April 2, 2002
John Iani
Regional Administrator, Region 10
1200 Sixth Avenue
Seattle, WA 98101
Sent via Certified U.S. Mail
Charles McCollum, Administrator
EPA Office of Inspector General
Sacramento Audit Office
801 "I" St #264
Sacramento, CA 95814
Sent via E-mail to: mccollum.charles@epa.gov
Sylvia Lawrance
Acting Assistant Administrator
EPA Office of Enforcement and Compliance Assurance
1200 Pennsylvania Ave. #2201A
Washington, DC 20460
Sent via Email to: lawrance.sylvia@epa.gov
Dear Sirs/Madam:
RE: Rebuttal to EPA Region 10 March 7, 2002 Response to the Petition to EPA to Commence Proceedings for Withdrawal of the Idaho Department of Environmental Quality as the RCRA Authority for the State of Idaho (40 CFR §§ 271.22 and 271.23), originally submitted September 13, 2001, and Petition Supplement Submitted November 16, 2001, by Keep Yellowstone Nuclear Free, David B. McCoy, and Environmental Defense Institute.
Numerous legal and technical arguments in the EPA Response ("Response") are defective or incorrect. Petitioners' Rebuttal does not attempt to address all EPA responses, but this is not to imply that Petitioners' are in agreement with EPA response items which we do not address herein. It is amazing to Petitioners the extent to which Region 10 EPA is willing to distort the facts, mischaracterize documents, ignore the evidence, and misrepresent the permitting statutes to rationalize over a decade of failed oversight duties. The EPA Response is an arbitrary and capricious denial for an evidentiary hearing for Petitioners' Petition to Withdraw IDEQ as the RCRA Authority for the State of Idaho and review of EPA Region 10's own enforcement deficiencies. Additionally, Petitioners find EPA Region 10 equally culpable with IDEQ in all alleged enforcement violations. Petitioners presented adequate facts coupled with statutory violations to achieve the opportunity for an evidentiary hearing before the Region 10 EPA on Petitioners' Petition and supplemental submissions.
1. The EPA response generally begs the question: How long is a reasonable time to wait for a mixed high-level radioactive and hazardous waste processing facilities at the Idaho National Engineering and Environmental Laboratory (INEEL) to obtain a RCRA hazardous waste permit?
None of the facilities which Petitioners addressed in the documents submitted have obtained a RCRA permit. According to the EPA's position set forth in its various responses to Petitioners and on the public record, it would seem that EPA believes there is no time period within which a facility needs to obtain a RCRA permit. A decade, according to Region 10 EPA, is not too long. Fifty years of operation of the Process Waste Equipment Evaporator (PEWE) is not too long.
EPA apparently is striving to create the impression that a giant loophole exists in RCRA so that interim status is just as good as a permit and can last forever. EPA defines "interim" to mean "permanent." By EPA's position, no possible period of time can exist as a yardstick to measure timeliness for IDEQ issuance of permits or closure orders and Department of Environmental Quality (IDEQ) could thus never be viewed as untimely in failure to issue or deny permits. If any standard for timeliness exists, EPA sure does not inform the public what it would be. By this questionable EPA logic, the Department of Energy (DOE) could ultimately process all hazardous wastes in Idaho without obtaining any RCRA permit whatsoever, so long as the Idaho IDEQ does not issue a final permit determination and allows interim status operation to continue. In fact, that is what is happening at INEEL.
EPA's illogical interpretation of RCRA interim status defeats the statutory purpose of RCRA that hazardous waste facilities must be permitted. 40 CFR 270.1 (c ) states in pertinent part "Owners and operators of hazardous waste management units must have permits during the active life (including closure period) of the unit." EPA's interpretations of the permit requirements of RCRA turn the law and congressional policy upside down on its head. Interim status does not constitute a permit.
Hazardous waste treatment, storage or disposal facilities ("TSD") are REQUIRED under 42 U.S.C. § 6925 (a) to obtain a permit, not just operate interminably under interim status. The governing regulations explicitly state that interim status is not itself a "permit." 40 CFR §§ 124.2, 270.2 (definition of permit which in pertinent part states: "Permit does not include RCRA interim status (Subpart G of this Part), or any permit which has yet been the subject of final agency action, such as a draft permit or proposed permit."
Interim status terminates when the TSD fails to comply with the rules governing operation on interim status. 40 CFR § 270.72. One of the rules governing interim status was a time schedule for submission of Part B of the permit application for approval or denial. 42 U.S.C. § 6925; see also 40 CFR § 270.73. Congress realized the potential for abuse of the interim status provision. Congress made provision for termination of interim status for November 8, 1992. 42 U.S.C. § 6925 (c).
The statutory language of 42 U.S.C. § 6925 (c )(2)(C) providing for a termination period for interim status facilities applies regardless of whether statutory or regulatory changes took place. EPA's 1988 Clarification Notice to include mixed hazardous/radioactive waste under RCRA did not provide the authority to overturn the statutory date for termination of interim status for November 8, 1992 set by the U. S. Congress. (1) EPA argues that interim status is retained for INEEL facilities until "the Agency or state makes a formal decision to issue or deny the permit."
The EPA position ignores the fact that the statutory language of 42 U.S.C. § 6925 (c)(2)(C) provides for the termination of interim status [§6925 (e)] within the time periods of §6925 (c )(2)(A) or (B). Final permits were to be issued or denied by November 8, 1992. There is no language in § 6925 which carves out an exemption or grants an additional time period for facilities which came into existence by means of statutory or regulatory changes and have interim status. EPA's position for continued interim operations is attempting to nullify the congressional requirements setting a period of limitation on interim status and the requirement to obtain a permit for a facility. Interim status was not intended to be a permit but only allowed operations for timely application submittal and review. In fact, Congress anticipated the potential for abuse of the interim status provision for existing plants, and thus stipulated time certain limitations on its use.
Contrary to EPA assertions, the statutory language of § 6925 does not provide for permanent operations of interim facilities. INEEL is subject to the §6925 (c ) provisions for loss of interim status where there has been no approval or denial of the RCRA Part B application. That EPA and the State of Idaho have allowed the use of interim status for hazardous waste facility operations at INEEL to exceed the statutory fixed term of 10 years for which facilities with permitted operations could operate without permit renewal review is a clear indication that EPA and Idaho have abused any reasonable interpretation of "interim status."
EPA's wrongheaded legal position flies in the face of congressional requirement for hazardous waste facilities to have full RCRA permits. Because EPA and IDEQ allow the use interminable interim status for operations instead of permits, the public cannot become involved in the permit process as required by the RCRA Expanded Public Participation Rule. During extended interim status, facilities such as nuclear high-level waste incinerators and evaporators are being operated at will for decades by DOE with the consent of EPA, and IDEQ with no public input and with no proper analyses for public health and safety. This presents an imminent health hazard to the human environment.
The bottom line is that the Process Equipment Waste Evaporator (PEWE), Liquid Effluent Treatment and Disposal (LET&D), High-Level Liquid Waste Evaporator (HLLWE), New Waste Calcine Facility (NWCF), Waste Experimental Reduction Facility (WERF), Tank Farm Facility (TFF) and other operations, [see EPA Response Attachment G citing 16 operations in WINCO-1132 page C1-2] are high-level radioactive/hazardous waste facilities which have operated without RCRA permits for periods over a decade past the cutoff date for RCRA interim status, November 8, 1992. These facilities have had no permit during the active life of the units as required by 40 CFR 270.1 (c ). Petitioners have filed a Notice of Intent to Sue (NOI) against DOE, EPA, and Idaho for these unpermitted facilities under the citizen suit provision of RCRA. These NOIs were attached to the original Petition.
2. EPA further mistakenly assumes, that interim status can be achieved by a consent order between EPA, IDEQ and DOE. EPA has failed to reference any section in RCRA or elsewhere that states that a hazardous waste facility can achieve interim status by the declaration of interim status in a consent order between EPA, IDEQ or DOE. There is no legal basis for this EPA assumption. Such a consent order certainly will not be valid as compared with the public interest in seeing a RCRA permitted facility.
Interim status is only conferred by meeting statutory provisions contained within RCRA. 42 U.S.C. § 6925 (e). There is no provision in RCRA for interim status to be granted by a consent order by EPA or IDEQ. Nevertheless, in violation of RCRA, IDEQ and EPA both use consent orders to confer interim status to facilities which do not comply with RCRA statutory requirements for achieving interim status, such as the Calciner, High-level Waste Tanks, LET&D and the High Level Liquid Waste Evaporator (HLLWE).
EPA's Response takes an inconsistent position with respect to consent orders. On the one hand, EPA states "Idaho's hazardous waste program has not been authorized for the use of orders as a substitute for permits." On the other hand, EPA states that "Idaho has exercised its enforcement authorities at interim status facilities and has resolved compliance concerns with consent orders and compliance orders. Consent orders were issued to the INEEL Facility to resolve violations." Petitioners have demonstrated with numerous documents that in practice IDEQ has used "continued operation under a Consent Order in lieu of permitting..." (See e.g., 2/9/96 RCRA Quarterly Meeting Minutes, P. 4). Despite EPA reasoning in its Response, interim status cannot be created by consent orders and neither interim status nor consent orders are viable substitutes for a RCRA permit.
The HLLWE is an illegally operating facility with no RCRA permit. EPA makes the ridiculous and false assertion that the High Level Liquid Waste Evaporator (HLLWE) obtained interim status based on Attachment H, a Memorandum by Walker Howell, IDEQ, January 10, 1990. In fact, the Howell Memorandum has nothing to do with the HLLWE and does not reference the HLLWE in any manner. The EPA has confused the HLLWE Evaporator with the Tank Farm Facility (TFF). The Memorandum refers strictly to high-level waste tanks. EPA's statement on this point is an indicator of its ignorance regarding the INEEL HLLWE facility and RCRA interim status requirements.
The HLLWE Evaporator was categorically not part of the Part B Application submitted to IDEQ in June 2001. Neither are the tanks referred to in the Memorandum part of the application which was submitted to IDEQ in June 2001. EPA has presented no information to show that the HLLWE Evaporator had interim status based on meeting the RCRA statutory requirements for achieving interim status. The November 1988 DOE Workplan to Revise the RCRA Part B Permit Application for the INEEL, p. 5, Table 1, lists the NWCF evaporator "to be added" as a "new unit." The submittal schedule was to be for January 1993. (Table 5, 17). EPA apparently believes that it can wave the magic wand of a consent order to create interim status for a facility and then allow operations to continue indefinitely without any permit. No consent order or subsequent modification included the HLLWE, however.
The 1992 Consent Order does not reference the HLLWE. No consent order, no interim status and no permit exist for the HLLWE. Operation of the Idaho Chemical Processing Plant, where the HLLWE is located, is defined in the 1992 Consent Order as "calcination" thus precluding the HLLWE by definition. (1992 Consent Order, pg. 17, E.). It was not until 9/3/97 that the HLLWE facility was addressed by DOE as not being contained in the 1992 Consent Order. At that time, it was realized that a modification to the Consent Order would be needed in order to include the HLLWE. An additional problem delaying addition of the HLLWE in 1997 to the Consent Order was that of the proposed Maximum Achievable Control Technology (MACT) rule on permitting and IDEQ's statement that a delay in the modification of the 1992 Consent Order until January 31, 1999 "appears to be warranted." The HLLWE was a new facility and required a RCRA permit as well as State/local permits before operations proceeded. The HLLWE facility did not even come on line until well after the 1992 Consent Order, (i.e., 6/1/1996). Again, a permit was not under consideration for the HLLWE and no application had been filed for a permit as a new facility although high-level waste operations were/are proceeding.
The HLLWE still is not a RCRA permitted facility and is currently being illegally used to process RCRA and high-level radioactive waste prior to waste characterization. According to the 5/15/01 Test Plan for the HLLWE Effluent Gas Emission Inventory, "Feed and effluent characterization data are needed to support permitting the unit under the Idaho Hazardous Waste Management Act." (Test Plan p. I). Obviously, the HLLWE facility waste characterization is planned, but not accomplished, although required by RCRA before operations commence.
While numerous plans indicate that sampling is necessary to characterize the waste, EPA persists in reliance on unsubstantiated process knowledge based on a lack of real time sampling data.
The HLLWE is the first stage of the Tank Farm liquid waste concentration. HLLWE condenses high-level tank waste and sends it via overhead vapor to the PEWE to be re-vaporized. "In essence the PEWE may be considered the second stage of the Tank Farm liquid waste concentration." (Test Plan, p. I). Petitioners have again and again demanded that IDEQ present the HLLWE, which is the first stage of treatment of Tank Farm waste, as part of the INEEL Liquid Waste Management System so that the public can view these high-level nuclear waste thermal facilities as the single operational entity which they in fact comprise.
The continued failure to present the HLLWE facility proposal is a continuing RCRA and National Environmental Policy Act ("NEPA") violation because the DOE, IDEQ and EPA all know that the proposal is in the wings, but the agencies are withholding presentation to keep the public in the dark which is not in accord with the RCRA Expanded Public Participation Rule. 40 CFR 124. Petitioners reject the EPA assertion that the facilities which are related to the INEEL Liquid Waste Management System can be partially permitted. This defeats a comprehensive analysis of the facility which is required by Council on Environmental Quality rules for NEPA purposes.
An unaccomplished, hypothetical, to-be-proposed Class 3 Modification claimed by EPA for the HLLWE does not remedy the fact that HLLWE has no RCRA permit. On page 26 of the EPA Response, EPA discusses the use of a Class 3 modification which will supposedly be used to add the HLLWE to Volume 14. The EPA claims that public participation will be fully incorporated. On the contrary, public participation would be fully incorporated if the DOE would give notice right now at an early stage as required by the RCRA Public Expanded Participation Rule of the intended action. Also, the Floodplain/Wetlands requirements of 10 CFR §1022 et seq. require such early notification. (See, Petitioners Appeal to IDEQ for review of INTEC Debris Processing Permit deficiencies related to floodplain/wetlands (McCoy Appellant Brief dated 1/11/2002). DOE has never given any notice for the HLLWE, the LET&D, or the PEWE under 10 CFR §1022 floodplain requirements.
EPA avoids the issue of the ongoing use of non RCRA facilities being used to process from or send wastes to other non RCRA facilities. Facilities that treat, store or dispose of hazardous waste must have a RCRA permit. 42 U.S.C. 6925 (a). RCRA requires the use of RCRA facilities to process RCRA waste. RCRA comprehensively regulates, from generation to disposal, "cradle to grave," waste designated as hazardous. See 42 U.S.C. § 6921(a), 40 CFR Part 261. A RCRA Permit does not include RCRA interim status, or any permit which has not yet been the subject of final agency action, such as a draft permit or proposed permit. See, 40 CFR 270.2 (definition of permit). Additionally, interim status had a cutoff date of November 8, 1992. 40 CFR § 6925 (c ).
EPA avoids the issue raised by Petitioners that RCRA waste is being processed by facilities at INEEL which do not have permits. EPA fails to properly exert oversight duties by allowing INEEL hazardous waste processing operations by facilities which do not have RCRA permits and allowing the interaction with other facilities that do not have RCRA permits. Petitioners have described many of those facilities and their operations in detail in their Petition and supplementary documents furnished to EPA.
By allowing segmented, partial permitting at INEEL, the EPA and IDEQ continue to avoid the interrelationship of these facilities with respect to functions and environmental impacts which Petitioners have demonstrated are not adequately provided for in the INEEL High Level Waste Environmental Impact Statement (HLW/EIS). EPA and IDEQ failed to bring the RCRA permitting process up to date or insist that DOE accurately characterize the noncompliant status of INEEL operations, such as the HLLWE, in the HLW/EIS as required in 40 CFR 52.21(s). (2)
EPA cannot show that LET&D met the requirements to qualify for interim status as a facility that was existing. Interim status is only statutorily conferred and cannot be granted by a consent order issued by EPA or IDEQ. EPA chose to override and violate the statutory requirements for interim status for the Liquid Effluent Treatment and Disposal (LET&D) by the EPA administrative fiat of the 1992 Consent Order. The EPA Response claims that it granted interim status with the 1992 Consent Order even though the "nitric acid" facility was not set forth in the consent order as the LET&D. There is no statutory provision under RCRA for the use of a Consent Order to grant interim status to the LET&D.
The EPA position in 1990 was that the nitric acid facility was not in existence and was ineligible for interim status. EPA Attachment E, Notice of Noncompliance, Docket No. 1090-1-24-6001, p. 13 states "the nitric acid facility was included on the Part A application, but was not in existence at the time of the Part A submittal, and therefore, is not eligible for Interim Status." Under the definitions set forth in 40 CFR 260.10 (see also, 40 CFR 270.2 definitions) for the meaning of what is an "existing" hazardous waste management, (3) it is clear that the LET&D did not have either the necessary permits, physical construction underway, and contractual obligations were not such that the DOE would suffer substantial loss if the project was terminated. The November 1988 DOE Workplan to Revise the RCRA Part B Permit Application for the INEEL, p. 5 Table 1, lists the LET&D Evaporators "to be added" as "new units."
EPA states (Response p. 14) that "In June of 1990, DOE was ordered to provide information to document that U.S. DOE's Congressional Budget Request of December 9, 1985, was approved and that funding was received by July 3, 1986 for the construction of the LET&D." DOE provided EPA Enclosure 16 to the EPA for its evidence. However, contrary to EPA's assertion of a December 9, 1985 budget request, Enclosure 16 is a FY1987 Final Budget Request and is only a cost estimate of $3900 for the LET&D. Thus, the documentation of Enclosure 16 provided to EPA by DOE is incompetent as evidence because it does not show Congressional approval of a budget request nor that the funding was received before the July 3, 1986 cutoff date for interim status for the LET&D facility.
Rather than demonstrating that the LET&D met the statutory requirements for achieving interim status, i.e., that all permitting, contractual commitments were in place, the 1992 Consent Order awarded interim status in the absence of any competent proof that contractual commitments were in fact met.
EPA glosses over the fact that the mere provision of some minuscule funding by Congress was not sufficient to make a showing that the LET&D was "in existence." The INEEL Notice of Noncompliance Settlement Conference Report held April 18-19, 1990 at EPA Region X headquarters in Seattle, Washington at page 6 Paragraph 23 addressed: "DOE's [Department of Energy] use of a budgetary commitment to establish a unit as being in existence was based on a letter from EPA to Hanford. The EPA responded that they were not prepared to agree or disagree at this time with the position that budgetary commitments are treated the same as contractual commitments for the purposes of determining 'in existence' under the rules or that this letter constituted current policy. EPA and the State will caucus to determine if LET&D meets the 'in existence' definition. DOE stated it would rely on the EPA correspondence which sets forth this position and that has implications for DOE-wide."
There is no evidence that DOE and EPA ever had a caucus on the issue or that EPA ever made a decision that a mere insubstantial sum of a budgetary commitment ($3900) was adequate to satisfy the "in existence" requirements necessary to achieve interim status. If that determination has been made by EPA, let the Petitioners see it! Petitioner McCoy has asked both the EPA and the DOE in Freedom of Information Requests for the information regarding the caucus and claims DOE made for interim status. No information has been received.
EPA claims resolution to the Notice of Violation (NOV) by the 1992 Consent Order, yet EPA later states "No permit decision has yet been made on this unit." (Response, pg. 14). Now, 10 years later, with still no RCRA permit for the LET&D, the EPA is still claiming by way of the 1992 Consent Order that the LET&D is eligible for operation under interim status.
EPA attempts to distort and blur the distinctions between facility characterizations of tank treatment versus thermal treatment for the LET&D and the PEWE facilities. Where a facility will not fly for a permit because it is a "goose," IDEQ or EPA recategorize the facility as a "duck." EPA's categorization of evaporators and distillation units as "tanks" rather than as "thermal treatment units" fails to pass either the smell test or accord with the numerous existing DOE facility descriptions or the definitions contained within 40 CFR 260.10 for thermal treatment. EPA claims that "the Subpart X standards as we pointed out are more restrictive because they include thermal treatment operations." (Response # 4 pg 12 para 2). IDEQ is incorrectly applying tank treatment with lesser restrictions to the thermal treatment evaporation operations of the LET&D, HLLWE, and PEWE.
By skirting the issue of proper facility categorization, including categorization during interminable interim status operations without permits, EPA and IDEQ allow facilities to run at a lesser standard of protection to the public by deliberate miscategorization of the facilities. The NWCF was run as a thermal treatment unit rather than as an incinerator. Additionally, as previously noted, EPA's response claims that "facility waste treatment categorization will wait until IDEQ issues its final draft permit for public comment," which effectively means that for the interim decade(s) even the interim status operating standards are not applied to the "real world" category of the actual operation.
EPA response # 4 offers Attachment D (RCRA Part B) for the INTEC Liquid Waste Management System (LWMS) yet there is no sampling data to verify the operations are within operating emission limits. All that is offered are "Sampling Methods and Rationales," which are nothing more than proposals for how sampling might be accomplished in the future. This does not meet RCRA requirements for full waste characterization. The history of difficulties and lack of characterization of offgas emissions for metals and hazardous organic compounds for the NWCF are documented in the 1/27/00 DOE Test Plan for the NWCF Offgas Emissions Inventory. In 1998, a Workshop held by the National Technical Workgroup to discuss the technical issues associated with sampling the Calciner offgas for semi-volatile and volatile organics, including SVOCs, dioxins and furans, polycyclic aromatic hydrocarbons, polychlorinated biphenyls (PCBs) and VOCs. Extreme difficulty has been experienced in collecting samples due to the high levels of nitric acid wastes. A 15-cm Pilot Plant Calciner was constructed and incompletely tested, but not disclosed to the public, except via Petitioners Freedom of Information Act (FOIA) requests. Meanwhile, the evaporators of the INTEC LWMS are spewing their toxins into the environment without a RCRA permit.
EPA response # 5 page 13 admits that only HEPA filters are used, which are only partly useful for particulates but not for volatilized contaminates. Given that the PEWE, LET&D, and HLLWE evaporators are processing waste constituents that are easily volatilized, this represents a major deficiency in the emission control system that is not addressed by the regulators.
Petitioner note with respect to EPA Attachment J (Screening Level Risk Assessment for Calciner, 1999) that the destruction rates in Table 9 may or may not be accurate for the Calciner operating at 500-600 degrees, but cannot be applied to the HLLWE, PEWE, and LET&D that operated at ~ 265 degrees F. Volatile contaminates will simply vaporize and go out the stack since only HEPA filters are employed for particulates.
EPA's response section B (# 6) claims Petitioners only advocated "combustion technology" as appropriate treatment. Not so. Petitioners asserted that the treatment standards in 40 CFR 268.40 for the INTEC LWMS hazardous air pollutants (HAP) contaminates (F-listed emissions) includes Carbon Absorption, Chemical Oxidation, Wet Air Oxidation, or Combustion Treatment. None of these treatment methods are used. Only HEPA filters are used for particulates. See previous note #5 on HEPA filter use. Additionally, EPA incorrectly claims "non-waste water" as the Land Disposal Restriction (LDR) 40 CFR 268.40 applicable standards. The only throughput to the INTEC LWMS is liquid waste water!
EPA's Response # 6, pg 15 uses Attachment G as documented justification for "delisting" dozens of hazardous wastes previously listed (totaling 105) in RCRA Part A Application, including four "F" listed wastes. (4) Even the most superficial review shows Attachment G does not support this EPA analysis. Appendix C-1 (pp. 5-6) states that "This report is not intended to be a full characterization document, but to provide a rational approach for initial assignment of listed hazardous waste numbers to waste generated from the PEWE liquid waste system."
The waste codes currently processed by the PEWE are those which are listed on the RCRA Part A application. The DOE has not filed a petition for delisting those codes. EPA is responding as if the waste codes had already been delisted! Those waste codes are based on the waste contained in the tank system at INEEL and the laboratory discharges and other waste streams which enter the waste stream to the PEWE. The real reason DOE is launching this flawed document is that DOE wants to avoid the regulatory requirements for treating all the wastes listed in the previous RCRA Part A application (documented as WINCO-1132) because "EPA hazardous waste numbers can (a) complicate treatment and disposal of the waste in the system (e.g., require specialized treatment technologies unless a determination of equivalent treatment per 40 CFR 268.42(b) is obtained), (b) complicate treatment and disposal of other (secondary) wastes generated in the management of this system, and "affect future closure of the system by increasing the cost of chemical analysis and complicate risk approach to closure." (P. C1-9).
Appendix C-1 (EPA Attachment G) admits that "Sampling and analysis should be used to determine if the waste is characteristic (40 CFR 261 Subpart C) or to provide information for a petition to amend Part 261 to exclude waste at a particular facility (40 CFR 260.22)." "Neither does this report address, nor is it intended to address, issues associated with the Idaho Nuclear Technology and Engineering Center (INTEC) liquid waste or secondary waste streams for 'delisting' purposes." [page C1-iv]. The most egregious use by EPA of this report lies in the fact that it is not based on actual sampling data, but rather "process knowledge." The report authors even note that: "It is suggested that sampling and analysis be used to identify listed constituents" but are not offered in this report.
This report only covers the PEWE, yet EPA is applying its recommendations to the whole INTEC Liquid Waste Management Systems in the absence of any delisting petition. The DOE failure to characterize wastes at INEEL has been documented extensively during the history of operations of the New Waste Calcining Facility, the LET&D, the PEWE, the HLLWE and the Tank Farm Facility. The Appendix C-1 is not based on hard scientific studies from sampling and analysis. Appendix C-1 is based primarily on anecdotal information from interviews.
A Report on results taken per the PLN-613, Balance of Plant Sampling and Analysis Plan (inputs to PEWE and LET&D), p. 4 states that "Permitting and listed waste management activities, currently in progress, require RCRA analysis of the waste characteristics associated with PEWE processing scenarios." (Emphasis supplied). The 2/24/00 Revision 1 of this document states in the Executive Summary "Although extensive process information is available regarding wastes processed in the PEWE, there is less information regarding hazardous organic constituents and heavy metals."
The Part A application lists 16 separate but interrelated INTEC waste operations that the waste codes covered. [C1-2] Even this list is deficient because it does not include the non-INTEC liquid waste shipped to INTEC for processing. Additionally, the report assumes operation of the Calciner [C1-9] which does not apply to present operations where the Calciner incinerator is shutdown, and previously combusted VOCs in the Calciner may not make it to the PEWE, or LET&D. [C1-5]
EPA attempts to use Attachment G to make a case for removing seven wastes previously listed in Part A because these RCRA wastes had "ignitability characteristic." DOE and EPA are using the flawed logic that since this waste was mixed with water it was no longer ignitable. No sampling data is offered to show that the ignitable waste is evenly diluted with water, that the specific wastes would even physically or chemically commingle with water (i.e., "oil and water don't mix"). Moreover, the ignitability hazard still exists even in the evaporators where different VOCs will vaporize at different (lower) temperatures than water, therefore explosive VOC concentrations can occur in the evaporator overheads. INTEC evaporator operations reports show that these plants can become "unstable" (read explosive) if operating temperatures are not tightly regulated.
Another bogus assumption in the Attachment G is that DOE tries to claim that its current hazardous waste management practices are not sending some RCRA hazardous waste to the INTEC processing plants but rather shipping it off-site for processing/disposal. That is all very interesting but irrelevant when treating waste accumulated over 50 years when dumping practices were different. Additionally, the Mock/Lebow False Claims suit against DOE contractors alleges that documents were falsified and waste illegally dumped.
EPA's response #7. Again EPA uses RCRA Part B Attachment D as quantifying emissions, however, as previously noted, Attachment D contains no data on actual emission contaminate levels to justify compliance on what they call BRC (Below Regulatory Concern). See # 10 below.
EPA's response #9 states "All hazardous waste determinations are to be completed by September 30, 2006." That puts some operations out there 14 years after starting operation and before final determination and with no RCRA permit in place. As previously noted, appropriate waste treatment categorization is not occurring, which literally means EPA/IDEQ policy plans to allow questionably appropriate standards to apply in the mean time to operations that legitimately and legally must be in a more restrictive regulatory category.
3. The EPA position regarding the New Waste Calcining Facility (NWCF) and the Waste Experimental Reduction Facility ("WERF") again attempts to substitute the 1992 Consent Order and its ensuing numerous modifications for a RCRA Permit. EPA claims that "Because the INEEL facility did not and was not required to submit a permit application as a mixed waste facility on or before November 8, 1984, it was not subject to the statutory deadline at 42 U.S.C. § 6925 (c ) (2)(B)." As discussed above, the language of 42 U.S.C. § 6925 (c ) does not carve out an exemption from meeting the November 8, 1992 deadline for termination of interim status. Although the Part B Application was submitted for the NWCF, the NWCF Calciner was allowed to operate until June 2000 without ever obtaining a permit. The NWCF could not characterize its waste or pass its trial burns. The WERF never passed either of two trial burns, but WERF operated continually from 1984 until September 30, 2001. (5) No statutory provision exists in RCRA that justifies more than 10 years of operation of mixed hazardous nuclear waste incinerators under a Consent Order without a permit.
Petitioners have provided a lengthy history of the fact that both DOE, EPA and IDEQ knew that the NWCF could not meet the requirements as an incinerator to obtain a RCRA Part B permit. The EPA and subsequently IDEQ allowed the Calciner to operate from 1982 to 2000 at standards less than those required for an incinerator and allowed the processing of heavy metals (inorganic wastes) which could volatilize in knowing violation of the standards of 40 CFR 268.3 Appendix XI. The waste characterization and trial burns that were legally required to be accomplished prior to commencement of operations was never done. However, the 1999 trial burns were unsuccessful. The 1999 Screening Level Risk Assessment for the NWCF came decades after operation of the NWCF without any RCRA permit.
EPA failed its regulatory mandate prior to 1992 when IDEQ was granted RCRA authority and currently fails its oversight duties by ignoring the complicity of IDEQ and DOE in operating the NWCF without satisfying the operational and analytical requirements which would be necessary under the appropriate regulations for an incinerator. IDEQ was informed by DOE that "It is not possible to comply with all of the analytical and operational requirements necessary to permit the NWCF Calciner, evaporator (HLLWE) and associated tanks and piping (IDAPA 16.01.05.014 [40 CFR 264 and 270]). Therefore, DOE requests Department [IDEQ] concurrence to operate the NWCF under the interim status regulations (IDAPA 16.01.05.009 (40 CFR 265) except as provided in this justification, under the terms of the consent order." (See jbb/2-4-97/NWCF-TFF/CO request, p.2).
While EPA makes the argument that the requirements applicable to an incinerator or a thermal treatment unit are essentially identical, EPA fails to address Petitioner's point laid out in extensive detail: the NWCF did not comply with either of the standards as an incinerator or a thermal treatment unit. Moreover, Petitioners have provided extensive documentation that EPA Federal Register notifications and letters from EPA were clear that the proper permitting standards to be applied to the Calciner were those of 40 CFR 264 Subpart O for an incinerator. EPA claims in its Response ( Pg. 19. 3rd Para. ) that Subpart O incinerator regulations and Subpart P thermal treatment are "essentially the same." If that were true in substantive part, the Subpart P regulations would simply refer to Subpart O, which of course they do not because Subpart P is not the same. The Subpart P thermal treatment regulations are less restrictive than the incinerator regulations. In 1990, EPA informed IDEQ that the Calciner was an incinerator. EPA has failed its oversight duty with respect to facility characterization and moved to complicity with the polluter in intentional obfuscation of the law. EPA statements now on this issue are wholly inconsistent with prior statements.
The Calciner is an incinerator and must be classified and regulated or shutdown as such. The TO4 "Other" classification just does not fit reality not to mention the fact that the operating standards are much lower than incinerators, which we set forth in detail in our petition. EPA Response states (pg 19): "In an October 15, 1997 IDEQ letter to DOE, IDEQ indicated, based on DOE's determination that NWCF was TO4, that the 40 CFR Section 268.3, dilution prohibition as a substitution for treatment, would not apply to the NWCF." No legal/regulatory rationale is offered for this arbitrary decision by IDEQ. "IDEQ also indicated in the letter that IDEQ would make a final determination as to the unit classification of the NWCF as part of its (IDEQ's) permit determination for the unit. Making a final determination on a unit's status as part of a regulatory agency's permit determination is consistent with the permit process as provided for in the regulations." EPA is attempting to cover up DOE's burning heavy metals in the NWCF in violation of 40 CFR 268.3 Appendix XI and IDEQ's failure to prevent that action. Again, this is 2002 and the previous finding was five years earlier. IDEQ simply is not ruling in a timely manner.
Petitioners have shown that the liquid effluent to the INTEC percolation ponds is illegally diluted in order to meet regulatory requirements for land disposal.
EPA's response # 10. IDEQ, under EPA oversight, deliberately failed to properly categorize the Calciner to avoid the fact that heavy metals that could volatilize were not supposed to be processed by an incinerator. EPA's response # 10 states: "The technical challenge posed in collecting emissions data from a hazardous waste source was increased here because the emissions from the Calciner were highly radioactive and contained high levels of nitrogen oxides which raised issues of data integrity that had to be addressed." EPA offers no resolution to this crucial sampling problem, despite the fact that the Calciner had been operating since the early 1980's! This flies in the face of previous EPA assertions in #7 that emissions are Below Regulatory Concern (BRC).
Before satisfactory characterization of the waste, the NWCF dumped everything from arsenic, beryllium, mercury and plutonium into Idaho's environment. Before exposing the public to the toxic waste contaminants, EPA and IDEQ are supposed to know what is being processed and what the end product will be. Given the absence of specific sampling data, EPA and IDEQ have failed miserably to protect the public from the NWCF and other identified INEEL operations emissions.
4. When IDEQ and DOE knew conditions for a RCRA permit could not be met for INEEL facilities, IDEQ and DOE agreed to run the facilities under a consent order. This is collusive conduct calculated to avoid the requirements for permitted facilities and is an abuse of statutory requirements for qualifying for interim status. See, for example, the 4/97 document Justification for the Continued Operation of the NWCF [New Waste Calcining Facility] and TFF [Tank Farm Facility] as HWMA Interim Status Units Through a Consent Order.
5. EPA fails to explain why the PEWE was not required to obtain a RCRA Permit by 1992. The PEWE has been operating for more than twenty years and certainly was subject to the 1992 cutoff date for interim status because PEWE was in existence before 1984 and was a hazardous waste processing plant with significant emissions subject to RCRA. EPA's response to Petitioner's conveniently ignores this issue.
6. EPA's response #12, related to the classified US Army Specific Manufacturing Capacity (SMC), notes a 3/2001 IDEQ inspection of the SMC facility to demonstrate RCRA compliance. The EPA supplied IDEQ's inspection report (Attachment L) that states the subject depleted uranium mill and related incinerators were shut down and "unlikely to be used in the future." EPA's response states: "[S]everal units in the SMC discussed by the Petitioners were closed pursuant to RCRA closure requirements prior to 1997." The fact that these operations were closed under RCRA is clear evidence that even DOE considered these operations subject to RCRA while they were operating.
EPA ignores the issue that the SMC incinerators did not have RCRA permits or the fact that IDEQ was not even aware of the SMC incinerator's existence until a DOE employee was injured and filed a lawsuit against DOE. IDEQ never bothered interviewing the employee, Clint Jensen, who was injured by the SMC incinerator to ask him if he knew what was being processed in the incinerator. The IDEQ inspection took no actual material samples of liquids or contents from containers for analysis. IDEQ really did not verify what was in the containers at the SMC.
IDEQ failed to conduct independent sampling or inspections to confirm the presence of RCRA listed hazardous waste throughput into the SMC incinerators prior to their shutdown.
It appears that this shutdown mode of the incinerator that injured Jensen factored heavily into IDEQ's determination of current RCRA compliance, however it did not address Petitioners' allegation of RCRA noncompliance prior to shutdown and Petitioners' specific allegation of incineration of RCRA listed waste such as machining oil, beryllium powders, volatile organic compounds, and benzene.
For EPA and IDEQ not to recognize that the SMC facilities needed RCRA permits requires blinders: Internal DOE reports related to SMC Chemical/Thermal Treatment state: "This treatment is the thermal/chemical oxidation of elemental, pyrophoric, reactive material. The material is reacted with water forming non-reactive salts. This exothermic process once started generates sufficient heat to sustain itself. The process is initiated by the addition of a small amount of sodium hydroxide to the slurry. This slurry contains varying quantities of radionuclides. The system is totally RCRA regulated. The permitted maximum operational capacity for the system for and an entire year is 304,000 pounds." [INEL Interim Status Analysis, Rockwell, 6/13/90, page 1]
Other SMC Evaporators that should be (but are not) actively RCRA regulated include liquid evaporation processes "This treatment is the thermal evaporation of liquids. The evaporation is accomplished using a drum evaporator. This device dries the liquid in the actual 55 gallon drum in which the material will be disposed. The evaporators are designed to operate in a range from well below the boiling point of water, to well above it (approximately 150 to 500 degrees F). The waste treated are liquids containing EP toxics and/or radionuclides, with the evaporated adapter released as vapor to the atmosphere. Capacity is 304,000 pounds per year." [INEL Interim Status Analysis, Rockwell, 6/13/90, page 2]
7. The EPA Response #13 (page 21-22) offers no explanation/finding on the disposition of the 27,000 gallons of chromate waste still in the TAN-726-A unit that the agency claims were "closed under an approved RCRA closure plan on or about 1995." Seven years later and this large quantity of hazardous waste remains in the original process plant. This raises the obvious question of the adequacy of IDEQ's willingness/ability to ensure that RCRA compliant closures occurs.
8. EPA fails to protect the public right to notification of INEEL proposed actions in the floodplain. EPA's response #18 has not considered the failure of the DOE to notify the public of a proposed action which was intended for the floodplain at INEEL. This issue was raised with EPA in the Debris Processing appeal which was submitted as part of the IDEQ Withdrawal Petition. The Debris Processing Appeal shows that even if DOE argues that it did not have any duty under RCRA Expanded Public Participation Rule to inform the public of the Volume 18 Part B Application, the duty to inform the public clearly existed under the notification requirements of 10 CFR 1022 for Floodplain/Wetlands activities. This is another example of how EPA does not exert oversight duties with respect to applicable federal laws at INEEL. The public has been denied reasonable timely opportunity for knowing what actions DOE proposed for the floodplain over the aquifer at INEEL.
9. EPA's responses #'s 22-24 are unacceptable. Given EPA Region 10's mandated regulatory oversight role of the Idaho program, and of all federal environmental laws, within its jurisdiction, and Petitioners allegations of violations to the Clean Air Act (CAA), National Environmental Policy Act (NEPA) and other federal statues, EPA Region 10 cannot legitimately ignore any allegations regardless of whether it was part of Idaho's program or Region 10's primary responsibility. Our Petition was clear about its multifaceted challenge given the intimate regulatory interrelationship of both EPA and IDEQ agencies with respect to enforcement. Additionally, Petitioner's three Notices of Intent to Sue included as plaintiffs not only DOE, but also the State of Idaho, and EPA as regulatory agencies for alleged non-enforcement of environmental laws.
Sincerely,
_______________________________
Erik Ringelberg
Executive Director
Keep Yellowstone Nuclear Free
P.O. Box 4838
Jackson, WY 83001
307-732-2040 V
307-732-0129 F
_________________________
Chuck Broscious
Executive Director
Environmental Defense Institute
P.O. Box 220
Troy, ID 83871
208-835-6152 V
208-835-5407 F
_________________________
David B. McCoy
Attorney at Law (California Bar #170737)
2940 Redbarn Lane
Idaho Falls, ID 83404
208-542-1449 V
208-522-0565 F
CC: via E-mail
Katherine Thompson, EPA Office of Inspector General
Gregory Fried, EPA Office of Enforcement and Compliance Assurance
Brian Monson, Idaho Department of Environmental Quality
Jeff Hunt, EPA Region 10
1. Idaho did not have a base program in 1988 when the Clarification notice was issued and thus no regulatory change would exist at the time when Idaho became authorized to manage the hazard waste program in Idaho in 1992.
2. 40 CFR 52.21(s) Environmental impact statements. Whenever any proposed source or modification is subject to action by a Federal Agency which might necessitate preparation of an environmental impact statement pursuant to the National Environmental Policy Act (42 U.S.C. 4321), review by the Administrator conducted pursuant to this section shall be coordinated with the broad environmental reviews under that Act and under section 309 of the Clean Air Act to the maximum extent feasible and reasonable
3. 40 CFR 270.2 definitions:
"Existing hazardous waste management (HWM) facility or existing facility means a facility which was in operation or for which construction commenced on or before November 19, 1980. A facility has commenced construction if:
(a) the owner or operator has obtained the Federal, State, and local approvals or permits necessary to begin physical construction: and either
(b)(1) A continuous on-site, physical construction program has begun: or
(2) the owner or operator has entered into contractual obligations which cannot be canceled or modified
without substantial loss - for physical construction of the facility to be completed within a reasonable time."
4. (Appendix C-1 A Regulatory Analysis and Reassessment of the EPA Listed Hazardous
Waste Numbers for Applicability to the INTEC Liquid Waste System, INEEL/EXT-98-012013,
Rev. 1, February 1999)
5. Both the WERF and the Calciner were closed immediately subsequent to Petitioners'
separate Notice Of Intent to Sue for each facility.