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Environmental Defense Institute
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Idaho National Engineering and Environmental Laboratory

Two Groups Link Arms in Suit against DOE Incinerator

The Environmental Defense Institute and Keep Yellowstone Nuclear Free joined together in a lawsuit against the Department of Energy's plans to build a incinerator at INEEL. Jackson Wyoming attorney Gerry Spence filed the lawsuit in U. S. District Court in Casper Wyoming on September 17.

The Department of Energy (DOE) plans to build the incinerator to burn radioactive waste containing plutonium and hazardous waste such as PCBs currently stored at INEEL, in eastern Idaho. Gerry Spence, serving without fee, is leading a nationwide team of attorneys in representing the plaintiffs in the suit. At a town meeting in Jackson in August, Spence raised almost half a million dollars to fund the litigation. Donors include the actor Harrison Ford, a Jackson resident. The Complaint alleges that the Department of Energy violated the National Environmental Policy Act in its decision to build the Incinerator. It names the Department of Energy, and Bill Richardson, Energy Secretary, as defendants. The Complaint states that "critical decisions about the project were made behind closed doors and out of the public view, in violation of federal law." Among other matters, it alleges that even though the incinerator threatens to dump airborne radioactive and hazardous wastes into Idaho, Wyoming and possibly other neighboring states, the citizens of these states were not consulted or afforded an opportunity to comment on the project. The suit also alleges that in its planning, the Department of Energy failed to "acknowledge the past accidents, mishaps, and regulatory lapses which have plagued its nuclear waste program, and which call into question its unsupported assurances about the safety of the incinerator project." The private contractor selected to build the incinerator, British Nuclear Fuels Limited, has been sharply criticized for its operation of a nuclear facility in Ireland which has led to pollution of the North Sea. DOE also built and operates the troubled incinerator at the Oak Ridge National Laboratory. Recent reports indicate accidental and unexplained venting of unfiltered gases into the environment on four occasions at the Oak Ridge incinerator in 1996. Spence states: "We will be asking the federal court to grant an injunction halting this INEEL incinerator until the people of Wyoming have had an opportunity to weigh in on it, and the DOE has fully studied its environmental impacts. The national treasures which are Yellowstone and the Grand Tetons are at risk, and we do not intend to let this short-sighted project go forward." Spence who defended the Karen Silkwood estate, is aided on the lawsuit by David Nevin, a Boise trial lawyer, and Laird Lucas of the Land and Water Fund of the Rockies, an environmental law specialist. Brian Hanson of Denver and Richard Condit of Washington DC, both environmental attorneys are also on the team. Before starting the Environmental Impact Statement, DOE had contracted with a private company (British Nuclear Fuels Ltd.) to construct and operate the facility, and that company had applied for a series of state and federal permits relating to the incinerator. This is a blatant violation of the law which requires that an agency must study alternatives before it selects a course of action not afterward as DOE has done here.

DOE ignored environmental ramifications of the incinerator by limiting its analysis to a 50 mile radius - wholly disregarding the fact that prevailing winds may carry airborne emissions of radioactive and hazardous materials much further, including into the Yellowstone/Teton region and population centers in eastern Idaho and western Wyoming.

DOE inadequately describes the real risks of cancer and other human health impacts from the incinerator, failing even to disclose the total cumulative effects which the expected release of radioactive and toxic materials will pose for people who live in the downwind region. The next legal step is to file for a temporary restraining order in federal court to stop DOE from breaking ground on the plant before it meets its legal responsibilities.

The Dangers of the Contemplated Incinerator

What INEEL Plans

What is unique about this new incinerator is that it will burn radioactive waste containing plutonium and other long-lived isotopes heavier than uranium, whose toxic radioactivity will be deadly for hundreds of thousands of years. This waste is mixed with hazardous chemicals which current regulations restrict from direct disposal without treatment. Landfills in the sky, however, should not be an option because it violates the cardinal rule of pollution containment.

The DOE attempted to build a radioactive waste incinerator at its Lawrence Livermore National Laboratory in California but were forced to cancel the project because of public opposition. Livermore reported what the public already knew, that Aincineration is a violation of the cardinal principle of radioactive waste treatment; namely, containing radioactivity rather than spreading it around.@

The planned INEEL incinerator has Wyoming residents justifiably concerned. Not only because INEEL has an abysmal operating record for managing the most dangerous of hazardous materials, but as Gerry Spence said, Awhile the real dangers from emissions lie in Wyoming, nothing was done to protect the rights of Wyoming citizens, and the visitors of Yellowstone.@

Since the incinerator has not yet been built, the predicted emission numbers are only estimates that could radically change when the actual operating data are analyzed. A review of the publically available INEEL operating history for the last decade reveals thirty nuclear facility emission control system breakdowns, eight of which involved filter failures.

Earl Budin, M. D. associate professor of radiology at University of California, Los Angles Medical Center notes in a recent article that Aa alpha particle from a single plutonium-238 atom can cause lung cancer.@ It is not fair to citizens of Idaho, Wyoming, and other downwind populations to be subjected to hazards from nuclear waste treatment that other states will not allow within their borders.

John Gofman, M.D., Ph.D., credited for first isolating plutonium, and professor emeritus of Molecular and Cell Biology, University of California , Berkeley notes that: AI have studied the biological effects of ionizing radiation --- including the alpha particles emitted by the radioactive decay of plutonium. By any reasonable standard of biomedical proof, there is no safe dose, which means that just one decaying radioactive atom can produce permanent mutation in a cell's genetic molecules.@ AMutation is the basis not only for inherited afflictions, but also for cancer. A

When asked whether there is such a thing as a safe dose of radiation, Gofman says: AThere has never been in the history of science any evidence that there=s a safe dose of radiation....there is no threshold. There has never been a shred of evidence for it, and you can expect cancer or leukemia or chromosome injury and harm all the way down to the lowest conceivable dose.@

The relevance of these credible medical opinions to the proposed incinerator is that in spite of all the emission control systems, one can expect health effects on the surrounding populations as a result of these operations. This risk to the general public is unacceptable. Idaho, Wyoming residents, and the millions of Yellowstone visitors need to be concerned because the prevailing winds blow over INEEL toward Wyoming. Pollution particles in the air can Arain out@ with precipitation. Since the Yellowstone region gets enough precipitation to support forests and ski areas, more may be coming down with the snow than just moisture.

In addition to radioactivity, the incinerator permit acknowledges some 43 chemicals and heavy metal contaminates that will be released to the air, eleven of which are known carcinogens. The Permit states that over 30 tons of hazardous materials will be released every year to the atmosphere.

Another attempt in 1992 to incinerate plutonium contaminated nuclear waste at INEEL was canceled due to design problems which resulted in emissions exceeding regulatory limits.

Who Will Operate This Incinerator?

DOE signed a $1.18 billion contract with British Nuclear Fuels Limited (BNFL) to build and operate the incinerator to treat approximately 85,000 cubic meters of waste currently stored at INEEL. The facility will likely treat an additional 120,000 cubic meters of nuclear waste from INEEL and other DOE sites.

DOE currently operates a mixed radioactive waste incinerator at DOE=s Oak Ridge National Laboratory in Tennessee that is similar to the plant BNFL wants to build at INEEL. Workers and residents around this incinerator say that its emissions exceed regulatory limits. The State of Tennessee is not conducting its own monitoring and relies on Oak Ridge=s Aself monitoring@ reports. Investigative news reports by the Tennessean newspaper document that in 1996, the emergency vent in the incinerator opened four times in three months releasing unfiltered gases to the air. Residents attribute extensive health problems experienced by downwinders to the incinerator. The actual operating emissions of this Tennessee incinerator offer a truer picture of what the likely INEEL emissions will be, because the proposed INEEL incinerator emissions are just projected estimates based on optimistic assumptions. Public outrage over the Oak Ridge incinerator and associated health problems, lead to DOE=s recent announcement that it will shut-down the plant.

Similar operating or proposed DOE radioactive waste incinerators at Rocky Flats in Colorado, Los Alamos in New Mexico, and Lawrence Livermore in California, were shut down as a result of successful litigation against DOE by environmental organizations.

The Rocky Flats mixed hazardous waste incinerator was scheduled for a trial burn of plutonium waste. The Sierra Club took DOE to court and the court ruled in 1990 that DOE could not proceed without producing an environmental impact statement and gaining a state hazardous waste treatment permit. Recognizing the extent of public opposition, DOE permanently shut-down the incinerator.

The DOE site at Los Alamos National Laboratory (LANL), in 1989, planned on incinerating waste contaminated with plutonium as a means of reducing its volume. Due to wide spread public opposition to the incinerator and successful litigation by the State of New Mexico, DOE dropped the LANL incinerator project completely.

Can DOE be trusted to tell the truth about how much pollution it dumps into the air at its nuclear operations? A recent 1997 Clean Air Act suit brought by Concerned Citizens for Nuclear Safety against DOE convinced a U.S. Federal Court that DOE falsified its radiation release reports at the Los Alamos National Laboratory. The court ordered an independent auditor to monitor DOE=s radioactive releases and report directly back to the court. This decision suggests that DOE cannot be trusted to tell the truth.

Clearly, DOE is required to Atreat@ its mixed radioactive waste to meet regulatory requirements. These legitimate regulations forbid burial of liquid and flammable chemicals without treatment. There are other credible treatment options other than incineration that need to be utilized. This waste must be safely stored until an approved non-incinerator option is built.

The proposed INEEL incinerator must not be built because the current state of applied emission control technology has not evolved to the point where radionuclides and/or other hazardous material are adequately filtered out. Once the incinerator is built it will be very difficult to shutdown because of lax state monitoring to tell the whole truth about what is going out the stack.

Responsible scientists for the government will never warrant that the proposed incinerator=s filters will contain all cancer-causing nuclear particles. Nor will they warrant the filters will not fail. INEEL=s past operations have been disturbing, its history for truth-telling, abysmal--thirty nuclear facility emission control breakdowns, eight of which involved filter failures that released 18,564,868 curies of radionuclides into the atmosphere between 1952 and l989 alone. The EPA regulates civilian exposure to radionuclides in terms of picocuries--one, one-trillionth of one curie. The extent of this potentially devastating exposure to Idaho and Yellowstone can only be imagined and is yet to be revealed by INEEL.

Is Yellowstone really downwind of INEEL? DOE tells us that Yellowstone is not really down wind from INEEL. This is in serious error and is no doubt based on inaccurate information gained from sources supporting the incinerator. "In general, particulate matter that is emitted into the airflow over eastern Idaho will be directed, the majority of the time, over some portion of northwestern Wyoming," says Jim Woodmencey, Meteorologist, Jackson, Wyoming. When there are radioactive particles in the air, major precipitation such as we experience in heavy winter snows, brings on the "rain-out effect" that causes these particles to fall to the ground with the rain or snow and to pollute both ground and surface water.

In June, the Centers for Disease Control=s INEEL Health Effects Subcommittee unanimously passed a resolution calling on the federal Agency for Toxic Substances and Disease Registry to review the proposed incinerator to Aensure that health and safety requirements are met with special emphasis on proposed incineration of transuranic waste and the emission control system=s ability to filter ultra-fine particles of plutonium.@ This resolution is the outcome of the committee=s concerns about the adequacy of DOE=s environmental impact statement and a desire to have an independent public health agency review the project.

Generally, public concern has focused on the incineration component of the treatment process. The other processes of super-compaction and grouting (mixing with cement) are less controversial except for DOE=s priority of treating the stored waste first and making no commitment to exhume the buried waste that currently poses the greatest hazard to the underlying Snake River Aquifer. The importance of DOE=s misguided prioritizing stored waste over the buried waste cannot be over emphasized. Admittedly, DOE did initiate a demonstration project on Pit-9 at the INEEL waste burial ground. The Pit-9 project, like the BNFL incinerator was part of DOE=s venture into privatization of its waste management. DOE=s claims that private corporations could build, operate, and treat radioactive waste more economically than the government=s use of traditional means of contracting.

The Pit-9 contract went to a Lockheed Martin subsidiary that eventually reneged on its contract ostensibly because the waste in Pit-9 turned out to be much more radioactive than previously thought. This oversight of the waste characterization meant that the initial incinerator plans would be inadequate to handle the higher radiation fields. DOE and Lockheed Martin are now locked in heated litigation over the aborted contract.

DOE must utilize the Pit-9 experience to differentiate between appropriate and inappropriate privatization. Purchasing standardized tires for its rolling stock cannot be equated with first-of-a-kind radioactive waste treatment facilities. Critics also warn that state and federal regulators will have less control over a privatized incinerator as opposed to a government owned, contractor operated. Again, the Pit-9 experience shows how major design changes were made and the state regulators were never notified and the changes were not approved by the permitting authorities.

The most credible critics of the INEEL incinerator plan insist that the portion of the waste slated for incineration, currently about 25%, be kept in the existing safe storage buildings. DOE must invest in new research and development to improve current questionable emission control systems. Additionally DOE must focus on exhuming the buried waste whose contaminates continue to migrate to the aquifer. Problems encountered in the Pit-9 fiasco can be overcome if adequate resources and policy commitment are applied to the task.

Another major criticism of DOE is its unwillingness to fully characterize, or identify the hazardous composition of its waste. Recently, radioactive waste shipments from INEEL were suspended to the Waste Isolation Piolet Project (WIPP) in New Mexico because DOE failed to accurately characterize the waste and meet WIPP waste acceptance criteria. This is not a good sign because this deficiency could mean an unnecessary quantity of waste is processed in the INEEL incinerator when it is constructed and it could contain considerably more radioactivity than currently inventoried.

This is the second DOE attempt at INEEL to incinerate mixed transuranic nuclear waste. The first attempt was called the Process Experimental Piolet Plant (PREPP) built in the late 1980's at INEEL at a cost of nearly $100 million. PREPP reportedly went through trial burns required for final operating permits in 1992 but the project was canceled due to design problems. A mixed low-level radioactive/ hazardous waste incinerator at INEEL called the Waste Experimental Reduction Facility (WERF) has been operating since 1984. Finally, in 1997, DOE agreed to conduct a trial burn at WERF, however it failed. The July 1997 test results were unsatisfactory because the minimum destruction and removal efficiency of 99.99% was not achieved on one of the runs. Another WERF trial burn was conducted in 1998, and the state is still reviewing the report and has yet to approve the results.

The incinerator environmental impact statement fails to provide a comprehensive accounting of existing INEEL nuclear facilities that release hazardous and radioactive pollution. The law requires DOE to quantify the cumulative impacts from existing, planned, and projected pollution sources. Existing INEEL facilities include, for example the, Waste Experimental Reduction Facility mixed radioactive waste incinerator and the New Waste Calcine Facility which incinerates high-level liquid wastes currently stored in underground tanks. This high-level waste incinerator experienced two major system failures as recently as July and September which forced evacuation of the plant and surrounding facilities. Eight filter failures over the past decade further undermines public confidence in DOE=s ability to safely operate its waste treatment plants. Projected future waste treatment facilities contaminate releases would include the planned high-level waste vitrification plant mandated by the State/DOE court agreement.

Transuranic elements are the 13 known atomic elements with higher atomic numbers (as determined by the number of protons in the atomic nucleus) than uranium, which has an atomic number of 92. The presence of transuranics in nuclear emissions and nuclear wastes has particular importance for public and worker health because most transuranics emit alpha radiation and many, like plutonium-239, have very long radioactive half-lives.

Transuranic waste, also known as TRU waste includes only waste material that contains transuranic elements with half-lives greater than 20 years, and which are found in concentrations greater than 100 nano curies per gram. The TRU standard prior to 1984 was 10 nano curies per gram. Currently this category of waste between 10 and 100 nano curies per gram is called alpha-low-level. Pursuant to the Federal Court enforced agreement between Idaho and DOE, alpha-low-level waste will continue to be managed as TRU waste. One nano curie is equal to 0.000000001 curie.

The INEEL incinerator deal is moving forward despite justified public concern expressed at state-sponsored hearings on BNFL=s air pollution source permit application and Wyoming residents protest against not being given official hearings on the record. DOE=s public statements attempt to trivialize the nature of this waste by saying that it is mostly gloves, paper, and rags from nuclear facilities around the country. A closer review of the incinerator environmental impact statement shows that less than 25% falls into this innocuous category. It should also be noted that there is no upper radioactivity limit for transuranic waste.

DOE=s failure to fully include radiation exposure from pollution that deposits on the ground around INEEL nuclear plants, only to be resuspended into the air every time a wild fire sweeps over the site. Below is a list of the INEEL site acreage that has burned over the past six years that show the significance of contaminate resuspension by wild fires.

1994........20,000 acres

1995..........8,000 acres

1996........43,000 acres

1998..........9,000 acres

1999.......39,680 acres

In summary, the incinerator component must be deleted because the current state of applied emission control technology has not evolved to the point where radionuclides and/or other hazardous material are adequately filtered out. Priority of resource allocation must be given to exhuming the buried waste, and interning it in safe storage, because it poses the most immediate hazard to the environment and the future of Idahoan=s Snake River soul source aquifer. The super-compaction and grouting components of the treatment should be allowed to move forward. DOE must commit adequate resources to fully characterize all its waste so that the Pit-9 surprise of Ahotter@ waste than anticipated does not occur with this new treatment plant, resulting in a significant increase in radioactivity released to the atmosphere. More precise characterization of the waste will minimize the volume of hazardous waste requiring non-incinerator treatment prior to disposal.