Spencer Abraham, Secretary
U.S. Department of Energy
1000 Independence Ave., S.W.
Washington, D.C. 20585

Christine Todd Whitman, Administrator
U.S. Environmental Protection Agency
401 M Street, SW
Washington, DC 20460

Charles C. Clark
Regional Administrator, Region X
U.S. Environmental Protection Agency
1200 Sixth Avenue
Seattle, WA 98101

C. Stephen Allred, Director
Idaho Department of Environmental Quality
1410 N. Hilton
Boise, ID 83706

Beverly A. Cook, Site Manager
U.S. Department of Energy
Idaho Operations Office
850 Energy Drive, MS 1108
Idaho Falls, ID 83401

Dear Sirs/Madams:

In accordance with the notice requirements of 42 U.S.C. §§ 6972 ( c ) and 7604(b), the undersigned parties, Charles Broscious, and David McCoy, attorney and Idaho Falls resident, hereby provide you notice of our intent to commence a civil action under 42 U.S.C. §§ 6972(a) and 7604(a) for operating the facility known as the Process Waste Equipment Evaporator (PEWE) and the PEWE interrelated operational units at the Idaho National Engineering and Environmental Laboratory ("INEEL") in violation of the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. ("RCRA") and the Clean Air Act, 42 U.S.C. § 7601 et seq. ("CAA"), National Environmental Policy Act ("NEPA"), Toxic Substances and Control Act ("TSCA") and other federal statutes enumerated herein. Pursuant to 42 U.S.C. § 6972(c), we reserve the right to sue prior to sixty days for violations of hazardous waste management under RCRA Subchapter III.

A. The PEWE Violates the Resource Recovery and Conservation Act

The PEWE has been operating without a permit under RCRA since the early 1950's and has claimed so-called "interim status" long past the November 8, 1992 date when RCRA interim status expired. This violates both the spirit and the letter of RCRA. RCRA was enacted in order to ensure that hazardous waste management practices are conducted in a manner which protects human health and the environment. 42 U.S.C. § 6902. The goal of the law was to require "that hazardous waste be properly managed in the first instance thereby reducing the need for corrective action at a future date."

By failing to comply with the permit requirements stated in RCRA, the DOE has defeated and nullified the objectives and national policies set forth in RCRA by the impermissible use of interim status for the PEWE. The Idaho Department of Environmental Quality (IDEQ) and Environmental Protection Agency (EPA) have failed to enforce the objectives and policies of RCRA by not requiring permitted operations for the PEWE and failing to force closure of the PEWE and other non-compliant operations. Despite the requirements of 42 U.S.C. § 6925 (a) and ( c ) no final permit has ever been issued or denied for the PEWE as a hazardous waste treatment facility. Violations of RCRA provisions include, but are not limited to, DOE’s failure to provide the information reasonably required to process its application, see 42 U.S.C. § 6925(e)(1)(c), and its failure to include interrelated operations and units in the RCRA Part B application .

The PEWE operates without any RCRA permit and has no interim status under RCRA because interim status for unpermitted facilities expired in 1992. No complete RCRA Part B Application has been submitted by the DOE. The PEWE illegally processes hazardous wastes which are required to be processed by a facility other than an evaporator. A RCRA Part B Permit Application for the PEWE was not submitted by the DOE to the IDEQ until 11/7/00. The PEWE violates air quality emissions requirements, and has not met the environmental review requirements of the National Environmental Policy Act ("NEPA"). The PEW received waste from the Waste Calcining Facility, receives waste from the New Waste Calcining Facility (NWCF), the High-level Liquid Waste Evaporator, the Tank Farm Facility (TFF), the CPP-601 Deep Tanks, and other facilities at the INEEL which also have no RCRA permits. (See Attachment B).

The PEWE, located in CPP-604, processes Calciner (now temporarily closed), High-level Liquid Waste Evaporator off-gas scrub solutions, and other high-level treatment plant wastes. The decontamination/decommissioning process operations continue to generate considerable liquid waste volumes. (See below). RCRA hazardous wastes normally processed by the PEWE evaporator include the following:

1. Laboratory wastes produced by analyses of ICPP discharge effluent (including service waste and stack monitor samples and process samples.

2. Liquid wastes from the atmospheric protection system, the Calciner, the High-level Liquid Waste Evaporator, and other waste processing operations which are mixed high-level and highly radioactively contaminated.

3. Rainwater ingressing and tank leaks that collect in the high-level tank farm vaults and vault sumps.

                            4. Decontamination solutions.

                            5. Process solutions.

                            6. Liquid mixed hazardous and radioactive waste from other INEEL operations.

                            7. HEPA Filter and Debris liquid waste treatment liquid effluent.

                            8. Spent reactor fuel water storage pool filter back flush waste liquids.

                            9. Off-gas from the High-level Tank Farm

                            10. Radioactive Liquid Waste Management System

The two PEW evaporators, EVAP-WL-129 & WL-161 are thermal treatment units. EVAP-WL-129 includes the evaporator tank VES-WL-129 plus heat exchanger HE-WL-307, and condenser HE-WL-308. EVAP-WL-161 includes the evaporator tank VES-WL-161 plus heat exchanger HE-WL-300, and condenser HE-WL-301. These PEW thermal treatment units accept liquid waste from the feed tanks and subject it to high temperatures (via steam heat exchanger) which concentrates the liquid waste by means of evaporation. Three RCRA waste streams flow out of the PEWE: 1. vaporized off-gas overheads, 2. non-vaporized condensed overheads, and 3. concentrated bottoms.

The PEWE overhead stream (vapor) is passed through a condenser which yields a condensate and non-condensable off-gas. The vaporized off-gas goes through the HEPA filters and out the Main Stack (CPP-708). The overhead condensate is classified as a RCRA mixed low-level waste with 128 individual hazardous waste codes, and is recycled back to the evaporators or sent to the LET&D to remove the nitric acid constituent.

The concentrated bottoms are managed as high-level mixed waste and sent to the Tank Farm for eventual calcination, or other final treatment. (See Attachment D-- PEWE/LET&D process flow chart).

The PEWE has not received proper analysis as to its air emissions as a result of the wide variation of unanalyzed liquid waste processed by the PEWE. No mass balance analysis has been presented to the public so that it can be determined how many gallons of liquid waste are vaporized by the PEWE and go out the stack. Estimated rates of the volume of liquid waste processed by the PEWE vary considerably.

The HLW/EIS rates the PEWE partial throughput of Type II waste at 105,000 gallons/year with the volume reduction to 5,000 gallons [at a rate of 400 gal/hr or 9,600 gal/day]. (C.6-37) That is a net volume reduction ratio of 21:1. The Fact Sheet for the Process Equipment Waste Evaporator presented at a recent DOE public meeting in Idaho Falls (p. 2) states that "The PEWE system is capable of evaporating up to 24,000 gallons a day of mixed wastes..." This would be a potential annualized amount of 8,760,000 gallons. Applying the HLW/EIS ratio of 21:1 to the PEWE Fact Sheet 24,000 gal/day there is a potential for 8,342,000 gallons/year of mixed volatile organic chemicals and semi-volatile compounds and radionuclides going out the CPP Main Stack that the HEPA particulate filters will not block. It is uncertain how much of the effluent release fractions to the Main Stack are from the PEWE and how much from the LET&D but in either case only HEPA filters are used. (See Attachment D).

B. The PEWE operates illegally and cannot be permitted because it is accepts certain hazardous wastes which are required under federal law to be treated by other types of processes.

Of the 128 listed hazardous waste constituents in the PEWE waste, no less than 37 require treatment with carbon absorption, chemical oxidation, wet air oxidation, or combustion in order to meet EPA Treatment Standards. (40 CFR 268.40). (See attached list of 37 hazardous waste constituents in Appendix (A). The PEWE does not have the technical capacity to legally treat these wastes. These wastes are inherent in the waste feed to the PEWE and no treatment is available to remove, treat, monitor and sample for the presence of these hazardous waste constituents prior to processing by the PEWE. The single exception is the removal of D002 corrosive waste in which subsequent treatment in the LET&D facility extracts the nitric acid component.

The other 91 listed hazardous constituents in the PEWE condensate waste stream cannot exceed specified concentration levels listed in 40 CFR 268.40 and the Universal Treatment Standards in 268.48 without receiving appropriate treatment. Internal DOE documents indicate that DOE intends to leave the high-level Tank Farm heels permanently in place which means the PEWE is practically speaking the final treatment.

The Federal District Court for New Mexico ruled in 1997 in Concerned Citizens for Nuclear Safety v. U.S. DOE (Civ. No.94-1039) that DOE could not be trusted to self monitor, so the Court imposed an independent "comprehensive technical auditing" process. The Consent Decree states that: " The purpose of the comprehensive independent technical audits is to verify whether LANL [Los Alamos National Laboratory] is in full compliance with the Clean Air Act radionuclide NESHAP, 40 CFR 61.90-61.97 Subpart H, during the term of the decree." DOE was required to provide the $700,000 costs for the independent audits.

Reports by auditors at the INEEL are strongly suggestive that independent sampling of PEWE and service wastes is essential due to the INEEL sampling/monitoring violations enumerated in a 1996 False Claims suit. Environmental Compliance Auditors employed by INEEL contractors allege extensive violations of environmental statutes in Mock/Lebow v. Lockheed et.al. False Claims suit.[No. CIV 96-0061-E-BLW].

The following internal INEEL "Air Legacy Issues" report gained by EDI through a Freedom of Information Act request acknowledges turning off stack air monitors.

"For much of the last 3 years, INEL has chosen to not operate the ICPP Main Stack Iodine-129 monitor based on a "literal" reading of the NESHAP’s regulations. (NESHAPs requires continuous monitoring of those constituents which represent 10% or more of the potential INEL dose.) I-129 from the ICPP Main Stack represents the single largest actual dose contributor at the INEL (at times, 50% of the site dose).It is our belief (and that of ORNL personnel) that the current monitoring policy for I-129 on the CPP Main Stack is not consistent with the intent of the regulations and represents a significant liability. (Even if defendable in court, it is difficult to explain to the public why it is a good idea to "not operate an already installed monitor" for the largest dose contributor on the INEL.) (Note that the I-129 monitor is now on-line for the startup of the High Level Waste Evaporator, but future intent is to take it off-line again.) (INEL Notegram, July 25, 1996 to C.L. Tellez from M.E. Feldman).

2. The LET&D Is an Unpermitted, Illegally Operating Facility physically connected to the PEWE.

The LET&D unit receives the PEWE overhead condensate, and consists of two evaporators, also referred to as fractionators (FRAC-WLL-10 and FRAC-WLK-171). These evaporators/fractionators treat (T-04) the PEWE condensate primarily to remove nitric acid.

DOE states (1998 NESHAP pg.8 DOE/ID-10342(98) ) that the LET&D acid portion of bottoms are used at the NWCF or stored in the Tank Farm and the remaining gaseous overheads are discharged to the Main Stack after passing through HEPA filters.

The LET&D facility has a design capacity of 1100 gal/hr. The PEWE and LET&D off-gas system also only uses HEPA filters prior to going to the main stack which means all volatilized hazardous and radioactive material escape to the atmosphere. HEPA filters only remove a small size range of particulate and do not remove any contaminate in vapor phase.

A large proportion of the PEWE/LET&D vaporized overheads are volatile compounds that simply pass right through the HEPA filters and out the Main Stack. The PEWE and LET&D operations are physically connected, and should be legally required to be permitted as a whole along with inffluent and effluent tanks. Neither the LET&D nor the PEWE or related installations (described below) are legally permitted under RCRA. (See IDEQ March 2-3/98 Quarterly Meetings 1998).

The PEWE waste can originate from various points within the INTEC (including the high-level Tank Farm) and also waste water from other INEEL facilities. CPP-604 PEW feed/storage and treatment tanks (VES-WL-132, 102, and 133) have a 43,800 gallon/day capacity. According to the INEEL Hazardous Waste Management Act Work Plan:

"CPP-601 Tanks consist of four units (VES-WG-100, and 101, and VES-WH-100 and 101 used for storage and treatment (S02 and T01). These tanks receive waste primarily from laboratories and process operations in the CPP-601, CPP-602, and CPP-684. The waste is sent to the PEW Feed/Storage and Treatment Tanks (VES-WL-132, 102, and 133) prior to evaporation in the PEW evaporators system. CPP-604 PEW Condensate/Effluent Storage and Treatment Tanks consists of three storage (S02) and treatment (T01) tanks (VES-WL-106, VES-WL-107, and VES-WL-163). These tanks receive condensate from the PEW Evaporator prior to going to the LET&D Storage Tanks and eventually the LET&D Evaporators." (INEEL Hazardous Waste Management Act Work Plan 6/6/2000 pp. A3&4)

It is important to note that the above quotes apply the term "treatment" to these tanks thereby acknowledging that the tanks cannot be designated as ancillary which designation DOE is currently attempting to use. Many of the PEWE tanks and service pipe lines are old and do not meet RCRA standards both in terms of containment but also daily inspection accessability requirements. DOE is attempting to avoid RCRA permitting requirements by classifying tanks and service pipe lines as ancillary equipment and thus exempt. (INEEL Hazardous Waste Management Act Work Plan 6/6/2000 page A3&4).

3. DOE is arbitrarily shifting operational units to avoid compliance.

The total number of waste tanks associated with the PEWE is over fifty, many of which date back to 1953. (See Attachment B, PEWE Related Tank List). The PEWE tanks have been the subject of Notices of Violations since at least 1996 and recently 8/2/99 for failure to monitor tank leak sumps. (NOV-8/2/99). The fact (established by IDEQ) that the PEWE tanks can not be inspected or monitored because they are so highly radioactive and thus preclude anyone going in, adds to the risk that a criticality accident could occur. An internal INEEL report states:

"The PEWE collection tanks do not empty from the bottom and in fact a minimum level is maintained in the tanks to avoid the possibility of a nuclear criticality occurring. This is required by the DOE Orders (and corresponding facility technical specifications ) implementing the Atomic Energy Act. By maintaining an acidic heel in each tank, uranium material is sufficiently diluted so that a nuclear fission chain reaction will not commence or sustain itself."(Letter to B.R. Bowhan, DOE/ID 4/28/92 from R.S. Rothman, WINCO)(PTG-6-92 pg. 4).

Suspended transuranic elements such as plutonium extracted by the Atmospheric Protection System (APS), and other waste feed sources, and sent to the PEWE as suspended solids are further concentrated in the PEWE evaporator bottoms. Therefore the PEWE bottoms tanks are a criticality hazard because of the confined geometry of the tanks. The HLW/EIS also lists the PEWE tank as a criticality hazard [DOE/EIS-0287D, 5-206).

The PEWE is an old and complex system located in at least three separate buildings, and DOE has yet to document that all the components (including the connecting pipes and off-gas emission control system) are compliant with 40 CFR 265.193. The building in which the PEWE is located was built in the 1950s. Upon information and belief, the building has been so bombarded with heat and radiation that the concrete in the building is in a state of disintegration and chunks of concrete break off. The building cannot qualify as a containment building. Despite the deteriorating condition of the PEWE facility, the DOE HLW/EIS envisions the continued use of the PEWE facility through the year 2035 as a high level liquid waste treatment facility. (DOE/EIS-0278D pg. C.6-37) It is doubtful that the engineered design life for the PEWE facility was originally envisioned for an eighty-five year operational period (fifty years to date plus an additional 35 years in the future).

The LET&D is an integral functioning part of PEWE operations. The LET&D has no RCRA permit and lacks interim status. The LET&D is not included in the Part B Application for the PEWE. Assuming the PEWE were RCRA permitted (which it is not) it would be a violation of RCRA for the PEWE to send RCRA waste to the LET&D as a non-compliant RCRA facility. A similar lack of permit status and the same results exist for the tank farm which receives wastes from the PEWE and the LET&D.

The LET&D operates without a RCRA permit. The LET&D lacked the contractual commitments to qualify for legal existence prior to the statutory cut-off date necessary for a facility to receive interim status under RCRA. The LET&D therefore has lacked interim status and operated without a RCRA permit. The Tank Farm operates without RCRA permits. The PEWE, the LET&D and the Tank Farm were identified by the DOE in 1996 as "unpermittable." (Attachment E).

The LET&D has evaporators located in CPP-1618. Evaporators are high temperature thermal treatment devices. (See discussion below). As of 1/30/99, no request for interim status had been submitted for the LET&D evaporators. (INEEL RCRA Permitting Point of Contact (POC) Matrix, p. 2.)

The DOE is attempting to define the LET&D as a "reclamation" unit. The LET&D is not a reclamation unit which recycles wastes but functions to remove condensates from the PEWE and send them to the tank farm.

The LET&D was constructed because regulators objected to the high-levels of hazardous and radioactive waste going directly from the PEWE to the percolation ponds. DOE built the LET&D to reduce the nitric acid contaminant loading on the percolation ponds. At the time of construction of the LET&D, the DOE had not resolved issues with respect to Land Disposal Restrictions (LDR) which were in effect. Wastes subject to LDR prohibitions were generated by the LET&D construction and start up activities. The activities included installation of mixers in the PEW condensate collection tanks, operation and cold testing, wash down of the main stack and associated sampling, and related construction, maintenance and support activities. DOE went ahead with the LET&D Acid Recycle Project which was also in conflict with Land Disposal Restrictions. (7/13/92 LDR Interpretation Request (AM/SES-ESD-92-260) and 7/2092 Letter of Orville Green Re: Request for a DEQ Concurrence on Operation of LET&D).

The DOE and IDEQ have defined the PEWE as a tank treatment unit (see EPA form 8700-23 in RCRA permit application) because the agencies know the PEWE cannot comply and fulfill RCRA permit requirements as a thermal treatment facility. The IDEQ and the DOE are lowering permit requirements as a way to keep the PEWE operating despite its illegality.

The use of high temperature heat treatment devices is by legal definition thermal treatment. (40 CFR 261.10). Under the definition provided by 40 CFR § 261.10 the PEWE is a thermal waste treatment unit because the PEWE is using evaporators to treat hazardous and high-level radioactive waste using elevated temperatures as the primary means to change the chemical, physical, or biological character or composition of the hazardous waste.

Without allowing notice or opportunity for any public comment on the legal "definition" to be applied to the PEWE, in 2000 the IDEQ agreed with the DOE in an unnoticed, secret meeting to define the PEWE as "Tank Treatment." The DOE and IDEQ represented publicly, however, that the PEWE was to be in the category of a T04 facility.. The T04 category is not correct definition for the PEWE.

The process codes T01/T04 do not exist nor correlate with the process codes required to be utilized under 40 CFR 264 Appendix I. The EPA Process Code utilized (on EPA Form 8700-23) the code of T01 for the PEWE and T04 for the LET&D. T01 process code for the PEWE indicates that the process utilized by the PEWE would be tank treatment, which is as preposterous as it is clearly erroneous given that DOE repeatedly stated in the 9/29/99 "Determination Report for Tanks in Voluntary Consent Order Action Plan Site-Tank-004" that the PEWE is a thermal treatment unit. The PEWE should instead be classified under Evaporator (40 CFR § 1202 Appendix as T57 or as X03 (Thermal Unit under Subpart X).

40 CFR § 265 Subpart P should instead be applied to the PEWE since Subpart P covers facilities that thermally treat hazardous wastes in devices other than enclosed devices using flame controlled combustion. Since the PEWE releases solid or hazardous wastes into the atmosphere, the PEWE is not a totally enclosed treatment unit and meets the definition of a thermal treatment device.

By applying the incorrect definition of tank treatment unit to the PEWE, the DOE and IDEQ are attempting to circumvent the stricter permit requirements pertaining to the PEWE as a thermal treatment unit necessary to the protection of the public health and safety. Once again IDEQ and DOE are lowering the legally applicable RCRA standards in order to facilitate RCRA permitting. Improper use of process designation on the EPA process codes and design capacities form constitutes an application which is false, and does not comply with the RCRA requirements for furnishing information reasonably required to process the PEWE application.

With respect to the PEWE, IDEQ and the DOE are continuing a prior history of defining facilities at a lower standard of protection for the public health and safety to avoid more stringent RCRA permitting requirements. For example, the NWCF Calciner was defined as a "thermal treatment unit" instead of as an "incinerator" to avoid the more stringent RCRA requirements of 40 CFR 264 Subpart O necessary to permit and operate the Calciner as an incinerator.

Additionally, IDEQ sacrificed public health and safety by allowing the Calciner to process inorganic waste in violation of 40 CFR § 268.3 which prohibits combustion of the hazardous waste codes listed in Appendix XI of that part. Those codes include, but are not limited to prohibition of combustion of waste that resulted in emissions from the Calciner of toxic wastes such as: arsenic, barium, beryllium, cadmium, chromium, lead and mercury.

The "F listed" wastes include groups of spent halogenated solvents, and non-halogenated solvents for which EPA Universal Treatment Standards require dedicated combustion technology as the only approved treatment. F-listed wastes generated by laboratories and other INEEL sources are thermally treated in the PEWE. Treatment of F-listed wastes requires that the PEWE comply with the standards and procedures in 40 CFR 265.383. (40 CFR 265.1 (d)(v) ).

DOE must demonstrate compliance with 40 CFR 264 Subpart O when it treats F-listed wastes. 40 CFR § 265.383 requires certification from the Assistant Administrator for Solid Waste and Emergency Response that the performance standards of Subpart O of Part 264 can be met containing the information required in Secs. 270.19 and 270.62. Trial burns are not planned and have never been conducted under restricted conditions, in violation of 40 C.F.R. § 270.62.

DOE’s RCRA Permit revision #19 (4/99) lists the PEWE waste codes that include 128 individual hazardous waste processed by the PEWE (See Attachment A). This list of waste codes also identifies five "F code" waste solvents in the PEWE waste stream. The "F list" and the other listed waste codes processed by the PEWE do not meet the Universal Treatment Standards in 40 CFR § 268.40.

Evaporators are the worst possible "treatment" for F-listed wastes because the volatile organic compounds (VOC) and radionuclides go out the stack untreated. That is why EPA requires dedicated combustion units or carbon absorption, chemical oxidation or wet air oxidation to destroy the VOC’s. Appropriate off-gas scrubbers/resin filters which are not utilized by PEWE operations, are necessary to remove the products of incomplete combustion (PIC). The HEPA filters used for PEWE off-gases only remove the larger particulate material in the off-gas.

2. PEWE RCRA Part B Application states that (Section D, p. 5 &25):

"The temperature of the evaporator liquid is controlled below 110 degrees Celsius. At higher temperatures (i.e., 125 degrees Celsius) it is possible to form unstable chemical compounds." (P. 5)

"To prevent the possibility of organic ignitable vapors in the PEWE, the PEWE Waste Acceptance Criteria (WAC) establishes an ignitability limit for wastes that are discharged to the PEWE system. The main source of organic was fuel reprocessing in the CPP-601. Fuel reprocessing is no longer performed at the INTEC." (P. 25).

These statements are an admission that sufficient concentrations of volatile organic compounds exist in the PEWE throughput, which poses a significant hazard of flash point/explosion if the PEWE temperatures exceed the threshold temperature of 110 degrees Celsius. The fact that the PEWE is processing high-level waste with high-levels of volatile organic compounds (VOC) from previous reactor fuel reprocessing, directly contradicts DOE’s above claim that VOCs are no longer a hazard because "fuel reprocessing is no longer performed." Moreover, the DOE plans to restart spent nuclear fuel reprocessing to extract plutonium for the NASA program in addition to plans to reprocess for commercial power reactors. DOE has an obligation to include foreseeable future PEWE throughput into the Permit. See discussion above regarding improper treatment of waste codes by the PEWE.)

The 9/29/94 Notegram of T.L. Carlson regarding ICPP Radioactive Liquid Waste Management (TLC-07-94) by Westinghouse Idaho Nuclear Company (WINCO) acknowledged that the waste feed to both the PEWE and LET&D exceeded regulatory limits. This acknowledgment conflicted sharply with the 2/15/94 submission to the EPA of the 1993 WINCO President W. C. Moffit Hazardous Waste Report assertion that information about operations at INEEL was "true, accurate and complete."

The Carlson Notegram stated:

"Under ‘Standards: Process Vents’ found in Subpart AA of RCRA Part 265 (265.1032), interim status [Treatment Storage Disposal] TSD facilities with process vents associated with ‘distillation, fractionation, thin-film evaporation, or...air stripping operations managing hazardous wastes with organic concentrations of at least 10 ppmw’ are required to reduce organic emission to 3 lb/hr and 3.1 tons/yr, or by the 95% using a control device. Based on historical data and recent analytical results for PEW evaporator overhead condensate (LET&D) feed, it appears that the feed to both the PEW evaporator and the LET&D fractionator exceeds 10 ppmw organic (measured as total organic carbon, or TOC, per EPA)." [pg 5 - 6]. (Emphasis supplied).

"When waste was being discharged to the radioactive liquid waste management system....characteristics of the waste were not verified.... and analytical results should be obtained demonstrating that the waste meets the associated waste acceptance criteria (it may or may not be the PEW-CRM chloride limit..." [pg2]

"ICPP receives (at CPP-1619) bulk shipments of wastes from INEL facilities including TRA and PBF for treatment in the PEW system." "Although the [Waste Management Authority] WMA approves these shipments, little knowledge, if any is available on how representative the samples are of the waste present in the tanks." [pg 3-4]

"TOC [total organic carbon] analysis of these [PEW & LET&D] samples, in combination with process flow data for the units at the time the samples are taken, should allow us to calculate air emissions by mass balance. Depending on our findings regarding organic emissions from the PEW evaporator and LET&D fractionator, further actions may be necessary to demonstrate compliance with Subpart AA." [pg. 6]

Although the Carlson Notegram discussed steps to be attempted to "develop a rough estimate of the emissions based on chemical usage at ICPP" the steps were not taken. In a "Memorandum regarding 12/20/94 Meeting" (p. 6) between DOE and DEQ, Mr. Birrer (DOE) "stated DOE will submit the AA/BB packages for the Calciner, PEW System, and the LET&D for DEQ-OPB review during the permitting process." A 1/31/97 Lockheed Inter-department Communications indicated that three years later there still were not procedures in place to track waste materials. The WINCO pilot project for an electronic data collection system to set up tracking of new waste generated by the NWCF, which includes the PEWE to resolve this issue was not continued by Lockheed Martin International Corp. (LMITCO). [pg 1]

The fact that as of 1998 the compliance with Subpart AA did not exist is shown by the March 2-3, 1998 Quarterly Meeting Minutes which stated:

"A concern regarding the ICPP was discussed regarding the volatile and semi-volatile properties in the liquid being processed and in the off-gas as a result of the process. The off-gas and liquids of the thermal treatment units (PEWE, LET&D, NWCF and NWCF ETS) will be sampled routinely." (Emphasis supplied).

In other words, no sampling had begun by 1998.

The IDEQ and the DOE are again using the stratagem of a sham application submittal to create the appearance of legitimate waste processing at the PEWE despite the knowledge of both agencies that PEWE: 1.) has no interim status; 2.) no permit; 3.) the wastes being processed by the PEWE have not and possibly cannot be adequately characterized; 4.) emissions are inadequately monitored; 5.) that the PEWE cannot comply with RCRA thermal treatment standards; 6.) processes inappropriate hazardous wastes; and 7.) the public cannot be protected. No good faith Part B Application for the PEWE has been submitted or shown to the public for its consideration under the RCRA Expanded Public Participation Rule.

The IDEQ and DOE have previously proffered Part B applications to provide the apparent legitimacy of a pending application to keep other illegal facilities at INEEL operational. Between 1980 and 2000, twenty-four RCRA Part A & B revisions have been submitted for INEEL. [INEEL HWMA/RCRA Part A Permit Application, January 2000] The same stratagem was used to keep two unpermitted facilities operating, the Waste Experimental Reduction Facility (WERF) and the New Waste Calciner Facility (NWCF). Both DOE and IDEQ knew years prior to the submission of Part B Applications for the WERF and the NWCF, that neither facility could fulfill RCRA Part B permit requirements, especially the waste characterization and trial burn requirements. The WERF and NWCF Part B applications were submitted as a strategy to continue operations at these two facilities which had both been designated as "unpermittable" units in 1996 and kept on a supposed "interim" operation status. "Interim status" operation of hazardous waste facilities expired under RCRA in 1992.

F. The PEWE Part B Application is a piecemeal submittal to IDEQ which neither contains sufficient information to allow public comment nor for a regulatory agency such as IDEQ to make a decision whether to approve or deny the permit. DOE is required to submit a complete RCRA application for consideration.

The PEWE RCRA Part B pre-application notice and meeting denied the public information which the DOE had available. The DOE had already presented Sections D and F of the application to the IDEQ. Despite public requests, DOE refused to provide the public with copies of these parts of the application and failed to provide any reasonably adequate descriptions of the Part B application to the public. The public was informed at the pre-application meeting that a Freedom Of Information Act request would have to be submitted to obtain Sections D and F. The public could not know what the DOE planned with respect to the PEWE and thus the public was denied reasonable opportunity for comment. The DOE knew well in advance of the pre-application meeting what its plans for the PEWE were and secretly met with the IDEQ to discuss those plans and incorrectly define the PEWE. DOE submits less than complete applications to the IDEQ instead of complete applications. The IDEQ fails to require a repository for the information and the public cannot keep abreast of the issues involved in the permit application.

Attorney David McCoy was informed on 5/10/01 by a DOE representative that the DOE intends to add the High Level Liquid Waste Evaporator (HLLWE) to the PEWE Part B Application after the PEWE Part B Application is submitted in its entirety in July 2001. The DOE presented no such information to the public in its preapplication notice or public meeting for the PEWE Part B. The addition of the HLLWE to the Part B Application would create a substantially different permit application. The DOE is continuing to use piecemeal submittals to avoid public scrutiny of what is actually planned for hazardous waste treatment and disposal in Idaho. Environmental justice concerns of the RCRA expanded Public Participation Rule are knowingly flouted by DOE. The public is entitled to full disclosure of DOE’s plans with respect to the PEWE and related facilities.

G. Many Tanks and Vessels integrally associated with the PEWE are not compliant with RCRA permit requirements, are structurally inadequate, lack secondary containment, exceed design life, and have been inappropriately omitted from the PEWE RCRA Part B Application.

Attachment B lists what is currently publicly known about the tanks and vessels related to the PEWE system. Of the more than fifty-four currently known PEWE feed and effluent tanks:

Twenty-eight are not identified and/or characterized in the RCRA Part B Application.

All fifty-four tanks lack fully qualified RCRA secondary containment.

Forty tanks have no known structural certification, that includes static, seismic, and caustic resistance.

Some of the more ludicrous claims DOE makes for RCRA secondary containment are forty-year-old epoxy sealants, mere drip pans, high pressure waste line "troughs" to qualify for stringent RCRA containment criteria.

An unknown but significant number of tanks have already exceeded their design life.

Numerous tanks have been in service since the early 1950's, far exceeding their design life. Yet DOE wants to continue this system indefinitely without requisite analysis of the individual components physical status.

The above ongoing violations represent not only a willingness on the part of DOE and its regulatory overseers EPA and IDEQ to default on their statutory obligations, but also it presents a serious and immediate environmental risk that our environmental laws are intended to avoid.

NEPA requires federal agencies to evaluate the environmental impacts of all major federal actions significantly affecting the quality of the human environment. (42 U.S.C. § 4332 (2)(c) ). Continuing PEWE operations along with the other non-compliant operations in the overall high-level waste (HLW) program is, in addition to violation of RCRA, also a violation of the National Environmental Policy Act (NEPA).

A. The public has not been provided any environmental analysis for the PEWE and its operations by either the 1999 High Level Waste/ Environmental Impact Statement (HLW/EIS), the 1994 Site Wide INEEL Environmental Restoration and Waste Management Programmatic EIS, or by any environmental analysis under RCRA.

The High Level Waste/ Environmental Impact Statement offers only a few dozen words spread over four different sections on the PEW’s evaporators. No listing for the PEWE even exists in the HLW/EIS index. A fundamental flaw in the HLW/EIS is failure to provide the substantive analysis of all the interrelated systems for the PEWE and their cumulative effect on the environment.

The "functional equivalence test" requirement for RCRA to meet the substantive requirement in NEPA also has not been met. There is no holistic analysis of the cumulative impacts of the PEWE and joint facilities operation, because the IDEQ and DOE’s approach to permitting the PEWE is to separate it out as a facility unrelated to the facilities whose wastes the PEWE processes. The PEWE operations are physically connected via waste transfer pipes and ducts to other operations and there must be an analysis of the connected operations in order to determine whether the joint effects of the connected operations may be significant.

B. No analysis of the cumulative environmental and public health impacts of all ongoing thermal treatments operations has ever been performed at the INEEL. (RCRA Quarterly Permitting Meeting Minutes, 11/16/95, p. 4).

The connected action analysis is required even if the environmental effects of the proposed action are not significant. (We argue the effects are significant). No consideration of appropriate alternatives to exhausting massive amounts of toxic chemicals into the atmosphere from PEWE operations and other thermal treatment operations at INEEL has been considered. Nor have alternatives been considered to the dumping of massive amounts of toxic liquid wastes into the sole source aquifer via percolation ponds and injection wells been considered. The HLW/EIS does not contemplate alternatives or cumulative effects from the proposed PEWE operations.

IDEQ and DOE fail to acknowledge that PEWE operations are physically connected by pipes, ducts, and tanks, and therefore all operations must meet regulatory requirements and also must be permitted collectively. The failure of IDEQ and DOE to include non-RCRA units in the PEWE Part B Application demands that a closure plan must be submitted for the non-RCRA approved units and immediately implemented to assure the public that the old "unpermittable" units will not be surreptitiously used.

Since its operation, the PEWE and related facilities have experienced numerous accidents and safety failures and have posed serious threats to human health and safety. (See Attachment C for an outline of these incidents).

C. The NEPA process additionally obligates the DOE to demonstrate full compliance with all policies, regulations and public laws which DOE has failed to provide for the PEWE. (42 U.S.C. § 4332).

The PEWE is also in violation of the interim status regulations which are intended to protect human health and the environment pending the approval or denial of an application under RCRA. (40 C.F.R. § 264). For example, the DOE admitted in its January 2000 Emissions Inventory that it is unable to characterize the offgas and process solid and liquid streams as required under 40 C.F.R. §§ 264, and 265. DOE is not performing continuous real time monitoring at the PEWE. DOE is not monitoring for particulate emissions, including alpha emitters such as plutonium and volatile organic compounds from PEWE emissions. Monitors have been turned off or are destroyed by the toxic and corrosive stack gasses. The wastes from the feed tanks to the PEWE have not been sufficiently characterized. (Attachment to 9/29/94 T. L. Carson ICPP Radioactive Liquid Waste Management. See also, March 2 and 3, 1998 Quarterly Meeting Minutes, p. 2 & 3-- unresolved issues of "F-listed wastes, volatile and semi-volatile compounds in the liquid waste processed in the PEWE and LET&D, and unresolved characterization of wastes in tank farm facility.)

There is failure to comply with 40 CFR 264 Subpart AA (Air Emission Standards for Process Vents), BB (Air Emission Standards for Equipment Leaks), and CC (Air Emission Standards for Tanks, Surface impoundments, and Container).

There is failure to comply with NESHAP Subpart A, C, E, H, I, U

There is failure to comply with Trial burn requirements (40 CFR 264 Subpart O).

Trial burn requirements exist where F-listed wastes are processed. (See F-listed waste sections supra).

There is failure to comply with Best Demonstrated Available Technology is vitrification of high level radioactive wastes. (63 FR 28575).

An environmental risk assessment sufficient to meet NEPA standards is required.