September 21, 2004

<a-and-r-docket@epa.gov>

Docket ID No. OAR-2004-0025

Dear People,

The groups signing this letter are greatly concerned about public health
and safety of present and future generations. If filled to capacity, the
Waste Isolation Pilot Plant (WIPP) would have the largest quantity of
transuranic waste of any location in the world, posing a substantial
threat to present and thousands of future generations.

Consequently, we view the Department of Energy (DOE) Recertification
Application (RCA) and the Environmental Protection Agency (EPA) review
of the RCA as being a very important matter. We appreciate EPA and DOE
officials participating in the public meetings in New Mexico on July
27-29, 2004.

We believe that the RCA is substantially incomplete and flawed, so that
additional information and analysis is required before EPA can make a
completeness determination. Because of the substantial amount of
additional information that DOE must provide, we believe that the public
must have at least 60 days to provide additional comments after DOE
makes it final submittals. A lesser comment period will substantially
undermine public confidence in EPA's decision-making.

1\. [No high-level waste is permitted at WIPP. The RCA includes
high-level waste (HLW) and cannot be approved as submitted.]{.underline}

# The WIPP Land Withdrawal Act ((LWA) Public Law 102-579, as amended by Public Law 104-201)) expressly prohibits high-level waste or spent nuclear fuel at WIPP. Section 12 states:

BAN ON HIGH-LEVEL RADIOACTIVE WASTE AND SPENT NUCLEAR FUEL.

> The Secretary \[of Energy\] shall not transport high-level radioactive
> waste or spent nuclear fuel to WIPP or emplace or dispose of such
> waste or fuel at WIPP.

That prohibition directly affects EPA's authority and responsibility
under the LWA. EPA has the authority to preclude HLW in its
certification and recertification decisions.

Section 7(a) of the LWA establishes specific limits for the waste that
can come to WIPP, including for curie limits for remote-handled
transuranic (TRU) waste and limits by volume for the amount of TRU waste
that can be disposed of at WIPP. EPA's certification must clearly
enforce those limits. Thus, if DOE proposes to dispose of more than
5,100,000 curies of Remote-Handled (RH) TRU waste, or exceed the 6.2
million cubic feet capacity limit, or dispose of HLW, or dispose of
spent nuclear fuel, EPA must not allow it.

As EPA itself has recognized in issuing 40 CFR 194, the Compliance
Regulations for WIPP: "The Act \[LWA\] further stipulates that
radioactive waste shall not be transuranic waste if such waste also
meets the definition of high-level radioactive waste.... 61 [Federal
Register]{.underline} 5224, c.3.

The LWA also requires that DOE comply with "all other applicable Federal
laws pertaining to public health and safety or the environment." Section
9(a)(1)(G). The law further provides that if the EPA Administrator
determines that there is noncompliance with any requirement of that
Section 9(a), "the Administrator shall request a remedial plan from the
Secretary, describing actions the Secretary will take to comply with
such law, regulation, or permit requirement." Section 9(c).

Thus, if the DOE is not complying with the requirements of the LWA or
other federal laws, EPA should issue a determination of noncompliance.
Thus, noncompliance with the LWA prohibition on HLW must result in the
EPA Administrator issuing a determination of noncompliance. Rather than
waiting for HLW to actually be brought to WIPP, EPA should specifically
exclude HLW in its recertification decision.

Further, regarding recertification, the LWA specifically allows the
Administrator to determine to not concur and to not recertify. Section
8(f)(2). Thus, the EPA cannot recertify WIPP if the RCA includes
provisions that would violate the LWA.

The RCA does not specifically discuss the issue of DOE including HLW in
the WIPP Inventory, and certainly provides no explanation of why wastes
that have been managed as HLW at Hanford or other DOE sites meet the
requirements for TRU waste. No such wastes were included in the original
Compliance Certification Application. But buried in Appendix DATA,
Attachment F, Annex J are four high-level waste streams from the Hanford
HLW tanks. Those waste streams are RP-W013, RP-W016, RP-W754, and
RP-W755.

None of those four HLW streams should be allowed at WIPP. Thus, those
waste streams must be not allowed in the inventory or in the performance
assessment. Since those waste streams are included in the WIPP inventory
and are included in the performance assessment, the RCA is inadequate
and cannot be approved until those wastes are removed from the inventory
and the performance assessment and a revised performance assessment is
provided to EPA.

In addition to the four HLW streams, Annex J includes two other new
waste streams not included in the CCA that are HLW and cannot be
allowed. Those are K-Basin sludges, RL-W445 and RL-W446. Those wastes
are part of the Hanford spent fuel program, and spent fuel also is
prohibited at WIPP by Section 12 of the LWA. In addition, it appears
that at least some of the radionuclide values for the K-Basin sludges
are clearly wrong as the Cs-137 concentration levels are about half
those of its Ba-137m daughter, and the Sr-90 levels are less than has
half of its Y-90 daughter. Since such radionuclide problems occur with
other waste streams, DOE should be required to revalidate all
radionuclide information in the waste streams that have not been shipped
to WIPP.

Those waste streams from Hanford are part of DOE's program to
"reclassify," actually rename, HLW. One of DOE's tactics is to call such
wastes "incidential to reprocessing" so that, according to DOE, they are
not HLW. However, a federal district court judge has ruled that DOE
program to be invalid. [Natural Resources Defense Council v.
Abraham]{.underline}, 271 F.Supp.2d 1260 (D. Idaho 2003).

EPA must not allow high-level waste or "renamed" HLW at WIPP. EPA must
not ignore a federal court decision that bars wastes from Hanford and
other tanks to be classified as TRU (or low-level waste). Such wastes
cannot be included in the WIPP inventory or performance assessment, and
EPA cannot allow such wastes to come to WIPP.

EPA has the authority to exclude those HLW streams from the WIPP
inventory. EPA has the authority to require DOE to submit a performance
assessment that does not include those HLW streams. EPA must exercise
that authority in its recertification completeness determination and its
recertification decision.

2.  [The RCA Inventory is deficient and incomplete]{.underline}.

In addition to the HLW problems, the Inventory included in Appendix
DATA, Attachment F, Annexes I and J is deficient and incomplete in other
ways. Included in Annex I is waste stream IN-Z001, which were not
included in the CCA. Waste stream IN-Z001 is named "RFP Buried TRU Waste
at INEEL (Pre-1970)." The waste stream is estimated to contain 55,800
cubic meters of waste. Those wastes have previously been excluded
because DOE has long claimed that pre-1970 buried TRU waste would not
come to WIPP. But, as the waste stream description states: "All of this
TRU waste and soil will be retrieved and some of it will be treated, in
accordance with the Settlement Agreement of 1995, the Record of Decision
in 1998, and the U.S. District Court ruling of April 1, 2003." Since
there is a court decision requiring that this TRU waste be disposed
(presumably at WIPP, since there is no other TRU waste repository),
there is no basis for the waste stream to not be included in Annex J and
in the RCA performance assessment (PA). Since that amount of waste
constitutes about one-third of the total WIPP inventory, it is totally
inappropriate to exclude that waste from the RCA PA, and the RCA is
grossly incomplete with that waste stream.

Another result of including that INEEL buried waste stream (which
actually should be considered as multiple waste streams) is that the RCA
contains several substantial inaccuracies, including in Chapter 4. For
example, Section 4.1.3 of the RCA states that "the volume identified by
the TRU waste sites is less than the available volume of the repository,
175,564 m3 (6.2 million ft3)." On the contrary, including just the
IN-Z001 waste stream results in the CH-TRU inventory exceeding the
volume limits. Thus, both the CH and RH inventories exceed the volume
limits for WIPP.

The RCA PA is incomplete and must be redone to incorporate the actual
waste streams that DOE intends to dispose at WIPP in the inventory.
Since both the CH and RH inventories exceed the volume limits, the PA
must be redone to use the maximum volume that would have the greatest
impact on the PA. Taking the entire inventory, DOE must include in the
PA those waste streams that have the greatest effect on the PA to ensure
that PA shows that WIPP will not exceed the containment requirements,
not matter which specific waste streams are disposed at WIPP. Otherwise,
DOE must be required to include in Annex J only those waste streams that
meet the volume limits and additional waste streams that would result in
exceeding the volume limits must be placed in Annex I and EPA must not
allow those waste streams to be disposed at WIPP.

The inventory also is incomplete because it does not include a
discussion of the waste that is less than 100 nanocuries per gram
(nCi/g) that has been emplaced at WIPP and future waste streams that it
plans to dispose at WIPP that are \<100 nCi/g. It is known that DOE has
sent drums of waste that are less than 100 nCi/g and are thus not
actually TRU waste. The RCA includes no discussion of the amounts of
such waste nor the basis on which DOE determined that such wastes were
TRU. The RCA also does not identify the amounts of such wastes that it
intends to dispose at WIPP in the future. It appears that some waste
streams in Annex J are not TRU waste and also cannot be allowed at WIPP.
EPA should require DOE to provide a legal and technical basis of why
such wastes should be allowed at WIPP and the waste types and amounts
that it intends to ship to WIPP in the future.

In its RCA decision, EPA must describe its legal and technical basis for
allowing such waste at WIPP. Alternatively, we support an EPA RCA
determination that precludes such non-TRU waste.

The LWA clearly specifies that WIPP is solely for "the safe disposal of
radioactive materials generated by atomic energy defense activities."
Section 2(20). Chapter 4 of the RCA also includes various sites that do
not produce defense waste, so they cannot ship to WIPP. For example,
West Valley, ARCO Medical Products, and Lawrence Berkeley Lab are
clearly non-defense waste, and GE-Vallecitos and Babcock-Wilcox-NES are
also non-defense sites, so those sites and their wastes should be
excluded.

3\. [The RCA is deficient because it does not specify which waste
streams will be shipped to WIPP and the PA does not explicitly include
all such waste streams]{.underline}.

DOE has shipped waste to WIPP that were not included in the CCA.
Classified waste streams from Rocky Flats and waste containers with less
than 100 nanocuries per gram of transuranics from Savannah River and Los
Alamos are examples of such waste. However, the RCA is incomplete
because it does not specifically delineate those waste streams. The RCA
also does not provide a legal and technical basis for such waste streams
to be disposed at WIPP.

EPA must require that DOE provide that information before the RCA can be
deemed complete. In addition, EPA must require submission of a new PA
that includes such waste streams. Moreover, EPA must clarify in its RCA
decision the basis that it will allow such waste streams to be disposed
at WIPP. If waste streams not included in Annex J are to be allowed at
WIPP in the future, EPA must, at a minimum, require DOE to submit a new
PA that incorporates those additional waste stream(s) before allowing
such wastes to be shipped to WIPP. In addition, any such new PA must be
made available for public comment. We further believe that any such new
PAs should be considered a rulemaking.

4\. [The Performance Assessment is incomplete and
inadequate]{.underline}.

In addition to problems with the inventory and the PA already noted in
#2 and #3 above that make the PA inadequate and incomplete, there are
other serious deficiencies in the PA. Examples of deficiencies include
drilling rate, lack of modeling of air drilling, including stuck pipe
and gas erosion, and inadequate ground water modeling.

While the drilling rate used has increased by 1,335 boreholes or more
than 12 percent above the rate used in the CCA (Table DATA-A-1), the
rate is clearly inadequately low. There is no question that additional
oil and gas wells and other boreholes are being drilled throughout the
Delaware Basin, including boreholes that have been drilled during the
past two years since the September 2002 cutoff date for information.
Thus, the RCA is clearly incomplete and inadequate by using a drilling
rate this is demonstrably inadequate. DOE should be required to either
update the drilling rate or to use a drilling rate double that currently
used to demonstrate that such a drilling rate would not lead to a
compliance problem.

While the RCA does include some information on air drilling in Appendix
DATA, Attachment A, it does not include adequate modeling of the effects
of air drilling. The PA should be revised to include effects of air
drilling and stuck pipe and gas erosion scenarios.

While the RCA mentions the continuing changes in Culebra water levels
(p. 2-102 and Appendix DATA, Attachment B), DOE has not still not
explained the complex ground water levels and movements, so that the
modeling of ground water flow times, transmissivities, porosities and
related parameters cannot be relied upon. We suggest that DOE be
required to develop alternative ground water models that better account
for actual data. In addition, additional investigations of possible
karst conditions should be required.

5\. [Additional examples of incomplete or inaccurate
information]{.underline}.

From the beginning of the RCA, there are clear errors and misleading
information. For example, on page 1-3, DOE states that WIPP is subject
to "ongoing technical oversight" by the National Academy of Sciences
(NAS), Environmental Evaluation Group (EEG), and the New Mexico
Governor's Radioactive Waste Task Force. That statement is demonstrably
false and misleading. The EEG was defunded by DOE as of April 30, 2004
and no longer exists. The lack of EEG's participation in the RCA review
creates a serious problem that should not have occurred. As a result, we
believe that a longer public comment time is needed and that EPA should
devote additional contractor resources to providing more independent
review of the RCA. Further, there is no ongoing NAS WIPP Panel, and the
recommendations of the most recent NAS Panel -- *Improving the
Characterization Program for Contact-Handled Transuranic Waste Bound for
the Waste Isolation Pilot Plant*, January 2004, have generally been
rejected and not implemented by DOE. The Governor's Task Force rarely
meets. DOE should be required to correct the statement.

The same page of Chapter 1 also states that "DOE has involved the public
in the decision-making process throughout the compliance demonstration
process." Since none of our groups has been included by DOE in the RCA
development, we do not believe that statement is correct. EPA should
require DOE to document its public involvement process.

Virtually all of the scheduled activities regarding passive
institutional controls (PIC) has been delayed (pages 7-70 to 7-76). We
do not agree that DOE has provided adequate information or basis for the
delays. In addition, it is a substantial concern that some of the
elements of the PIC markers are now deemed to be "impractical" by DOE,
though it has provided no adequate basis for the conclusion. We believe
that EPA should require that additional work be done on the PIC system
rather than allowing on-going delays.

Given that DOE's policy is to "accelerate cleanup" including at WIPP, if
DOE is able to implement that program, WIPP would be filled to capacity
up to 20 years earlier than currently scheduled. The RCA is incomplete
because it includes no discussion of the "accelerated cleanup" program
and it's possible impacts on WIPP and closure activities, including the
PIC system.

Thank you for your careful consideration of these comments.

Don Hancock

Southwest Research and Information Center

PO Box 4524

Albuquerque, NM 87196

sricdon@earthlink.net

Jay Coghlan and Geoff Petrie

Nuclear Watch of New Mexico

551 W. Cordova Rd., #808

Santa Fe, NM 87505

petrie@nukewatch.org

Coila Ash

Creative Commotion: Voices for Social Change

325 E. Coronado Road #2

Santa Fe, NM 87505

coilaash@mindspring.com