Don Hancock \<sricdon@earthlink.net\>

12/02/2005 07:45 PM To

Group A-AND-R-DOCKET@EPA

cc

Raymond Lee/DC/USEPA/US@EPA

bcc

Subject

Docket ID No. OAR-2004-0025

Please fully consider the attached comments regarding the WIPP
compliance

recertification application.

Thank you.

\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*

Don Hancock

Southwest Research and Information Center

PO Box 4524

Albuquerque, NM 87196-4524

\(505\) 262-1862

\(505\) 262-1864 (fax)

www.sric.org

December 2, 2005

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

Docket ID No. OAR-2004-0025

Dear People,

Southwest Research and Information Center (SRIC) has been very involved
with the Waste Isolation Pilot Plant (WIPP) for 30 years and with the
EPA certification and recertification processes. SRIC remains greatly
concerned about public health and safety of present and future
generations. If filled to capacity, 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. This comment is
in addition to the written comment of September 21, 2004 and to comments
SRIC has made at the public meetings in New Mexico in July 2004 and on
June 7, 2005. SRIC believes that EPA should fully consider all of the
written comments and comments at the public meetings as part of its
recertification decision.

1\. [The CRA was grossly flawed and incomplete]{.underline}.

The Department of Energy (DOE) Compliance Recertification Application
(CRA) was submitted on March 26, 2004. SRIC and others pointed out at
the public meetings in July 2004 and in written comments in September
2004 that the CRA was substantially incomplete and flawed. EPA agreed
and requested additional information on several occasions. DOE stated
that its final response was September 20, 2005, almost 18 months after
the supposedly complete and accurate CRA was submitted. It was even
after that last submission, in October, before the Performance
Assessment Baseline Calculation (PABC) was submitted. Such an inadequate
submission clearly does not meet the congressional intent in requiring
CRAs every five years. WIPP Land Withdrawal Act, Section 8(f)(1). By any
measure, an application that must be repeatedly revised and
substantially supplemented over an 18-month period is not an adequate
submission. EPA should so expressly state in its recertification
decision.

Moreover, SRIC believes that EPA should make changes prior to the next
CRA submission process to encourage DOE to submit a better CRA so that
both EPA and public resources are better used. Therefore, SRIC
encourages EPA to undertake a public process, probably in late 2006 or
early 2007, to discuss with DOE and stakeholders what measures will be
taken to ensure that the next CRA is a more complete and adequate CRA.

2\. [The public process was inadequate.]{.underline}

SRIC appreciates that EPA and DOE officials participated in the useful
public meetings in July 2004 and June 2005 and that the public had from
April 2004 to December 5, 2005 to submit comments. Nevertheless, SRIC
believes that the public participation process was inadequate, because
[meaningful]{.underline} public comment requires [both]{.underline}
adequate time and adequate information. Thus, for virtually all of the
public comment period, there was inadequate information upon which the
public could comment. That problem was not caused by EPA, but by the
inadequate CRA, as already discussed, which meant that the public
meetings were held with greatly inadequate information available to the
public. Consequently, much of the comments and discussion necessarily
focused on what was needed for a complete application rather than a
substantive technical discussion of the CRA. Very important information,
including DOE's "real" inventory, was not submitted until October 2005
in the PABC. Therefore, the public actually had much less than 60 days
to provide comments on the entire CRA and its supplementary materials.
Again, SRIC would request, as part of the revisions in the process for
the next CRA suggested in #1 above, that EPA involve stakeholders in
discussions of how to improve public participation.

3\. [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 and responsibility to ensure that
DOE understands that HLW is precluded from WIPP and that EPA cannot
approve HLW as being in the WIPP inventory in its recertification
decision.

In addition to the clearly stated ban, EPA should consider the
legislative history related to the high-level waste (HLW) ban and the
fact that Congress did not include such wastes, including tank wastes,
in the WIPP inventory.

Both House and Senate land withdrawal bills (HR. 2637 and S. 1671)
contained a provision banning high-level radioactive waste at WIPP. The
bans are discussed in the four committee reports issued regarding those
bills. There were three House committee reports (H. Rept. 102-241 Part 1
(Interior and Insular Affairs), Part 2 (Armed Services), and Part 3
(Energy and Commerce) and Sen. Rept. 102-196 (Energy and Natural
Resources).

The Senate Report provides the most detail about the HLW ban. It states:

\[subsection\] prohibits receipt of any high-level radioactive waste at
WIPP. This section would revoke the authority of the Secretary to
conduct experiments with high-level radioactive waste under Section 213
of Public Law 96-164. Section 213 of Public Law 96-164, and the
accompanying Conference Report (Report 96-702), set forth the mission of
WIPP to include temporary storage and experiments on defense high-level
radioactive waste. DOE's program plans for WIPP initially included
experiments on a limited quantity of defense high-level radioactive
waste. DOE has since determined, however, that it will not conduct
high-level radioactive waste experiments at WIPP. S. Rept. 102-196 at
28. See also *id.* At 47.

Further, the Senate Report background discussion of the legislation
provides some history and description of transuranic waste. The
discussion states: "Prior to 1970, transuranic waste was placed in
shallow land burial as low-level radioactive waste." at 16. Thus, since
the waste was placed in the tanks, not shallow land burial, and much of
the tank waste was created before 1970, the committee did not consider
those wastes to be transuranic waste. Indeed, since the passage of the
Nuclear Waste Policy Act (Public Law 97-425) in 1982, Congress and the
public understood that the HLW in the tanks would be disposed of in a
geologic repository or repositories.

The House Energy and Commerce Committee report states: "Prior to 1970,
transuranic waste was routinely buried in shallow trenches near defense
production facilities." H. Rept. 102-241, Part 3 at 13. Again, waste
that was placed in tanks was not considered to be transuranic. The House
Armed Services Committee used similar language to the Senate report: "In
the early years of the nuclear weapons program, transuranic wastes were
placed in shallow land burial as low-level waste, and approximately
192,000 cubic meters was disposed of in this fashion. H. Rept. 102-241,
Part 2, at 13-14. Once again, the committees understood that wastes in
tanks were not considered to be transuranic. None of the committees
understood that HLW tank wastes or spent fuel sludges could come to
WIPP, nor did DOE propose that such wastes would be disposed at WIPP
during the five years of debate on the LWA.

In debating the LWA, Congress was aware of DOE's own historic statements
about the WIPP inventory of what wastes could come to WIPP. The original
*Final Environmental Impact Statement (FEIS) Waste Isolation Pilot
Plant* DOE/EIS-0026, October 1980, did not include any of the Hanford,
SRS, or INEL tank waste or spent nuclear fuel sludges. The inventory was
"the readily retrievable waste expected to be stored in Idaho through
1990....In addition, the WIPP would be designed to accommodate all
defense TRU waste generated between 1990 and 2003." at 2-18.

The 1981 DOE Record of Decision on the FEIS stated:

The WIPP facility will dispose of defense transuranic (TRU) waste stored
retrievably at the Idaho National Engineering Laboratory (INEL). By
approximately 1990 all existing waste stored at INEL will have been
removed to WIPP, and the WIPP facility would be in a position to receive
and dispose of TRU waste from other defense waste generating facilities.
46 *Federal Register* 9162 (January 28, 1981).

That Record of Decision also called for:

Conducting experiments on defense wastes, including small volumes of
defense high-level waste. The high-level waste used for experiments will
be retrieved and removed from the site prior to decommissioning of the
WIPP facility. *Id.*

The FEIS analysis of HLW for experiments was based on "a reference
experimental waste" from SRS. at 5-8.

The 1990 *Final Supplement Environmental Impact Statement Waste
Isolation Pilot Plant*, DOE/EIS-0026-FS, January 1990 eliminated the
high-level waste experiments. at 3-4. The inventory includes no waste
from any HLW tanks or spent nuclear fuel sludges. at 3-2 to 3-6.

Thus, in the LWA, Congress clearly withdrew any authority for HLW
experiments at WIPP and prohibited HLW and spent nuclear fuel storage
and disposal.

Even in the third WIPP FEIS, issued after enactment of the LAW, which
includes "additional inventory" of some wastes that are explicitly not
approved for WIPP, no tank wastes (or spent fuel sludges) are included
in that additional inventory. *Waste Isolation Pilot Plant Disposal
Phase Final Supplemental Environmental Impact Statement*,
DOE/EIS-0026-S-2, September 1997, at 2-7, A-9.

Furthermore, as for whether those tank wastes are HLW or transuranic,
numerous DOE documents state they always have been managed as HLW. For
example, *Linking Legacies: Connecting the Cold War Nuclear Weapons
Production Processes To Their Environmental Consequences*, DOE/EM-0319,
January 1997, referring to Hanford HLW, states:

At Hanford, high-level waste alkaline liquid, salt cake, and sludge are
stored in 149 single-shell underground tanks and 28 double-shell
underground tanks. Some transuranic waste and low-level waste is also
stored in the tanks but [all tank waste is classified at Hanford and
managed as high-level waste]{.underline}. at 35, [emphasis
added]{.underline}, see also at 33*.*

DOE's Integrated Data Base Reports consistently state that the waste in
the Hanford tanks is managed as HLW. For example,

Hanford single-shell tank wastes (i.e., liquid, sludge, and salt cake)
and double-shell tank wastes (i.e., slurry) consist of HLW, TRU wastes,
and several LLWs. However, in storage practice, all tanks are managed as
if they contain HLW. Thus, their contents are included in the HLW
inventory. *Integrated Data Base Report -- 1992: U.S. Spent Nuclear Fuel
and Radioactive Waste Inventories, Projections, and Characteristics*,
DOE/RW-0006, Rev. 8, October 1992, at 55.

That same document includes two pages of diagrams showing how HLW at
Hanford, INEL, and SRS will be stored treated and disposed. Each of the
diagrams show the wastes being disposed "in HLW geologic repository." at
45-46. This document was issued about the same time that the LWA was
passed.

Four years later, the *Integrated Data Base* stated:

> At Hanford, waste in single- and double-shell tanks consist of HLW,
> TRUW, and several LLWs. However, in the interim storage mode, the
> tanks are managed as if they contain only HLW. Thus, their contents
> are included in the HLW inventory. *Integrated Data Base Report --
> 1995: U.S. Spent Nuclear Fuel and Radioactive Waste Inventories,
> Projections, and Characteristics*, DOE/RW-0006, Rev. 12, December
> 1996, at 33.

In A Report to Congress on Long-Term Stewardship, DOE/EM-0563, January
2001, DOE stated:

The chemical processing of irradiated fuels generated the largest volume
of Hanford's waste. The process wastewaters were divided into high-level
radioactive alkaline slurries containing heavy metals, organic and
inorganic salts; uranium, plutonium, and mixed fission products stored
in underground waste tanks; and low-level waste streams, such as cooling
water, condensates, and other similar waste discharged to the ground.
Most of the high-level waste remains in underground storage tanks and
will be removed from the tanks and treated in the proposed Waste
Processing and Immobilization Facility. Volume II, at Washington 11.
\[Note that there is no mention of TRU waste.\]

In its *Transuranic Waste Baseline Inventory Report (Revision 2)*,
(TWBIR) DOE/CAO-95-1121, December 1995, DOE stated:

Another category of possible future TRU waste is from Hanford site. The
tank wastes at Hanford can be classified as high-level wastes (HLW),
transuranic (TRU) wastes, or low-level (LLW). For purposes of receipt,
storage and management, all tank waste are managed as HLW. at 5-8.

The factual history that DOE did not consider sending tank wastes to
WIPP is further confirmed by top level DOE officials. Then DOE Assistant
Secretary for Environmental Management Jessie Roberson, who wrote to the
*Albuquerque Journal* on October 25, 2003 that "the department's
official view that some of the material currently in the tanks is
transuranic waste that qualifies for disposal at WIPP dates back at
least to December 1999."

Spent fuel also is prohibited by Section 12 of the LWA. In addition to
tank wastes, in the CRA and PABC inventories, DOE has included two new
waste streams that are not included in the TWBIR and are not TRU waste.
Those waste streams are K-Basin sludges, RL-W445 and RL-W446. Appendix
DATA, Attachment F, Annex J at J-RL-129 to J-RL-132.

The K-Basin sludges have always been managed as spent nuclear fuel. In
the 1996 "Record of Decision: Management of Spent Nuclear Fuel From the
K Basin at the Hanford, Site, Richland, WA," DOE specifically stated
that "sludge will continue to be managed as spent nuclear fuel." 61
*Federal Register* 10740 (March 15, 1996). While that ROD stated that
some "non-SNF debris from the basins" could be disposed of as low-level
waste (61 *Federal Register* 10738), none of the materials in the basins
were considered to be TRU waste. Indeed, a recent DOE contractor report
that discussed disposition options for the sludges at WIPP continues to
identify the wastes as "spent-nuclear-fuel sludge in the K-Basins at the
Hanford Site." *Disposition Options for Hanford Site K-Basin Spent
Nuclear Fuel Sludge*, PNNL-14729, January 2004 at 1.1.

Section 7(a) of the LWA establishes specific limits for the waste that
can come to WIPP, including for curie limits for remote-handled (RH) 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 RH 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).

As has been discussed in our September 21, 2004 written comments and at
the public meeting in July 2004 and June 2005 and in EPA's visits to
Hanford, there is a substantial dispute about whether Hanford tank
wastes and K-Basin sludges included in the CRA inventory and in the PABC
are actually high-level waste. Such HLW must be excluded from WIPP.

In its recertification decision, SRIC believes EPA has two options. One
is that the Administrator could not recertify. LWA, Section 8(f)(2).
Alternatively, the Administrator could recertify, but exclude the
disputed waste from the inventory approved by the recertification.

SRIC strongly believes that EPA cannot approve the CRA as submitted and
supplemented with the disputed wastes included in the inventory and
performance assessment calculations.

4\. [EPA must conduct a rulemaking regarding how it will make
determinations about what waste is high-level waste that is excluded
from WIPP]{.underline}.

As was discussed at the June 7, 2005 public meetings, EPA does not know,
procedurally and technically, how it will make a determination as to
whether waste is HLW and excluded from WIPP.

SRIC believes that the LWA provides no basis for such a waste
determination to be made in the recertification decision. Instead, SRIC,
and others at the June 7, 2005 public meeting, requested that EPA make
any such determination through a rulemaking. SRIC hereby reaffirms that
request.

The determination as to whether specific waste is excluded from WIPP
because it is HLW is clearly the type of matter that should be a rule.
The Administrative Procedure Act states:

"rule" means the whole or a part of an agency statement of general or
particular applicability and future effect designed to implement,
interpret, or prescribe law or policy.... 5 USC 551.(4).

SRIC requests that EPA notice a rulemaking regarding how it will make
future determinations about what waste is HLW that is excluded from
WIPP. There is substantial public interest in that matter. A rulemaking
would clarify for the public and DOE how EPA will make such waste
determinations.

Such a rulemaking would not be necessary had DOE not decided to reverse
more than 30 years of history and practice, which was summarized in #3
above, and decide to try to bring wastes that have always been managed
as HLW, and were not considered by Congress to be waste coming to WIPP,
nor did previous DOE EIS's and Records of Decision consider those wastes
to be for disposal at WIPP. But since DOE has not eliminated the Hanford
tank wastes and K-Basin sludges from the CRA inventory, it seems clear
that a rulemaking is required.

5\. [The revised CRA inventory remains deficient and
incomplete]{.underline}.

In the PABC, DOE has substantially revised the inventory. For
contact-handled (CH) waste, the inventory of emplaced, stored, and
projected waste has increased by 10,000 cubic meters (m3). The PABC
maintains that there remains 16,000 m3 of CH capacity. The increased
inventory comes from including some of the pre-1970 buried waste at
INEEL (now called INL). However, the PABC has included 17,998 m3 of the
55,800 m3 of pre-1970 buried waste at INL. However, DOE has not made a
final determination as to the actual amount of buried waste at INL it
expects to bring to WIPP. Whatever determination it makes could be
contested by Idaho, which has already successfully sued DOE to implement
removal of all the pre-1970 buried waste. The court's most recent
decision mentions an estimated 62,000 cubic meters of buried waste.
[Public Service Company of Colorado v. Kempthorne]{.underline}. Order of
March 31, 2003 by Judge Lodge.

Thus, if the amount of buried pre-1970 waste at INL exceeds 34,000 cubic
meters -- and there are clear DOE estimates that the amount is
substantially more than that amount \-- the amount of CH waste exceeds
the WIPP LWA limits. The CRA and PABC already state that the amount of
RH waste exceeds the WIPP LWA limits. In such a situation, SRIC believes
that EPA should clearly state in its recertification decision that it
appears that both the CH and RH inventories exceed the WIPP capacity.

SRIC further believes that in the next CRA, or before, EPA should
require DOE to clearly identify which CH and RH waste it intends to
dispose at WIPP and which CH and RH waste it will not dispose at WIPP.
There is substantial public interest in what, if any, TRU waste would
not be disposed at WIPP and what would be done with the wastes that
exceed the WIPP LWA limits. SRIC believes that DOE's plans should be
disclosed through public processes and that the EPA CRA process is one
relevant process.

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