September 19, 2000

Alan G. Lance, Esq.
Attorney General
State of Idaho
Statehouse #210
Boise, ID 83720-0010

Charles S. Allred
Administrator
Idaho Department of Environmental Quality
1410 N. Hilton
Boise, ID 83706-0502

Darryl Early, Esq.
Assistant Attorney General
Idaho Department of Environmental Quality
1410 N. Hilton
Boise, ID 83706-0502

RE: May 5, 2000 Notice of Intent to Sue --New Waste Calcining Facility (NWCF)

(1) Petition for Declaratory Ruling; (2) Request for Imposition of Financial Sanctions Against DOE for Failure to Furnish a Closure Plan as Mandated by the Second Modification to the Consent Order and by the Resource Conservation and Recovery Act ("RCRA")

Dear Mr. Lance, Mr. Allred, and Mr. Early,

Mr. Allred's May 25, 2000 letter re: the Calciner stated that "Pursuant to the Second Modification of the NON-CO, the DOE will inform the DEQ by no later than June 1, 2000 of its intent to either seek full permit status for the Calciner or to submit a closure plan for the Calciner." Previously, by a March 31, 2000 letter of Donald Rasch, DOE had requested an extension of time regarding compliance with the Second Modification to the NON-CO deadline. The DOE sought thereby to avoid the triggering of the closure plan submission for the Calciner.

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

By May 24, 2000 letter of Donald Rasch, the DOE informed the DEQ that "we will submit a closure plan for closure of the Calciner at the New Waste Calcining Facility." The closure plan will be submitted within 90 days of June 1, 2000 or by August 30, 2000. To the best of our knowledge, no closure plan has been submitted. DOE is violating the lawful requirement to submit a RCRA mandated Closure Plan in the agreed upon time-frame. The actions and press statements of DOE indicate DOE has no intention of submitting any Closure Plan by the required date of either the Second Modification to the Consent Order or by any date promised to the DEQ.

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 DEQ has never issued a permit or denied a permit for the Calciner. The DOE previously stated that it would submit a closure plan on June 1, 2000. However, the DOE is now publicly stating to the Idaho press (see attachment 1) that it is reserving the final decision on the Calciner's future until January of 2001. The Second Modification and RCRA mandate otherwise.

To our knowledge, DEQ, as the appointed RCRA authority, has taken no steps to enforce the submission of the Closure Plan by DOE. The Second Modification to the Consent Order 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. DEQ 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 Closure Plan is long overdue from DOE.

To clarify the position of the DEQ in this matter with respect to the assurances that the DEQ has given the parties to the 5/5/00 Notice of Intent to Sue that their contentions at least with respect to the Calciner vessel are indeed "moot," We are hereby petitioning the DEQ pursuant to Idaho Statute 67-5232 for a declaratory ruling that the DOE must immediately submit a Closure Plan for the Calciner in accord with the Second Modification to the Consent Order and RCRA. It should be noted that the 5/5/00 Notice of Intent to Sue referred to the entire New Waste Calcining Facility in which the High Level Waste Evaporator and other associated waste treatment equipment continue to operate under "interim status" or no permitted status at all, including facilities which have been described as "unpermittable" by the DOE. We do not consider our 5/5/00 Notice to be "moot" with respect to these NWCF operations which continue without permits.

We are further requesting that the DEQ impose financial sanctions and civil liability for DOE's failure to have furnished the Closure Plan for the Calciner by the mandated dates of the Second Modification to the Consent Order and that such penalties be assessed on a daily basis until the submission of the RCRA mandated Closure Plan.

We would appreciate a response from the DEQ in this matter by September 29, 2000.

Thank you.

Sincerely,

Chuck Broscious
Executive Director
Environmental Defense Institute
P.O. Box 220
Troy, Idaho 83871-0220
P 208-835-6152
F 208-835-5407

on behalf of

Erik Ringelberg
Executive Director
Keep Yellowstone Nuclear Free
P.O. Box 4838
Jackson, WY 83001
P 307-732-2040
F 307-732-0129|
 

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

Attachment:

Morning News, Friday September 8, 2000 "INEEL Faces Another Legal Challenge"