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Voices from the Earth

Jessie Hill Roberson
EM-1
U.S. Department of Energy
1000 Independence Ave., SW
Washington, DC 20585

RE: West Valley Demonstration Project Final Waste Management
Environmental Impact Statement, December 2003, 69
Federal Register 2584 (January 16, 2004)

Dear Ms. Roberson:

Southwest Research and Information Center (SRIC) has been involved for more than 25 years with issues regarding the Waste Isolation Pilot Plant (WIPP). SRIC is very familiar with the legal and regulatory requirements for WIPP, as well as the National Environmental Policy Act (NEPA) documents related to WIPP.

Pursuant to 40 CFR 1503.1(4))(b), SRIC submits these comments on the West Valley Final Environmental Impact Statement (FEIS), and requests that DOE specifically respond to them in any supplemental EIS, which SRIC believes should be issued, or any Record of Decision (ROD).

SRIC strongly objects to the portions of the West Valley Final EIS related to transuranic (TRU) waste, especially including Preferred Alternative A and Alternative B. Neither of those two alternatives is consistent with legal and regulatory requirements, and thus, neither should be considered reasonable alternatives in the West Valley FEIS or any other NEPA document. Thus, in any ROD DOE should specify that, as to transuranic waste, neither of those alternatives will be implemented.

Instead, SRIC believes that DOE must supplement the West Valley FEIS to describe the legal and regulatory requirements for WIPP and that West Valley TRU waste is prohibited at WIPP, since the FEIS does not describe those requirements. Thus, DOE should analyze the reasonable alternatives for storage and disposal of West Valley TRU waste that do not include WIPP. Such an analysis was not done in the West Valley FEIS, which is a totally inadequate NEPA document as regards those TRU wastes.

West Valley TRU waste is prohibited from storage or disposal at WIPP.
The WIPP Land Withdrawal Act (PL 102-579, as amended) specifies that WIPP is exclusively for TRU waste "generated by atomic energy defense activities." Section 2(19). West Valley TRU waste is commercial, non-defense TRU waste that is excluded from WIPP. In 1996, at DOE's suggestion, legislation was proposed to delete that WIPP Act prohibition on commercial waste, but that provision was not passed. See 142 Congressional Record, S. 6589 (June 20, 1996). Thus, DOE has known since at least 1992 that West Valley TRU waste was prohibited at WIPP.

Nonetheless, the West Valley FEIS states that the preferred alternative A includes: "TRU waste shipments to WIPP could occur within the next 10 years if the TRU waste is determined to meet all requirements for disposal in this repository; however, if some or all of WVDP's TRU waste does not meet these requirements, the Department would need to explore other alternatives for disposal of this waste." at 2-13.

West Valley FEIS alternative B is that "TRU waste would be shipped to Hanford, INEEL, ORNL, or SRS for interim storage, and then to WIPP for disposal. TRU waste could also be shipped to WIPP for interim storage prior to disposal there." at 2-16.

The West Valley FEIS is totally inadequate because it never describes "all requirements for disposal" at WIPP. Thus, the public and decision makers have no way of evaluating what the requirements are and whether they can be met.

Further, it is irresponsible and contrary to law for DOE to not fully explore alternative disposal sites for transuranic waste. DOE has had several obvious opportunities to comply with NEPA and prepare an EIS on such disposal sites over the past decade. Clearly, it is past time for such alternatives to be explored and for an alternative disposal site to be chosen. DOE cannot proceed with a ROD related to the West Valley FEIS that makes decisions on storage or disposal of TRU waste as included in alternatives A and B.

The EPA certification for WIPP does not include any West Valley TRU waste.
On May 18, 1998, the Environmental Protection Agency (EPA) issued its certification of WIPP. The TRU waste from West Valley was not included in the Transuranic Waste Baseline Inventory Report (Revision 3), June 1996, which provided the inventory information for the performance assessment used to certify that WIPP meets EPA disposal requirements, pursuant to the WIPP Act, Section 8(d).

Thus, the EPA certification does not allow for West Valley TRU waste to be disposed at WIPP.

The State of New Mexico operating permit does not include any West Valley TRU waste.
On October 27, 1999, the New Mexico Environment Department (NMED) issued the operating permit for WIPP under the New Mexico Hazardous Waste Act. TRU waste from West Valley was not included in the permit application, nor in the permit issued.

Thus, the existing operating permit does not allow for West Valley TRU waste to be stored or disposed at WIPP.

The West Valley FEIS volumes of TRU waste are inconsistent with previous estimates.
The West Valley FEIS states that the amount of Contact-handled (CH) TRU waste is 1,130 cubic meters and Remote-handled (RH) TRU waste is 250 cubic meters. West Valley FEIS at 2-15. In the WIPP Supplement Environmental Impact Statement (SEIS-II, 1997), the West Valley CH-TRU waste is 190 cubic meters and RH-TRU waste is 1,700 cubic meters, and all of that waste is commercial/nondefense waste. WIPP SEIS-II at 2-7.

The vast volume disparities, in addition to showing the inadequacy of DOE's NEPA documents, also shows the inadequate waste characterization and inventory information. DOE must develop more reliable information so that it can prepare adequate NEPA documents.

DOE should not consider bringing West Valley high-level waste to WIPP.
On July 2, 2003, a federal district court judge in Idaho issued his decision in Natural Resources Defense Council, et. al. v. Abraham, 271 F.Supp. 2d 1260, D. Idaho, 2003. In its decision, the Court held that DOE Order 435.1 is invalid. Thus, DOE may not reclassify high-level waste at West Valley (or other DOE sites) as TRU so that they can be stored or disposed at WIPP.

DOE should include that court decision in its supplement to the West Valley FEIS and clearly state in any FEIS and ROD that no reclassification of HLW will be done regarding West Valley HLW.

The public comment process on the West Valley EIS was inadequate.
DOE's NEPA regulations state that public notice "should focus on reaching persons who may be interested in or affected by the proposal." 10 CFR 1021.313(d). CEQ's NEPA Regulations require that agencies shall "make diligent efforts to involve the public in preparing and implementing their NEPA procedures." 40 CFR 1506.6(a).

DOE did not make diligent efforts to notice and distribute the West Valley draft EIS to affected agencies and organizations in New Mexico. In preparing the supplemental EIS that SRIC believes is required, DOE should notice agencies and organizations, including state and local governments, in New Mexico, Washington, Oregon, Idaho, Tennessee, and South Carolina if it maintains that alternatives A or B are to be considered.

Thank you for your full consideration and response to these comments.

Sincerely,

Don Hancock