Charles M.Broscious

Executive Director

Environmental Defense Institute

P. O. Box 220

Troy, Idaho 83871

 

 

In the United States District Court

For the District of Idaho

 

 

Natural Resources Defense Council, Inc.                          )

Confederated Tribes & Bands of the Yakama                   )

Nation, Snake River Alliance                                            )

                                                                                        )

                                                            Plaintiffs                )

                                                                                        )     Case No. 01-CV-413 (BLW)

v.                           )

                )     MEMORANDUM IN

                )     SUPPORT OF

                )     ENVIRONMENTAL DEFENSE

                )     INSTITUTE MOTION FOR

                )     LEAVE TO PARTICIPATE AS

                )     AMICUS CURIAE

Spencer Abraham, Secretary, Department                        )

of Energy, United States of America,                                )

                                                            Defendants           )

                                                                                        )

 

 

Introduction

 

            The Environmental Defense Institute, Inc. (EDI) submits this memorandum in support of its motion to participate as amicus curiae. EDI is a non-profit organization dedicated to promoting responsible public policy concerning Idaho’s human and natural environment and protecting the health and welfare of Idaho’s citizens and natural resources.  The majority of EDI’s 400+ supporters are Idaho residents.  EDI’s objectives are to appraise the Court of the gravity of the U. S. Department of Energy’s (DOE) mismanagement of radioactive and hazardous chemical materials at its Idaho National Engineering and Environmental Laboratory (INEEL).  EDI members live downstream and/or downwind of INEEL and will be irreparably harmed by hazardous and radioactive releases into the environment.

            Though EDI generally supports NRDC’s complaint, EDI is not represented by Plaintiffs NRDC et al.; nor is EDI represented by the State of Idaho as an amicus curiae participant in this proceeding.

            EDI meets the three recommended criteria in Ryan v. Commodity Futures Trading Commission, 125 F.3d 1062, 1063 (7^th Circuit 1997) to participate as amicus curiae which in pertinent part states, “[1] a party is not represented competently or is not represented at all, [2] when the amicus has an interest in some other case that may be affected by the decision in the present case ... or [3] when the amicus has unique information or perspective that can help the court beyond the help that lawyers for the plaintiffs are able to provide.” 

            Satisfying the above criteria: 1.) EDI has never been asked to be a co-plaintiff or participate in the development of complaints to the court related to this case;  2.)  EDI, along with co-plaintiffs David McCoy and Keep Yellowstone Nuclear Free, Inc., filed on July 9, 2002 a Notice of Intent to Sue the Department of Energy, Idaho Department of Environmental Quality (IDEQ), and the Environmental Protection Agency (EPA) over DOE’s failure to Comply with the Resource Conservation Recovery Act and other statutes related to treatment, storage, and disposal of mixed hazardous and high-level radioactive waste at INEEL, with alleged violations that directly pertain to the issues presented to the Court in these proceedings; and, 3.)  EDI’s unique fourteen-year history of focusing exclusively on the environmental, health, and safety issues at INEEL, means crucial issues of fact and perspective not presented by Plaintiffs can be made available to the Court if EDI’s amicus curiae participation is granted by the Court.

            Specifically, DOE Order 435.1 poses an immediate and long-term threat to Idaho’s environment, public health and safety by reclassifying mixed hazardous and high-level radioactive waste in apparent violation of the Nuclear Waste Policy Act (NWPA), Resource Conservation Recovery Act (RCRA) and other relevant federal statutes applicable to mixed hazardous high-level radioactive (HLW) waste treatment, storage and disposal.

            EDI requests leave to submit the attached Amicus Curiae Brief for the sole purpose of offering crucial information, in addition to that submitted to the Court by Plaintiffs.  EDI believes that this information is essential to the judicial process currently in progress.  EDI further believes it imperative that the Plaintiffs NRDC et al. request for “[a] declaratory judgment ... that DOE has violated the NWPA, 42 U.S.C. ss 10101 et seq., by promulgating DOE Order 435.1 as it relates to incidental waste,” is granted by the Court.  This Amicus Curiae Brief will show:

1.      The effect that the arbitrary, capricious and alleged illegal DOE Order 435.1 is having on specific INEEL operations not currently made available to the Court by Plaintiffs or the subsequent amicus brief submitted from the State of Idaho;

2.      The effect DOE Order 435.1 has on EDI supporters and the general public whose health and safety will be irrevocably harmed;

3.      How DOE Order 435.1 violates not only NWPA but also RCRA and other relevant and federal statutes applicable to the treatment, storage and disposal of HLLW.

 

Background

            The INEEL over its fifty-year history has generated on-site or received via off-site shipments, significant quantities of high-level radioactive spent nuclear fuel.   A high percentage of this irradiated reactor fuel was “reprocessed” using an aqueous process which dissolves the fuel rods in acid/solvent solution that then makes it possible to extract highly enriched uranium and other nuclear isotopes for various United States nuclear military programs.  The mixed hazardous and high-level radioactive liquid waste (HLLW) was then interned primarily but not exclusively in underground storage tanks.  These HLLW tanks were never intended to be the permanent repository for this waste both because of the known toxicity of the waste, and the limited service life of the tanks themselves. The concrete vaults that encase the eleven high-level 300,000-gallon tanks at the Idaho Nuclear and Environmental Technology Center (INTEC) are known to leak.  A 1994 State of Idaho investigation showed that over a twenty-three month period (11/92 to 9/94) about 123,500 gallons of contaminated water was pumped from the tank vault sumps.  The investigation concluded that the source of the water was precipitation, irrigation, and leaking waste system lines. [1]   DOE’s reliance on these failed containment systems for permanent disposal of HLW under DOE Order 435.1 is misguided and puts EDI members and the general public at significant risk.

            The INEEL sits directly atop the Snake River Plain Aquifer, designated by EPA as a regional sole source aquifer.  Past and current INTEC HLW mismanagement practices have resulted in massive hazardous and radioactive waste contamination of the groundwater under the facility. This recognized groundwater contaminate pathway represents a significant hazard to the general public and EDI’s members just with current contaminate levels.  If DOE’s Order 435.1, that will allow permanent disposal in these already leaking units, is not stopped, more pollution will migrate to the aquifer, further putting EDI members and the general public at risk.  See Attachment B page 24 that shows radioactive groundwater contamination under INTEC greater than 60,000 times the EPA regulated maximum concentration level for drinking water. The hazard is intensified by the fact that the U.S. Geological Survey report shows that the top ground level of the INTEC HLW Tank Farm is within the Big Lost River 100-year flood plain, which means the bottom of the tanks are some 50 feet below the 100-year flood levels. [2]  Flooding of these HLW tanks and the related HLW processing buildings will flush pollutants into the aquifer and endanger the general public and EDI members, since these radionuclides are toxic for tens of thousands of years.

            At INEEL, the primary facility for reprocessing irradiated nuclear reactor fuel, also called spent nuclear fuel (SNF), is the Idaho Nuclear and Environmental Technology Center (INTEC) formerly known as the Idaho Chemical Processing Plant (ICPP).  The INTEC underground HLLW Tank Farm, consisting of eleven 300,000-gallon tanks with a current volume of about 1.4 million gallons, [3]  is only part of a large complex of an additional 127 HLLW tanks that are part of the INTEC HLLW treatment operations (also called INTEC Liquid Waste Management System).  Attachment A lists these 127 HLLW tanks, their location and what process they are attached too, however the waste volume of their sediment contents is uncertain. 

            Some of these additional tanks that are part of the INTEC Liquid Waste Management System (ILWMS) high-level waste processing system are listed in the Idaho High-level Waste Draft Environmental Impact Statement as a significant criticality hazard due to the high concentration of fissile (uranium and plutonium) material content of the tanks. [4]

            NRDC’s Complaint to the Court did not mention these additional 127 tanks nor the HLLW contents in characterizing the INEEL hazards, yet it is a crucial issue the Court must evaluate because DOE Order 435.1 will specifically affect the final disposition and closure of all these tanks and whatever residual waste contents are left in the tanks.  Moreover, all the INTEC HLLW tanks do not meet the requirements of the Resource Conservation Recovery Act (RCRA), and therefore do not have RCRA permits as storage units much less permanent disposal units. 

            The process of closure of these HLLW tanks at INEEL has begun.  At issue here is not the need to close the tanks, but what federal statutes will be appropriately implemented and enforced to assure proper closure in order to protect the public and environment.  The Idaho Department of Environmental Quality (IDEQ) issued an RCRA HLLW tank Closure Plan (RCRA/HWMA Permit Docket No. 10HW-0204) for two INTEC tanks.  EDI alleges that the Closure Plan violates the Nuclear Waste Policy Act (NWPA), and RCRA. Attachment B (EDI 1/16/02 Amicus Curiae Brief before IDEQ) herein shows that HLLW units are within the 100-year flood plain of the Big Lost River and therefore violate RCRA HLW disposal restrictions.   Although this Closure Plan only immediately affects two HLLW tanks (WM-182 and WM-183) it will set a precedent for the closure process for all of the 138 HLLW tanks at INTEC.

            The INTEC Tank Closure Plan violates 40 CFR 191 for disposing mixed high-level radioactive waste in near-surface internment that cannot meet the 10,000-year minimum requirement.

            The Tank Closure Plan violates 40 CFR 265.112(b)(4) that states in pertinent part, “A detailed description of the steps needed to remove or decontaminate all hazardous waste residues and contaminated containment system components, equipment, structures, and soils during partial and final closure including, but not limited to, procedures for cleaning equipment and removing contaminated soils, methods for sampling and testing surrounding soils, and criteria for determining the extent of decontamination necessary to satisfy the closure performance standard.” (Emphasis added). And Subpart J--Tank Systems 40 CFR Sec. 265.197(a) Closure and post-closure care states “ At closure of a tank system, the owner or operator must remove or decontaminate all waste residues, contaminated containment system components (liners, etc.), contaminated soils, and structures and equipment contaminated with waste, and manage them as hazardous waste.” [Emphasis added]

            DOE is currently (via DOE Order 435.1), and EDI contends illegally, delisting a previous fifty-year DOE contention that “sodium bearing waste” (SBW) contained in INEEL tanks is HLW.  DOE now contends that:  “SBW is liquid waste that is generated from decontamination operations of INTEC facilities involved in the processing of spent nuclear fuel and the treatment of HLW.  SBW contains hazardous and radioactive materials and is classified as mixed transuranic waste.” [5]   This is at issue here because seven (WM-108 through WM-186) tanks are classified by DOE as SBW tanks in the INTEC Tank Farm. Delisting of these tanks as HLW tanks by DOE has major implications with respect to closure of these and all other HLW units.  EDI contends that DOE’s own operator reports show that many of these SBW tanks received   “first cycle raffinate.” [6]   Raffinate is the high-level waste remaining after first, second, or third cycle solvent extraction of high enriched uranium from SNF.  The State of Idaho maintains that sodium-bearing waste in the INTEC Tank Farm is HLW.  The State notes in the forward to the Idaho High-Level Waste Environmental Impact Statement that:

“Reprocessing at INTEC used a three-cycle solvent extraction process to recover highly enriched uranium from spent fuel.  Each cycle created liquid waste, as did decontamination activities.  DOE recently adopted Radioactive Waste Management Order (DOE Order 435.1) identifies HLW as liquid produced ‘directly in reprocessing.’ Idaho interprets this HLW definition to include waste from the first reprocessing cycle (non-sodium bearing waste) and second and third cycles (sodium bearing waste).  This interpretation is consistent with language in the Settlement Agreement [and Consent Order] that identifies both sodium-bearing waste and non-sodium bearing waste as HLW.  In addition, liquid from the second and third extraction cycles was routed to an evaporator before being discharged to the Tank Farm.  As such these liquids contain radioactive fission products in sufficient concentrations to warrant permanent isolation in a geologic repository.” [7]

 

            DOE’s attempt to delist the SBW tanks defies its own internal contractor documents that show the history of these tanks.  For example, the closure of INTEC HLLW tanks WM-182 and WM-183 as non-HLLW units shows an annualized history for these tanks.  According to DOE’s own internal reports, these tanks received both Aluminum and Zirconium clad fuel raffinate between 1955 and 1997.   Only after 1997 did these tanks receive sodium-bearing waste.[8]  The sediments or heels in these tanks are a result of the SNF reprocessing waste generated between 1955 and 1997 and therefore are HLW defined by NWPA. See attached Exhibit # 1.

            The State of Idaho and EPA regulators are thrusting a “Risk-Based” closure plan that has a multitude of questionable assumptions without supporting sampling data, and specific limits on tank heels left in place, all of which are not fully disclosed. Specifically, how much tank heel will be left in the tanks and grouted over in order to meet the “Risk Based” no harm criteria?   

            Even more egregious is the fact that the DOE technology development that currently exists can remove nearly all the tank sediments, yet for cost cutting measures this has not been implemented [9]  DOE estimates that about 20,000 gallons of  tank sediment heals are in each of the eleven HLW Tank Farm units which would leave a total of  220,000 gallons permanently interned. [10] 

            Fundamentally, EDI alleges that easily exhumeable mixed hazardous high-level waste from the INTEC tanks will be sent to other un-RCRA permitted treatment, storage, disposal (TSD) at INTEC (i.e., High-level Liquid Waste Evaporator (HLLWE), Process Equipment Waste Evaporator (PEWE), and the Liquid Effluent Treatment and Disposal (LET&D).  This is illegal!

            During the tank closure plan review, EDI and David McCoy unsuccessfully requested reopening or extension of the period for public comment pursuant to 40 CFR 124.10 and 124.14.  Because of information that raises substantial new questions related to DOE’s proper closure of High Level Waste Tanks, we objected to IDEQ’s determination that: “Based on our review of your submittal, the DEQ remains confident that the plan for moving forward with the Closure of the first two of eleven Tank Farm Facility (TFF) tanks is compliant with [Hazardous Waste Management Act] HWMA regulations, and it represents full disclosure on the part of DOE to address the operational realities associated with closure of the mixed waste tanks.” This statement fails to address the various crucial legal issues EDI and McCoy presented in our “Request for Investigation” some of which include:

1.                  Decontamination steam jets do not have the capacity (according to INEEL experts) to remove the solids in the tank heels, therefore leaving about 30,000 gallons of mixed high-level waste sediments in the two tanks; [11]

2.                  Decontamination water/steam jet sprays will not resuspend the heel solids nor remove hazardous heavy metal waste because, as INEEL experts pointed out, they are precipitates of a < 2 mole acidic raffinate;

3.                  Grout will not mix with the tank heels which violates the RCRA and EPA’s Land Disposal Restrictions;

4.                  Grout will only “roll over tank heels” and sandwich them between the tank bottom, and required sampling of the final waste form to validate encapsulation is not planned or technically possible as identified by INEEL expert’s comments;

5.                  Grouting of the vault completely under the tank is believed by INEEL’s own engineers as impossible, yet the Closure Plan nonetheless assumes it, which in turn invalidates the Plan’s Risk Assessment assumptions, and fate and transport modeling;

6.                  The “Risk-based Clean Closure” does not offer sampling data to specify the minimum amount of tank heels that will be left in the tanks to satisfy this criteria.

7.                  Grouting of the tanks sumps will only partially “float” the tanks causing deformation and possible breaching of the fifty-year-old tanks. 

8.                  Closure Plan Risk Assessment fails to include 400 rem/hr soil contaminate loading for cesium-137 (102 million picocuries/gram), strontium-90 (56.8 million pCi/g), and plutonium (276 nano curies per gram) that are the result of tank vault and service line leaks as required in 40 CFR 265.111;

9.                  Tanks WM-182 and 183-history shows aluminum and zirconium reactor fuel reprocessing raffinate up until 1993 and 1997 respectively that produced the solid high-level waste precipitate in the tank heels. Sodium bearing liquid waste was only subsequently added after these dates, therefore DOE’s claim to strictly SBW with respect to the tank heels is false;

10.              Tank heel solids (raffinate precipitates) are mixed high-level waste by definition (42 USC 10101 et.seq.  and therefore cannot be legally disposed in shallow land burial as designated in the Tank Closure Plan’s “Landfill Closure Plan”. Also see: (40 CFR191 Disposal of High-level Waste) and (Nuclear Waste Policy Act at 42 USC ss 701 et seq.)  DOE estimates for the eleven underground tank farm the heels or sediments will be the equivalent of 79,000 gallons [12];

11.              Risk-Based assessment fails to include the fact that the tanks are some forty feet below the 100-year flood plain of the Big Lost River and the leaching effect of contaminated soil, tank vaults, and tank contents into the Snake River Plain Aquifer. Disposal of hazardous waste is also prohibited by RCRA in a flood plain;

12.              The tanks have leaked reactor fuel reprocess waste (according to INEEL experts) into the tank vaults thereby extensively contaminating the concrete vault floor and sides, which was not factored into the Risk Assessment as part of the contaminate loading factors in the fate and transport modeling.

 

Respectfully Submitted,

Dated this  ____ day of August, 2002

__________________________

Charles M. “Chuck” Broscious
Executive Director
Environmental Defense Institute

P. O. Box 220

Troy, ID 83871-0220

V. 208-835-6152

F. 208-835-5407

Email; edinst@tds.net

 

Attachment A: INTEC Liquid Waste Management System List of Tanks.

Attachment B: Environmental Defense Institute Amicus Curiae Brief, Before the Director of the

            Idaho Department of Environmental Quality, January 16, 2002.

 

Exhibit 1: Idaho Hazardous Waste Management Act/ Resource Conservation Recovery Act
            Closure Plan for Idaho Nuclear Technology and Engineering Center Tanks WM-182 and

WM-183, December 2000, INEEL High-Level Waste Program, Bechtel BWXT Idaho, DOE/ID 108012.

 

Exhibit 2:  Allied Chemical Corporation, Idaho Chemical Programs, and Operations Office,

Inter-Office Correspondence, August 7, 1972, Composition of First and Second-cycle

Wastes, Rhod-4-72