characterization of waste feed and emissions, the EPA and IDEQ instead allowed the Calciner to be operated under 40 CFR § 265 Subpart P as a "thermal treatment unit." IDEQ and EPA failed to apply and enforce the 40 CFR § 264 Subpart O standards for incinerators. Allowing the Calciner to operate for years as a "thermal treatment" unit under 40 CFR § 265 Subpart P provided a lower standard of requirements for operation which sacrificed public health and safety to operational needs. Subpart P refers to facilities that thermally treat hazardous waste in devices other than enclosed devices using controlled flame combustion.

Even under the lower standards of Subpart P, the EPA and IDEQ did not enforce compliance with the waste and emissions characterization requirements, but allowed continued operations of the Calciner well after the time when it was decided that the waste and emissions could not be properly characterized. 40 CFR §265.13 provided that: "Before an owner or operator treats, stores, or disposes of any hazardous wastes, or nonhazardous wastes if applicable under Sec. 265.113(d), he must obtain a detailed chemical and physical analysis of a representative sample of the wastes. At a minimum, the analysis must contain all the information which must be known to treat, store, or dispose of the waste in accordance with this part and part 268 of this chapter." (Emphasis supplied).

The EPA and IDEQ's failure to demand the Calciner comply with RCRA before operations amounted to violation of hazardous waste laws by creation of an impermissible de facto waiver by EPA and the IDEQ that the requirements of RCRA be met, i.e., that a permit had to be either issued or denied by EPA and the IDEQ for the Calciner in a timely fashion. (42 U.S.C. § 6925 (a) ). By not requiring the Calciner and other INEEL hazardous waste management units to obtain RCRA permits, the EPA and the IDEQ have failed and continue to fail to carry out their mandated duty to protect the public health and the environment. This is because the following requirements and performance standards contained in 40 C.F.R. § 264 Subpart O which apply to the owners of hazardous waste incinerators were never imposed or met prior to or after the normal operation of the Calciner:

1. Trial burns were not conducted under restricted conditions (40 C.F.R. § 270.62);

2. Waste feed to the incinerator was not monitored to see if it was within physical and chemical composition limits specified by a permit (40 C.F.R. § 264.345 (b) );

3. No treatment of principal organic hazardous constituents (POHC) to the standard for each waste feed to be burned (40 C.F.R. § 264.343 (b)(1);

4. No assurances as to design, construction and maintenance so that, when operated in accordance with operating requirements specified under 40 C.F.R. § 264.345, a destruction and removal efficiency of 99.99% would be attained for each POHC;

5. No strict monitoring of the stack emissions; any type of waste could be burned because no permit existed to specify what wastes the Calciner was allowed to burn and no specificity existed regarding required operating conditions to burn those wastes;

6. No conditions or controls were established with respect to fugitive emissions, maintenance of combustion zone pressure lower than atmospheric pressure, combustion gas velocity, automatic cut off of waste feed or requirements to cease operation when changes in waste feed exceeded design limits;

7. No requirements for daily visual inspection of the incinerator and associated equipment (pumps, valves, conveyors, pipes, etc.), nor for leaks, spills, fugitive emissions, and signs of tampering;

8. No requirements for weekly testing of emergency waste feed cutoff system and associated alarms;

9. No requirements for monitoring and inspection data to be recorded with the records placed in an operating log (40 C.F.R. § 264.73).

40 C.F.R. § 264 Subpart O standards must be shown to be met by operators

40 C.F.R. § 264.345 requires for incinerators to be operated in accordance with operating requirements specified in the permit. Because no permit was issued, there were no conditions previously set by EPA or the IDEQ in a permit under which to control the operation of the Calciner and related operations. Thus, the Calciner could not comply with operating requirements 40 C.F.R. § 264.345 and performance standards set by 40 C.F.R. § 264.343 and should not have been operated without a permit. Part A of the application only provided generalized information.

In order to receive a RCRA permit, the DOE was required to, but could not characterize the waste going into the Calciner and the emissions coming out of the stack. The Part B application was submitted for the Calciner in 1991. DOE was informed by IDEQ on 10/1/91 that the waste feed characterization and emissions characterization were issues requiring resolution. (Exhibit 6). On 4/26/96 the DOE admitted to IDEQ that the Calciner along with numerous other units at INEEL were "unpermittable" facilities. IDEQ was informed of this fact by a memorandum which it received from DOE on 4/26/96 when DOE furnished IDEQ notice of units that were deemed "unpermittable" under RCRA. The 4/26/96 DOE memorandum is proof that additional units at the INEEL also were unpermittable, including, but not limited to: the DPP 603 Storage tank; CPP 604 PEW Evaporators; CPP 604 Tank Farm Tanks; the CPP 659 NWCF Evaporator Tank System, the NWCF Storage and Treatment Tanks (VES-NCC-101, -102, -103, -108, -109, & -122; the CPP 1618 LET & D Evaporators; the Calcined Solids Storage Facility; and the ICPP Tank Farm. (See Exhibit 2). IDEQ waited six years until 11/20/97 before sending another letter to DOE referring to the 1991 permitting issues of waste feed and emissions characterizations requiring resolution pertaining only to the CPP 659 NWCF Calciner.

In February 7, 1997, the EPA informed IDEQ that the EPA review of the air inspection report of the NWCF revealed that, "If INEL did not receive a permit to construct from IDEQ for the New Waste Calcining Facility prior to August 7, 1977, INEL may have violated 40 CFR§52.21 (I), (j), and (k) for constructing a major source of nitrogen oxide emissions without a permit, failing to install best available control technology, and failing to conduct an air quality analysis, respectively." Then EPA further stated, "If possible, please do not release copies of the compliance analysis." IDEQ allowed construction of the NWCF without even a proper construction permit and EPA asked IDEQ not to release the EPA analysis of IDEQ failure in compliance with permitting requirements for the Calciner as a major nitrogen oxide emitter. (Exhibit 7).

Under EPA's oversight, IDEQ allowed the Calciner to process inorganic waste in violation of 40 CFR 268.3 which prohibits combustion of the hazardous waste codes listed in Appendix XI of that part. Those codes include, but are not limited to, prohibition of combustion of waste which has resulted in emissions by the Calciner of toxic wastes such as arsenic, barium, beryllium, cadmium, chromium, lead and mercury.

In October 13, 1997, the DOE raised the issue that 40 CFR § 268.3 would prohibit the calcination of inorganic wastes at the NWCF, if the NWCF were "perceived" as a combustion technology (which it is). The Calciner has burned many inorganic wastes, such as mercury, beryllium, nickel, lead which are covered by 40 CFR § 268.3. 40 CFR § 268.3, Appendix XI defines combustion as any thermal technology subject to 40 CFR 264 Subpart O. The DOE then proposed to the IDEQ that 40 CFR 268.3 did not apply to the NWCF since it was operating under 40 CFR 265 Subpart P. The DOE told the IDEQ "your concurrence on this matter is crucial prior to restarting calcination of high level waste to meet the conditions of the Settlement Agreement." DOE wanted the concurrence so that DOE could calcine sodium-bearing high-level waste. (Exhibit 7).

IDEQ failed to enforce 40 CFR § 268.3 in order to keep the Calciner operating, thereby sacrificing public health and safety. The IDEQ, without stating any legal basis or facts for its position, informed DOE that 40 CFR 268.3 is not applicable to current operation of the NWCF under 40 CFR § 265 Subpart P. The IDEQ then went on to state, "However, when a final regulatory determination as to the applicability of 40 CFR, Subpart X or O associated with permitting is made, compliance with this and other regulations may need to be revisited." (Exhibit 9).

Thus IDEQ applied whatever regulatory standards were convenient to DOE at the moment. Even though waste feed and emissions had not been properly analyzed for the public health and safety, IDEQ and EPA as the oversight agent were willing to look the other way while DOE burned high-level waste in a nuclear waste incinerator without proper application of regulatory standards and in violation of the applicable regulatory standards of 40 CFR § 264 Subpart O.

IDEQ, as the agency to apply and enforce the proper operating standards to the Calciner, left it up to the DOE to determine what the appropriate standard for issuing a permit would be. A 10/20/97 IDEQ letter stated, "...the DOE must clearly identify whether a permit for the NWCF will be sought under the provisions of 40 CFR Part 264, Subpart X or Subpart O." It was clear from this statement, however that IDEQ knew that 40 CFR 264 and not 40 CFR 265 Subpart P was the applicable standard, although IDEQ chose not to enforce that standard. IDEQ did not revisit the issue of the Calciner illegally burning inorganic wastes.

Rather than issue a denial of the permit for failure and inability to provide the necessary information, IDEQ and EPA allowed the continued operation of the Calciner and other unpermittable facilities under interim status/consent order. Additional memoranda written by IDEQ and EPA indicate that the Calciner could not be permitted because the information necessary to complete a Part B application could not be provided by DOE for the Calciner. EPA and IDEQ violated the purpose of RCRA interim status by providing continuing operational status for a nuclear waste incinerator which could not comply with hazardous waste laws from the day the Calciner began operations in 1982. EPA, IDEQ and DOE chose wrongful means to allow continued operation of the Calciner and other hazardous waste facilities at INEEL.

The Workshop Meeting Minutes on Evaluation of VOCs and SVOCs Sampling Methods for Corrosive Offgas Streams of INTEC, held May 15, 1998 between EPA, IDEQ, and DOE representatives, is indicative of how little was known about the types and amounts of toxic compounds to which the public has been exposed as a result of operation of the Calciner without prior characterization of Calciner emissions and in noncompliance with RCRA. The Minutes show how difficult it was to monitor or measure the offgas from the Calciner. There were concerns about products of incomplete combustion ("PICs") from the Calciner which include dioxin/furans, PCBs, aldehydes, ketones, formaldehyde and formic acid and what methods to use to detect them and which chemicals should be most studied and how many of them would be studied. The participants disagreed on the types of sampling procedures which could analyze Calciner offgas. There was uncertainty about the ability of various standard testing methods to detect certain chemicals and the detection limits for specific analytes. Dilution of the sample streams of contaminants from the Calciner was not well understood in relation to ability to take accurate samples. There was uncertainty about what method to use for taking samples. The location for where samples should be taken from the Calciner was an issue. Different sample locations provided different dilution factors.

There was uncertainty about the interaction of NO2 with samples and high concentrations of NOx. The extent of dilution of the offgas stream necessary presented problems. There were serious concerns about the highly corrosive effects of the gases to be monitored upon the monitoring equipment and the destruction or ignition of the materials used to capture samples. There were concerns about how to remotely monitor the highly radioactive gasses. There were major concerns regarding how to capture the samples. Extraction of the sampled compounds from the materials used to capture them was a problem along with uncertainty about how to use scrub solutions to extract the compounds. There was a concern that phosgene gas could form in the scrub. The concern existed that all the cases that were discussed for sampling would require modified lab procedures differing from the EPA methods. Canisters that might be used to collect samples would cost $600 apiece and could present a disposal problem. The canister internals could be destroyed by the moist acidic vapors.

When deadlines for compliance were set, the IDEQ and EPA allowed the DOE to by pass those deadlines. The Second Modification to Consent Order of 7/31/98 stated that "This Second Modification is also necessary because DOE has not submitted a technically adequate permit application for the Calciner that meets the requirements of IDAPA 16.01.05.008 [40 CFR 264]." Again, waste feed characteristics and emissions still had not been characterized after 16 years of operations. The Second Modification called for the Calciner to be in "standby mode" after April 30 1999. DOE was to decide no later than June 1, 2000 whether to operate or close the Calciner. The IDEQ and the EPA in a Third Modification to Consent Order allowed Calciner operations past the 4/30/99 deadline for supposed "air testing." The testing was a thinly disguised go ahead to DOE to process large amounts of sodium bearing high-level wastes containing transuranics at higher operating temperatures (600 deg. C.) than those temperatures for which the Calciner historically was operated (500 deg. C.).

In an 8/4/98 answer to the concerns of Idaho Senator Golden C. Linford about Calciner operations at the INEEL, the State of Idaho Oversight Program made the ridiculous reply that "To date, DOE has been operating the Calciner under hazardous waste 'grandfather' provisions that allow older treatment facilities to continue to operate for a limited time, allowing for some environmental risks while they are being permitted." (Exhibit 10). Senator Linford was not informed that on the prior day, 8/3/98, a IDEQ letter to EPA's Charles C. Clarke had referred to "...DOE's inability to submit a technically complete permit application for the New Waste Calcining Facility." (Exhibit 11). Senator Linford was not informed RCRA requires hazardous waste facilities to obtain RCRA permits.

On March 23, 2000, more than eight years after the 1991 submission of the Part B application for the Calciner, the EPA sent a letter to the IDEQ indicating that the NWCF was subject to the Clean Air Act NESHAP standards for Hazardous Waste Combustors, contrary to DOE's belief. The EPA stated that the NWCF met the definition of an incinerator in 40 CFR § 260.10. (Exhibit 12). IDEQ had allowed the NWCF to operate under the wrong standards and it took EPA over eight years to inform the IDEQ of this. During this period the Calciner emitted tons of hazardous and toxic wastes including radionuclides to the atmosphere in violation of the Clean Air Act.

The fact that DOE, IDEQ and EPA have knowingly allowed the Calciner to operate illegally without the requisite RCRA, and TSCA permits and compliance with NESHAP emission standards under the Clean Air Act rises to the level of a civil and/or criminal conspiracy by persons within these agencies to allow hazardous waste disposal to the soil, water and air of Idaho and surrounding states thus putting the lives and health of persons in several states at risk. 42 USC § 6928 (d) and (g).

During EPA's oversight for IDEQ's status as the RCRA authority for Idaho, IDEQ has shown: failure to analyze applicable standards for permitting; failure to exercise control in requiring permits; repeated issuance of permits that do not conform to RCRA; failure to comply with public participation requirements; failure to act on violations of permits and other program requirements; failure to seek adequate enforcement penalties to prevent the operation of unpermitted facilities; failure to inspect and monitor activities subject to regulation; and, failure to comply with the terms of the Memorandum of Agreement under 40 CFR § 271.8. (See also, 42 USC 6926 (e); 40 CFR §§ 271.22 and 271.23).

The EPA, IDEQ and DOE failed to prepare detailed statements for operation of the Calciner to burn sodium bearing high-level waste containing transuranics such as plutonium as "major federal actions significantly affecting the quality of the human environment" as required by the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4332.

On March 31, 2000, the DOE wrote to Brian Monson of the Idaho IDEQ requesting an extension for additional time to comply with the NEPA, regarding a compliance deadline established in the Second Modification to the 1992 Consent Order resolving a notice of noncompliance.

The current statements in the INEEL High Level Waste Environmental Impact Statement ("HLW/EIS") fall far short of what would be required for a NEPA analysis for the Calciner. The Calciner facility, which the HLW/EIS NEPA analysis would purport to analyze, is not described in any but a vague, cursory and conclusory manner so that the public has no idea what modifications are proposed to achieve compliance with RCRA let alone comparison with alternatives as mandated by the NEPA. The HLW/EIS even fails to acknowledge that the Calciner is non-compliant with RCRA and could never meet EPA standards of treatment for high-level waste.

On May 3, 2000 a letter from Brian Monson to Don Rasch, DOE-ID denied the request for an extension of time. On May 16, 2000 a meeting was held between IDEQ and DOE-ID.

Under the terms of the Second Modification to the Consent Order, DOE was ordered to decide by June 1, 2000 whether to close the Calciner or obtain a permit to operate the Calciner. RCRA mandates that an agency either issue a permit or deny a permit. The IDEQ has never issued a permit or denied a permit for the Calciner. The DOE stated that it would submit a closure plan on June 1, 2000. However, the DOE is simultaneously back pedaling on whether closure means closing. The DOE is now publicly stating to the Idaho press that it is submitting a closure plan to IDEQ, while still reserving the final decision on the Calciner's future until next year. The Second Modification mandated otherwise.

The IDEQ has remained silent regarding DOE's statements of a difference between "closure" and "closing" and IDEQ is again playing both sides of the fence and demonstrating its lack of administrative will to take steps to enforce the mandate of the Second Modification to Consent Order which was for DOE to either make a decision to close the NWCF or get a permit by June 1, 2000. The language of the Second Modification is not that a closure plan can be submitted so that the NWCF can be placed in mothballs and then reopened at some future time when DOE decides to apply for a permit. RCRA does not provide for "stand by" mode for unpermitted plants. IDEQ has no legal authority to allow the Calciner to remain in a stand by mode for 10 years and then arise like Lazarus from the grave.

The IDEQ, EPA and DOE knew that the day for closure was coming from 1992 forward and have had ample time to propose their modifications and allow the proposals to go before the public as they must. By EPA, IDEQ, and DOE perpetuating the fraud of "interim status," the public has been and systematically denied public legal rights of due process under RCRA to participate in the decisions related to the Calciner and other long standing interim status operations at INEEL. RCRA mandates public notice and opportunity to comment on proposed permits. The indefinite charade of interim status as a permanent substitute for a valid permit process fundamentally denies the public due process. The request for an extension of time is nothing more than a deliberately calculated attempt to avoid the requirements of RCRA by supposedly applying a NEPA analysis to the Calciner.

The EPA and IDEQ allowed calcination to go on for many years knowing that it did not represent the Best Available Technology. The fact of the matter is that, under existing law, the DOE cannot operate the Calciner because it does not represent the Best Available Technology for treating high-level radioactive waste mixed with metal-bearing waste. 63 Federal Register 28575 defines the Best Available Technology for these wastes to be vitrification and that rule was in place in 1990. [40 CFR 268.48 mandates vitrification as the only approved treatment]

DOE's illegal attempt outlined in the INEEL High-Level Waste EIS to change the classification of the high-level sodium bearing waste in the INEEL Tank Farm to "mixed transuranic" is a clear attempt to keep the Calciner operating indefinitely by changing the classification of the waste processed by the Calciner. This "slight of hand" by DOE must be seen as a deliberate and illegal action to avoid legal requirements.

Interim status for the Calciner expired many years ago from a RCRA perspective. The IDEQ, EPA and DOE have known since at least 1992 that a closure process needed to be undertaken for the Calciner. The DOE and IDEQ are now talking about a "cease use" status for the Calciner to reserve the right to restart the Calciner if it is chosen as a treatment alternative in the INEEL High-Level Waste Environmental Impact Statement due for release in January 2001. No such category of use is provided for by RCRA. RCRA mandates that hazardous waste facilities are to obtain a permit and provide for a closure process. There is no provision for "mothballing" a facility which is what is proposed here to avoid the closure rules which RCRA mandates. The Calciner has never had a closure procedure established and put forth for public notice, public hearing and comment. In fact, documents under IDEQ control indicate that the Calciner is so complex and large that the DOE does not know how it will proceed with respect to closure.

DOE admitted, that decontamination efforts of the scale and complexity needed to close the NWCF have not been attempted at the INEEL and that "procedures are conceptual and unproven for large operating units like the NWCF." (Book 1 of the RCRA 1991 Part B application). 40 CFR § 270.14 (b) (13) requires the information regarding closure and postclosure be submitted. No alternatives have been set out in any other enforceable document and the Calciner has been allowed to operate without closure plans as required. (40CFR Subpart G).

Current plans for the NWCF are to use the facility for High-level Waste Evaporator, radioactive debris processing, and HEPA Filter Leachate processing. IDEQ admits that the effluent from these NWCF processes are going to unpermitted treatment plants. No NEPA statement has been prepared for the proposed action. The DOE failed to provide any pre-application meeting for the public as required by law prior to the submission of a draft permit proposal. (40 CFR 124.31). IDEQ believes that RCRA hearings for INEEL facilities are at IDEQ's discretion only whereas the language of 40 CFR 124.12 (a)(3) is that public hearings are mandatory within 45 days of public notice of the draft permit if requested by the public.

The Council on Environmental Quality ("CEQ") recommends early and meaningful public participation when decisions potentially impact vulnerable communities, such as those which exist in southeast Idaho-- low income, minority and tribal populations. (CEQ, Environmental Justice: Guidance under the NEPA Dec. 10, 1997, at 12-13 <http://ceq.eh.doe.govnepa/nepanet.htm>).

DOE has been allowed by EPA to ignore the requirements of NEPA for DOE's proposal for processing radioactive debris at the NWCF. Also, the EPA and IDEQ are ignoring the violation of RCRA law by allowing the processed debris to be sent from the NWCF to non RCRA permitted facilities such as the PEW, LET&D, and the HLLW Evaporator.

THE WASTE EXPERIMENTAL REDUCTION FACILITY ("WERF")

Another example of lax and illegal regulatory enforcement is the eighteen year operation from 1982 of the INEEL hazardous low-level Waste Experimental Reduction Facility (WERF) incinerator without required RCRA/TSCA permits. WERF has operated on "interim status" for over 11 years. In May 2000, DOE announced plans to shutdown the WERF by September 2001, or September 2002 if a one year extension is granted. The WERF cannot meet current RCRA standards for operation and EPA and IDEQ plan to keep the WERF running for another 25 months (assuming EPA grants a one year extension) violates RCRA and exposes the public to unnecessary health and safety risks. On July 31, 2000 DEQ announced its intent to deny DOE's WERF RCRA permit pending a lengthy public comment period and uncertain final determination.

The WERF handles, stores, treats, and/or disposes of hazardous wastes, including radioactive wastes which present an imminent and substantial endangerment to human health and the environment. WERF incinerated over 3.55 million cubic feet of radioactive waste since 1984. DOE admits that WERF does not meet Clean Air Act requirements, yet operations will continue (with an extension) through 2002. IDEQ and EPA, as with the Calciner, are taking a "hands-off" approach to permitting and enforcement to accommodate DOE operations. As is the case with the Calciner, the public has never had an opportunity for a RCRA hearing on the operation of the WERF, there has been no adequate NEPA analysis and the facility has operated without a TSCA permit.

The WERF illegally incinerated PCB waste of up to 680 parts per million in 1996 without any application to the EPA for a TSCA permit. EPA waited four years to file a complaint on 1/25/00 in the matter. (Docket No. TSCA-10-2000-0025).

No analysis under the National Environmental Policy Act ("NEPA") has ever been conducted for the WERF. The 1995 Programmatic Spent Nuclear Fuel and INEEL Environmental Restoration and Waste Management Environmental Impact Statement (EIS) contains one sentence which relates to WERF that states: "For the near term, stored and newly generated mixed low-level waste at the INEEL will be treated at the Waste Experimental Reduction Facility Incinerator."

The WERF incinerator is a dual-chamber controlled-air system, with capacity to burn approximately 700 tons of waste per year. The incinerator is typically scheduled to operate for 10 to 20 days per month in incinerate MLLW and LLW.

As of July 1999, WERF incinerated 3,545,885 cubic feet of radioactive and mixed hazardous radioactive waste, 5,300 cubic feet of which was shipped in from other sites. Unpermitted treatment of off-site waste generated under CERCLA is a violation of 40 CFR 300.400(b)(1)(ii) which EPA acknowledged in an internal letter to DOE stating "INEEL failed to perform the required waste analysis on a waste stream entering the WERF pursuant to 40 CFR 265.341(b), and so the emission standards for the halogens for that burning event were exceeded." [USEPA April 16, 1998 letter to INEEL Lockheed Martin] According to the Idaho Division of Environmental Quality, WERF (incinerator operation) has never received a full RCRA permit during its eighteen years of operation. A RCRA permit exists for handling and storing hazardous waste, but the incinerator part of the operation remains unpermitted. DEQ belatedly issued an Air Permit to Construct a Pollution Source in October 1987, five years after WERF started operations in 1982. Under law the construction of the WERF could not proceed without the Air Permit to Construct. During that five years, the WERF remained unpermitted in violation of Section 16.01.1012,02 of the State of Idaho Air Pollution regulations.

The WERF experienced between 1991 and 1999 six system failures, two filter failures, and four worker exposures. (See Exhibit 13 --Incident/Accident listing.)

A WERF trial burn conducted in July 1997 to determine if the WERF effluent met regulatory limits failed minimum destruction and removal efficiency tests. July 31, 2000 DEQ Notice states: "The basis for the proposed decision for permit denial is DOE's failure to develop a complete Part B Permit application in accordance with IDAPA 58.01.05.013 [40 CFR ss 124.3(d). The decision is based on the following:

1. The lack of a demonstration that the WERF incinerator meets the IDAPA 58.01.05.008 and .012 [ 40 CFR Part 264 Subpart O and Part 270 incinerator performance standards];

2. The lack of a DEQ approved risk assessment demonstrating the operation of the WERF incinerator is protective of human health and the environment; and

3 Failure to revise the application to reflect new high temperature operating conditions, new equipment, changes to training procedures, new waste analysis proposals, and established waste repackaging procedures."

DOE's Inspector General issued a finding that DOE incinerators, including the WERF, should be shut down by 2002 because of a poor cost-benefit analysis of DOE's own incinerators. The report notes that the high costs of emission control upgrades required to meet the new MACT Clean Air Act requirements that come into effect in 2002 tip the cost-benefit balance.

The WERF has to date processed over three and one half million cubic feet of high level waste, but the facility has yet to receive a permit under RCRA, has operated in violation of the interim status regulatory obligations, has violated air quality emissions requirements, has failed to comply with State of Idaho Air Pollution regulations, and has not met the environmental review requirements of the National Environmental Policy Act ("NEPA"). These violations represent not only default on their statutory obligations by DOE and its regulatory overseers, the EPA and IDEQ, but also presents a serious and immediate environmental risk that our environmental laws are intended to avoid. Since its operation, the WERF has experienced numerous accidents and safety failures and has posed serious threats to human health and safety. See Exhibit 13 for an outline these incidents.

In March 1998, DOE sought off-site acceptability for the WERF to process mixed waste from the Rocky Flats Site. The EPA denied the request because the "... INEEL failed to perform the required waste analysis on a waste stream entering the WERF pursuant to 40 CFR 265.341(b), and so the emission standards for halogens for that burning event were exceeded. IDEQ has also indicated that this has not been the only instance in which such a violation occurred involving this unit. This indicates that there is not sufficient controls over the waste that is fed to the unit in order to ensure protection of human health and the environment." (Exhibit 14). Despite these known deficiencies EPA and IDEQ continue to allow the WERF to operate.

The fact that DOE, IDEQ and EPA have knowingly allowed the Calciner and WERF to operate illegally without the requisite NEPA analysis, compliance with RCRA, and TSCA requirements and without compliance with NESHAP emission standards under the Clean Air Act rises to the level of a civil and/or criminal conspiracy by persons within these agencies to allow hazardous waste disposal to the soil, water and air of Idaho and surrounding states thus putting the lives of persons in several states at risk. 42 USC § 6928 (d) and (g).

CONCLUSION

The EPA should begin to conduct hearings regarding a withdrawal of authorization for IDEQ to administer RCRA because IDEQ is incapable of administering the program in accordance with the statute and has and is currently putting the lives of many people at risk. (42 U.S.C. 6926 (e); 40 CFR §§ 271.22 and 271.23). Under EPA failure of oversight, IDEQ has shown: failure to exercise control in requiring permits; repeated issuance of permits that do not conform to RCRA; failure to comply with public participation requirements; failure to act on violations of permits and other program requirements; failure to seek adequate enforcement penalties to prevent the operation of unpermitted facilities; failure to inspect and monitor activities subject to regulation; and, failure to comply with the terms of the Memorandum of Agreement under 40 CFR § 271.8.

EPA should be required to halt the illegal scheme of operation of interim status facilities which cannot comply with RCRA permitting requirements. EPA should require that DOE publically identify all facilities at the INEEL which are still being operated on interim status and the length of time such facilities have operated on interim status. EPA should require IDEQ to order all facilities at the INEEL operating under interim status to be brought into compliance with RCRA permit procedures and that such interim facilities either be granted or denied permits based upon qualifications in accord with RCRA. When permits are denied, closure plans must be immediately implemented as provided in RCRA.

Respectfully Submitted

Chuck Broscious

Executive Director EDI
P.O. Box 220
Troy, ID 83871-0220
208-835-6152 voice
208-835-5407 fax

on behalf of

Erik Ringelberg
Executive Director KYNF
PO Box 4838
Jackson, WY 83001
307-732-2040

and

David B. McCoy
Attorney at Law (California Bar #170737)
2940 Redbarn Lane
Idaho Falls, ID 83404
208-542-1449

CC:
Erik Ringleberg
David McCoy
US Senator Max Bacus
Gerry Spence
Laird Lucus, Land and Water Fund
Bert Lance, Idaho Attorney General
Charles Clark, EPA Region 10 Administrator
C. Steven Allred, Idaho Department of Environmental Quality Administrator

Enclosures:  Exhibits 1 through 14