Wayne Pierre
U. S. Environmental Protection Agency
1200 Sixth Avenue MS-HW-074
Seattle, WA 98101

Kathleen Trever, J.D.
INEEL Oversight Program
1410 N Hilton
Boise, ID 83706-1290

Thomas Wichmann
U. S. Department of Energy
785 DOE Place, MS 1108
Idaho Falls, ID 83402

August 14, 1998

Greetings,

On July 28, 1998, the Natural Resources Defense Council (NRDC) filed a legal petition with the Nuclear Regulatory Commission (NRC) "to assume and exercise immediate licensing authority over all high-level radioactive waste (HLW) that is stored in the 51 underground tanks located on the DOE Savannah River Site (SRS). The SRS Tanks are being decommissioned under DOE's High-Level Waste Storage Closure Program." Attached please find a copy of NRDC's petition to the NRC.

Even the most casual reader of this petition will recognize the similarities between DOE's actions at SRS and those intended at INEEL with respect to the slight of hand and arguably illegal delisting of Idaho Chemical Processing Plant (ICPP) high-level tank farm waste. DOE has delayed the release of the Draft INEEL High-level Waste Environmental Impact Statement until the Spring of 1999. Until that draft is released it remains uncertain how DOE proposes disposition of this HLW. DOE's actions at SRS pose a serious threat because the lessons learned at Hanford are not translated to other sites. This letter is an attempt to demonstrate our collective solidarity on this issue of HLW definition and NRC jurisdiction. We will not wait until the draft EIS is released to comment. The momentum of the "decide, announce, and defend" decision making requires early intervention.

In October of 1996 DOE released a document called "Regulatory Analysis and Proposed Path Forward for the INEEL High-level Waste Program." ⁽¹⁾ This plan lays out in detail what the Department's intentions are for high-level waste disposition. From an environmental advocate's perspective, this plan is a shocking rerun of the terminated Hanford tank waste grouting program. This canceled program involved mixing Hanford's high-level liquid wastes in their tank farm with cement (grout) and dumping it back into the ground. The March 1998 summary of the HLW EIS scoping only reinforced the 1996 HLW program document.

There are three main categories of radioactive waste, high-level, transuranic, and low-level. Under each of these main waste categories there are numerous subgroups. Different federal regulations apply to the disposal of different waste categories. Because of this regulatory framework, considerable emphasis is given to properly assigning the right category or class to a given waste. Unfortunately, the regulations are not as explicit in defining waste categories as one would hope.

The Nuclear Regulatory Commission defines high-level waste by the process that created it as opposed to specific characteristics. High-level is, (1) irradiated reactor fuel, (2) the waste generated by the processing of irradiated reactor fuel, (3) the solids into which the liquid wastes were converted. ⁽²⁾

Another wild card in this process is the regulation on the characteristics of treated wastes. Each high-level repository must have what are called waste acceptance criteria. This means all waste shipped to that repository must meet certain standards to ensure the contamination will not migrate and compromise the dump. Since DOE does not have a high-level dump yet there are no waste acceptance criteria. The Yucca Mt. Nevada site is still under evaluation. Currently, the collective wisdom is that waste vitrified into a glass form will meet any repository criteria, because the Land Disposal Restrictions (LDR) are met for RCRA listed hazardous wastes.

Despite the uncertainty of not having high-level waste acceptance criteria DOE must move forward in selecting treatment technologies and start building the plants. Court ordered compliance agreements with enforceable deadlines are the current drivers. Had DOE followed through with its 1977 Environmental Impact Statement commitments to vitrify the high-level wastes into a glass form, the Department would not be in its current bind. DOE's Record of Decision on its 1995 INEEL Environmental Impact Statement states that: "The technology selected [for high-level waste] is radionuclide partitioning for radioactive liquid and calcine waste treatment, grout for immobilizing the resulting low activity waste stream, and glass (vitrification) for immobilizing the resulting high-activity waste stream." ⁽³⁾

A similar high-level waste treatment program at the Hanford Nuclear Reservation in Washington State generated so much public opposition that DOE was forced to cancel the project. ⁽⁴⁾ The question of waste classification played a crucial role in ending the Hanford grouting program. DOE tried in 1990 to delist much of its high-level liquid waste saying it was not really high-level and therefore could be mixed with cement (grout) and dumped back into the ground. The Oregon and Washington State regulator's position is that the tank farm waste is high-level and therefor regardless what DOE's separations treatment, it must be managed and disposed as high-level wastes. ⁽⁵⁾

DOE is trying to pull the same high-level low-level nonsense at INEEL apparently thinking Idahoans are not aware of the Hanford escapade. The radionuclide partitioning technology is a process of separating out the transuranic elements (heavier than uranium) from the rest of the waste and calling it "high-activity." This "high-activity" waste would then be vitrified (made into glass) and eventually shipped to a geologic repository. The "low-activity" (LAW) waste (everything else) would be mixed with cement and dumped back into the high-level tanks at the ICPP or into the ground at the INEEL Radioactive Waste Management Complex. The driver to this treatment approach is money. The separations approach is cheaper because the volume shipped to a geologic repository is small and the volume dumped back into the ground is large. The Department also thinks that it can ship the small volume of high activity waste to another site to be vitrified, thereby avoiding building a plant at INEEL. Since DOE is building a vitrification plant at Hanford, the Department likely will ship INEEL's high-level waste there for treatment and avoid spending the $3 billion on vitrification plant in Idaho.

Another driver is waste repository capacity. Even if DOE can open Yucca Mt., its design capacity is not sufficient to hold the accumulated volume of commercial power reactor waste plus the military high-level waste. INEEL's radioactive waste is considered military because it was generated in support of the nuclear weapons programs. DOE now acknowledges that ".. no [INEEL] HLW will be sent to the first repository by 2035. The second repository will take 30 years to license and open." ⁽⁶⁾

Because of this waste constipation, DOE is looking for every excuse to reduce the volume of high-level waste requiring repository space. To complicate the problem further, DOE is not looking for another repository site that will be needed even if Yucca Mt. opens.

The show stopper of the Hanford grouting program occurred when the States of Washington and Oregon, and the Yakima Indian Nation filed a petition with the Nuclear Regulatory Commission (NRC) for a rule making on the classification of the Hanford tank wastes. ⁽⁷⁾ DOE backed down when the grouting (mixing with Portland cement) the "low-activity" waste did not meet the disposal requirements for high-level waste in the NRC regulations. The NRC did subsequently release a vaguely worded discussion paper in an attempt to answer the Petitioners request. ⁽⁸⁾

Hanford now is planning to vitrify both the high and low activity parts of its high-level wastes. The low-activity parts are to be stored on-site in a retrievable form. Thomas Tebbs with the Washington Department of Ecology believes this is a step in the right direction; but that it is a waste of resources to separate the high and low wastes; best just vitrify the whole volume together in one operation. ⁽⁹⁾ The bottom line for the regulators is that both "high" and "low activity" waste is high-level by definition and must be managed in compliance with the statutes and regulations.

DOE's cleanup shortcuts at INEEL make it clear that the culture within the Department has not changed. Shortcuts taken over the last four decades are the reason we now see cleanup cost pushing $29 billion ⁽¹⁰⁾ to partially remediate the site under Superfund. Every year, every decade that passes, the costs only escalate. The worst part of delaying environmental restoration is the pollution migrates away from the source every day. The further contaminates migrate the more unlikely any corrective action can be taken.

DOE's INEEL high-level waste (HLW) planning document perpetuates this shell game by stating: "The sodium-bearing and other mixed liquid wastes stored in the ICPP Tank Farm should not be classified and managed as HLW." ⁽¹¹⁾ This sodium-bearing waste constitutes about 3/4 of the total liquid high-level volume (~ 1.9 million gallons) in the ICPP tank farm. The Environmental Defense Institute's review of the ICPP's former operator, Phillips Petroleum Co., quarterly reports show clearly the chemicals used to dissolve the reactor fuel rods were sodium nitrate and sodium hydroxide. ⁽¹²⁾ Wastes generated in the fuel dissolution process went to the tank farm. There is no question that this waste meets the definition of high-level waste.

INEEL is unique from Hanford and other DOE sites because it used a calcining treatment process that converts most of the high-level liquid waste into a granular form stored in seven large underground silos at the ICPP. The Calciner is a incinerator that burns off the liquid portion and mixes the residual ash with granular calcine material so it can be pneumatically easily handled. Unfortunately, the sodium-bearing waste is not readily calcined unless it is diluted with aluminum nitrate. DOE put off calcining the sodium-bearing waste until it was faced with court ordered deadlines.

The sodium-bearing waste volume in the ICPP tank farm is about 1,648,400 gallons. ⁽¹³⁾ DOE's recent attempt to reclassify or delist this high-level waste is illegal because it meets the Nuclear Regulatory Commission definition that includes the waste generated by reprocessing spent reactor fuel and the concentrated wastes from subsequent extraction cycles, or equivalent.

Between 1954 and 1963 the Idaho Chemical Processing Plant (ICPP) dissolved two day cooled Materials Test Reactor (MTR) fuel. This fuel reprocessing program was known collectively as the RaLa runs. INEEL's equivalent to Hanford's Green Runs. Over this period, more than 113 separate process campaigns were run for the separation of barium-140 delivered to the Oak Ridge National Laboratory and Los Alamos for military programs. The RaLa campaigns used unique chemical separation processes from other ICPP nitric, sulfuric, or hydrofluoric acid uranium extraction campaigns. "This [RaLa] process involved the dissolution of MTR assemblies in a sodium hydroxide-sodium nitrate solution leaving a precipitate of sodium diuranate and fission products." ⁽¹⁴⁾ Early Atomic Energy Commission documents leave no doubt that the sodium-bearing high-level waste in the ICPP tank farm is the result of spent nuclear fuel reprocessing and therefore appropriately designated as high-level. Admittedly, a certain amount of the sodium-bearing waste is from decontamination flushes. However, it is still a product of irradiated reactor fuel reprocessing containing all the characteristics of HLW. DOE's own characterization of the sodium-bearing waste acknowledges that it exceeds the low-level Class C definition because of its high alpha emitter constituents. ⁽¹⁵⁾ Uranium and plutonium are alpha emitters. Even if a person accepted this > Class C category, near surface disposal would be prohibited by NRC regulations. ⁽¹⁶⁾

Even more troubling is DOE's attempt to use "cementitous [grouting] solidification for treatment" of this high-level waste. The discredited Hanford experience ⁽¹⁷⁾ where hundreds of millions of dollars were wasted on a high-level waste grouting program appears to be conveniently forgotten at DOE Idaho Operations Office. Internal DOE Hanford contractor reports revealed that the physical integrity of the grout would not last long. When radionuclides decay, they give off heat and radiation.

"Under the expected disposal conditions...the grout will remain at elevated temperatures for many years. The high temperatures expected during the first few decades after disposal will increase the driving force for water vapor transport away from the grout; the loss of water may result in cracking ... as the grout cools... (it) may draw moisture back into the grout mass. The uptake of moisture may have detrimental impacts on the behavior of the grout." ⁽¹⁸⁾

Additionally, DOE's attempt to reclassify the sodium-bearing waste may be a violation of the State Agreement with DOE that orders the Department to calcine all the waste in the ICPP tank farm. The order states that: "DOE shall commence calcination of sodium-bearing liquid high-level wastes by June 1, 2001. DOE shall complete calcination of sodium-bearing liquid high-level wastes by December 31, 2012." ⁽¹⁹⁾ Even if DOE fulfills its commitment to calcine the sodium-bearing wastes the issue remains about the classification of the partitioned "low-activity" part that DOE wants to mix with concrete and dump back into the old waste tanks. All the calcine (~3,800 cubic meters) is slated for the same chemical separations process to divide the "high-activity" from the "low-activity" parts.

Another very troubling part of DOE's plan is to leave the high-level tank farm sediments (heels) in the tanks. "The ICPP Tank Farm heels will not be removed and the Tank Farm will be closed under RCRA [Resource Conservation Recovery Act]." ⁽²⁰⁾ "The closed Tank Farm would probably meet the subtitle D landfill standards for industrial waste." ⁽²¹⁾ Subtitle D is a municipal garbage dump classification. It is obvious to the most pedestrian observer that garbage and radioactive waste are different. Actually, the ICPP would not even qualify as a Subtitle D dump because it lies in a flood plain. ⁽²²⁾ DOE's plan literally translates into ICPP becoming a permanent high-level waste dump site in clear violation to the applicable statutes.

The tank heels can be removed by conventional dredging technics or use the Hanford Tank Sluicer Mechanism. DOE believes: "However, it is not practical to remove all of the heels from the INEEL tanks, decontaminate the equipment, and remove all surrounding soils due to technological, economic, and health and safety factors involved." ⁽²³⁾

The Environmental Defense Institute (EDI) believes that the best approach is to vitrify the whole volume of the sodium-bearing liquid, all tank heels, and the calcine high-level wastes without any partitioning or separation of "high-activity and low-activity" wastes. The State of Idaho must fully review the failed Hanford grout program before committing to a similar project at INEEL.

Another reason the Environmental Defense Institute disagrees with DOE's separating the high activity and low activity parts is the chemistry. Part of the problem is the complexity of the chemistry involved in separating or partitioning radionuclides from each other in this high-level witch's brew. INEEL scientists recently completed the first stage of a multi-year project called Efficient Separations and Processing Program that preprocesses high-level waste and is funded at a half million per year through DOE's Office of Science and Technology. This project reportedly "separates highly radioactive elements from waste, reducing the volume of high-activity waste that must be disposed of at a repository." ⁽²⁴⁾ This separations/ partitioning process is also called Transuranic Extraction (TRUEX). Despite the proliferation implications of this program, the grouted residual from this solvent extraction process is destined for low-level burial; or the preferred option is dumping it on top of the waste tank heels. A Science Program Symposium in Richland Washington on June 26, 1996 sponsored by DOE showed that the Department is still struggling with the basic science of chemical separation and the applied technology is still in the hypothetical stage. This means that millions of additional R&D dollars will be required to actualize the technology.

The INEEL Pit 9 waste treatment plant could not get the chemical separations/ partitioning to work. The Pit-9 reburial of the residuals of chemical separations approach does not enjoy public acceptance for many reasons. First, the classification of low-level waste has no connection with environmental, health and safety hazards. ⁽²⁵⁾ It is merely a catchall category for all waste not classified as high-level or transuranic. Secondly, the public demands that the entire volume of the waste be processed directly into a stable vitrified form so that the inevitable interim on-site storage does not continue the migration of contaminates into the environment. Remember, DOE thinks maybe a second repository will be available in forty years. The Final Report from the Hanford Tank Waste Task Force got it right by recommending:

"The high cost and uncertainty of high-tech pretreatment and R&D threatens funding for higher performance low-level waste form, vitrification, and cleanup." "Put wastes in an environmentally safe form, using retrievable waste forms when potential hazards from the waste may require future retrieval and when retrievability does not cause inordinate delays in getting on with cleanup." "Let the ultimate best form for the waste drive decisions, not the size nor timing of a national repository." "Accept the fact that interim storage, at least, of the waste in an environmentally-safe form will occur for some time at Hanford. Select a waste form that will ensure safe interim storage of this waste." ⁽²⁶⁾

The repeated mantra "get on with cleanup" in the Hanford Waste Tank Task Force is repeated in public interest group reports. ⁽²⁷⁾ DOE is wasting precious resources by refusing to recognize the public's demand for real solutions to the radioactive waste problem. DOE must "get on with cleanup" and apply research and development (R&D) to technologies that will put all radioactive waste into a stable vitrified form for on-site storage for the near-term because there are no guarantees on any repositories coming on line soon. Additionally, the DOE is remiss in not investing in the essential R&D on emissions control that will be key to health and safety issues in all waste processing.

As the NRDC's petition shows, DOE's creative approach to its HLW problem is to generate new waste categories such as "low activity and incidental" that have no basis in the statutes or supporting regulations. HLW remains HLW even if it is leaked waste, intentionally disposed waste, waste in ancillary equipment and ventilation headers, pipelines, transfer lines, etc.. The HLW regulations extend to vitrified low activity waste (LAW), the salt grout, and related vitrification plants and facilities when these plants are used in support of a geologic disposal area under NRC definitions. DOE simply cannot avoid its legal obligation to permit its HLW disposition program under the NRC and follow the established waste definitions. Again, as the NRDC Petition shows, even if DOE gets an informal approval from the NRC, the Commission is not supported by the statutes or its own regulations.

Vitrification processing cannot be avoided in stabilizing and preparing the waste to meet future repository acceptance criteria. To ensure that the nuclear legacy mortgage is paid, the Department must make its case to Congress for specific funding for INEEL Waste Immobilization Vitrification Plant. Idaho State and Environmental Protection Agency regulators must aggressively challenge DOE's attempt to reclassify formerly high-level waste as low-level and learn from the Hanford debacle.

DOE's attempt to remediate the tank farm contaminated soils under CERCLA does not absolve the Department from meeting NRC HLW disposal requirements because of the ARAR's. Attached please find a copy of EDI's Draft Comments on the Draft ICPP Cleanup Plan. A subsequent briefing with the regulators and DOE verbally acknowledged major changes to the preferred alternative. Until a revised draft or the Proposed Plan is released, it is uncertain whether the discussed changes will survive.

If you have any questions related to issues discussed herein please do not hesitate to call. A technical briefing with the principals would be a useful exercise at this point.

Sincerely,

Chuck Broscious
Executive Director

Enclosures: NRDC Petition to NRC
                      EDI Draft Comments on Draft ICPP Cleanup Plan

________________________________

1. Regulatory Analysis and Proposed Path Forward for INEEL High-level Waste Program, Nuclear Operations Division High-level Waste Directorate, U.S. DOE Idaho Operations, 10/96. Hereinafter called DOE-ID-10544

2. 10 CFR 60.2. "High-level radioactive waste means: (1) irradiated reactor fuel, (2) liquid wastes resulting from the operation of the first cycle solvent extraction system, or equivalent, and the concentrated wastes from subsequent extraction cycles, or equivalent, in a facility for reprocessing irradiated reactor fuel, and (3) solids into which such liquid wastes have been converted."

3. Record of Decision, Department of Energy Programmatic Spent Nuclear Fuel Management and Idaho National Engineering Laboratory Environmental Restoration and Waste Management Programs, May 1995, page 15

4. Perspectives, Hanford Tank Wastes: Chaos for Cleanup, Hanford Education Action League, No.12, Winter 1993

5. Phone conversation with Dirk Dunning, Oregon Department of Energy, 2/14/97. Also see National Academy of Sciences, Separations and Transmutations Report, 1996, page 93.

6. DOE/ID-10544, page 2

7. Petition for Rulemaking, Yakima Indian Nation, State of Washington, State of Oregon, transmitted to the Nuclear Regulatory Commission January 2, 1990

8. 58 Federal Register Number 41, March 4, 1993

9. Phone conversation with Thomas Tebbs, Washington Department of Ecology, Pasco, Washington, 2/12/97

10. 1995 INEEL Baseline Environmental Management Report, page ID 12

11. DOE/ID-10544, page xi

12. Progress Report for April through June 1955, Technical Branch, Idaho Chemical Processing Plant,

C.Stevenson, 2/ 6/56, AEC Research & Development Report, Phillips Petroleum Co.,IDO-14362

Development of RaLa Process Utilizing MTR Fuel Elements, For Period Ending February 20, 1954, E. L. Anderson, et al., Phillips Petroleum Co., Idaho Operations Office, IDO-14295.

Development of RaLa Process for Installation at Idaho Chemical Processing Plant, E. Anderson, et al.,

July 8, 1954, Phillips Petroleum Co., IDO-14307.

Status of Development of the RaLa Progress as of April 1, 1954, E. Anderson, et al., Phillips Petroleum Co., Idaho Operations Office, IDO-14300.

Chemical Processing Technology Quarterly Progress Report, April - June 1961, Phillips Petroleum Co., National Reactor Testing Station, IDO-14567.

13. DOE/ID-10544, page 6

14. Laboratory Development of a Process for Separating Barium-140 from MTR Fuel, March 27, 1959, E. Anderson et. al., Phillips Petroleum Co., Atomic Energy Division, IDO-14445, Chemistry-Radiation and Radiochemistry TID-4500(14th Ed.), page 14

15. DOE/ID-10544, page 8

16. 10 CFR 61.5(10)(iii)