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Letter to EPA Opposing
Remote Handled Waste at WIPP

January 30, 2004

Mr. Ray Lee
U.S. Environmental Protection Agency
1200 Pennsylvania Avenue, NW
Mail Code 6608J
Washington, DC 20460

Dear Mr. Lee:

The six groups signing this letter jointly submit these comments on the Environmental Protection Agency (EPA) proposed "approval of the general framework to characterize RH [remote-handled] waste -- the first step toward emplacement of RH TRU [transuranic waste] in the WIPP repository." EPA letter of December 10, 2003 from Frank Marcinowski to Ines Triay.

These groups strongly object to the "framework," which seems to be an attempt to avoid conducting the required rulemaking. Instead, we strongly request that EPA conduct a rulemaking on RH TRU waste and that EPA not approve the Remote-Handled TRU Waste Characterization Program Implementation Plan, Rev. 0D (RH WCPIP).

EPA must conduct a rulemaking to approve RH TRU waste characterization plans and emplacement of RH waste in WIPP.
The Waste Isolation Pilot Plant Land Withdrawal Act (WIPP Act, Public Law 102-579, as amended) requires that EPA certify that WIPP meets the disposal regulations before waste can be emplaced. Section 7(b)(1). The WIPP Act requires that the EPA certification be based on the Department of Energy (DOE) application. Section 8(d)(1). The EPA decision to approve or disapprove the application must be through rulemaking, pursuant to section 553 of Title 5 of the United States Code. Section 8(d)(2).

The EPA Compliance Criteria provide that the certification rulemaking includes an Advance Notice of Proposed Rulemaking in the Federal Register, availability of the compliance certification application (CCA) in Agency dockets, a 120-day public comment period, a public hearing if requested; then a Notice in the Federal Register of the proposed EPA certification decision, a 120-day comment period on the proposed decision, public hearings in New Mexico, a final rule published in the Federal Register, and EPA response to all comments received. 40 CFR 194.61, 62, and 63.

EPA used those rulemaking procedures for contact-handled (CH) waste from 1996 to 1998 in making its certification decision. 63 Federal Register 27354-27406 (May 18, 1998).

However, as to RH waste, during the certification process DOE stated that it "has not yet asked EPA to certify whether WIPP can safely isolate remote-handled waste." Docket A-93-02, II-I-57 at 2. With its certification decision, EPA concluded:

the CCA did not identify any waste characterization methods for RH-TRU waste, nor did it discuss specifically how DOE will quantify the RH-TRU waste....There was no discussion in the CCA of the applicability of traditional CH-TRU waste characterization methods to RH-TRU waste. Therefore, EPA is not able to certify that DOE has demonstrated that the WIPP will comply with the radioactive waste disposal regulations for any RH-TRU wastes. CARD No. 24, at 24-65.

Approximately seven years after submitting the CCA, DOE has now decided to seek certification for RH wastes at WIPP. EPA must not allow DOE to avoid a rulemaking process for RH wastes because DOE did not have and did not submit required information as part of the certification rulemaking. Instead, EPA must notice a rulemaking for RH wastes to provide for full notice and comment procedures mandated by the WIPP Act and the Compliance Criteria.

The need for a rulemaking on RH waste is further reinforced in the EPA letter of December 10:

Based on our on-going discussion with DOE concerning performance assessment activities related to WIPP recertification, DOE is revising estimates of the RH inventory, and the updated information will be incorporated in the new performance assessment. We believe that this is an appropriate mechanism for evaluating such information and we will review DOE's RH inventory estimates and their impact on the performance assessment as part of our recertification analysis. at 2-3.

Since we have not seen the revised RH inventory, we cannot know how extensive the changes are from the CCA inventory. However, we strongly believe that the RH inventory, characterization methods and requirements, and associated matters should be included in an RH rulemaking.

EPA's decision regarding RH waste should follow issuance of the final rule on the pending revisions to the Compliance Criteria.
On August 9, 2002, EPA published its proposed rule changing portions of the Compliance Criteria (40 CFR 194). 67 Federal Register 51930-51946. Changes were proposed to parts of 40 CFR 194.8 and 194.24, which relate to RH waste and the processes that EPA will use for RH (as well as CH) waste. However, EPA has issued no final rule.

Nonetheless, those two sections are specifically mentioned in the EPA's December 10, 2003 letter to DOE. at 2. EPA should finalize the pending rule before proceeding to consider any DOE request related to RH waste characterization and before proceeding with the RH rulemaking.

The WCPIP is totally inconsistent with the certification decision and must be rejected.
In its WIPP certification decision, EPA stated:

In summary, all waste sent to WIPP will be appropriately and thoroughly characterized. First, the acceptable knowledge provides essential waste content information that later determines the waste categories. The AK process undergoes quality assurance checks to confirm good technical practices and qualified personnel. Then, the measurement techniques (NDA, NDE, VE) confirm the AK data, and further define the content and limits of the waste. 63 Federal Register 27393.

The WCPIP does not incorporate all of those requirements. For example, the quality assurance checks in the certification include 100 percent confirmation of TRU activity using NDA. The RH WCPIP does not include 100 percent confirmation by NDA or any other method. Because of the lack of 100 percent confirmation, the WCPIP even includes a new quality assurance objective -- representativeness -- not included in the certification. WCPIP at 35.

Being inconsistent with the certification, the WCPIP also includes inappropriate and dangerous changes. For example, the lack of 100 percent accurate activity measurements mean that waste that exceeds legal standards could be shipped to WIPP and emplaced. The lack of 100 percent radiography or visual examination to accurately determine cellulose, plastic, and rubber (CPR) means that waste containers could be shipped to WIPP and emplaced with significantly different amounts of CPR than estimated.

Moreover, because of the lack of specificity in the WCPIP and by the proposed approach, each site can use very different AK and confirmation techniques than other sites, far beyond that allowed by the certification for CH wastes. We strongly object to such a lack of consistency, which will undoubtedly lead to inconsistent characterization of RH wastes. In addition, such a different procedure would require reconsideration of the pending changes proposed to 40 CFR 194.8 related to waste characterization requirements. Such differing site requirements, including on a RH waste stream basis, merit much more intensive and frequent inspections and public processes than EPA proposed in the August 9, 2002 rulemaking.

There is no demonstrated reliability of RH TRU waste AK. Thus, dependence on AK without 100% confirmation is not only inconsistent with the certification requirements, it is unjustified and dangerous. Until there is a clear demonstration of the reliability of AK, based on some years of experience at each site, we oppose anything less than 100% confirmation. Thus, the WCPIP is inadequate because it does not require such complete confirmation.

The WCPIP also has significant incompleteness and many inconsistencies. For example, Attachments B and C that describe (inadequately in our view) the Dose-to-Curie (DTC) procedures are explicitly limited to 55-gallon containers. at 88 and 99. But the WCPIP also states that the RH-72B, direct loaded or with 30-gallon drums are approved containers. at 18. Thus, the WCPIP includes no DTC procedures for those additional containers.

The WCPIP inconsistently describes the WIPP Act curie act limit of "23 curies per liter maximum activity level (averaged over the volume of the canister)." Section 7(a)(2). The WCPIP uses that Act's language, but also states that the "tolerable decision error" is "over the volume of the payload container." at 9. Such a procedure is not consistent with the WIPP Act as it could allow a container that exceeds the activity limit to be included in a payload that has a lower activity level container. As EPA is aware, DOE has shipped numerous containers of low-level waste to WIPP, stating that if the entire payload container (ten-drum overpack) has TRU waste it can be shipped to WIPP. EPA cannot allow waste that exceeds clearly stated legal limits to be emplaced at WIPP.

The WIPP Act specifies that WIPP is exclusively for transuranic "radioactive waste materials generated by atomic energy defense activities." Section 2(19). Nonetheless, the WCPIP allows -- even encourages -- co-mingling of defense and non-defense wastes and states that such co-mingled waste "is considered defense waste." at 59. We strongly object to any such procedure since it could encourage sites to combine such wastes to provide a disposal method for the non-defense wastes, contrary to the express requirements of the WIPP Act. In addition, we believe that any waste that has ever been classified as non-defense must be prohibited from WIPP, a requirement that is not included in the WCPIP.

Because of these and other problems, EPA must reject the proposed WCPIP.

To reiterate, EPA must undertake a rulemaking on RH waste, and EPA should reject the WCPIP.

Thank you for your full consideration of, and response to, these comments. Please provide a copy of all subsequent correspondence with DOE on this matter to each of the signing groups.

Citizens for Alternatives to Radioactive Dumping Albuquerque, NM By Mark Doppke	Concerned Citizens for Nuclear Safety Santa Fe, NM By Joni Arends
Creative Commotion: Voices for Social Change Santa Fe, NM By Coila Ash	Loretto Community Santa Fe, NM By Penelope McMullen
Nuclear Watch of New Mexico Santa Fe, NM By Jay Coghlan and Geoff Petrie	Southwest Research and Information Center Albuquerque, NM By Don Hancock

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