V 0/ OFFICE OF INSPECTOR GENERAL
"*i *-
Catalyst for Improving the Environment
Evaluation Report
Review of EPA's Response to Petition
Seeking Withdrawal of Authorization for
Idaho's Hazardous Waste Program
Report No. 2004-P-00006
February 5, 2004
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Report Contributors:
Carolyn Copper
Michael Owen
Phil Weihrouch
Madeline Mullen
Abbreviations
CFR Code of Federal Regulations
DOE Department o f Energy
EPA Environmental Protection Agency
HLLWE High Level Liquid Waste Evaporator
IDEQ Idaho Department of Environmental Quality
INEEL Idaho National Environmental and Engineering Laboratory
INTEC Idaho Nuclear Technology and Engineering Center
ILWMS INTEC Liquid Waste Management System
LET&D Liquid Effluent Treatment and Disposal
MACT Maximum Achievable Control Technology Standards
MO A Memorandum of Agreement
NOD Notice of Deficiency
NOV Notice of Violation
OIG EPA Office of Inspector General
PEWE Process Equipment Waste Evaporator
ppm Parts Per Million
RCRA Resource Conservation and Recovery Act
WINCO Westinghouse Idaho Nuclear Company
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, DC 20460
OFFICE OF
INSPECTOR GENERAL
February 5, 2004
MEMORANDUM
SUBJECT: Evaluation Report:
Review of EPA' s Response to Petition Seeking Withdrawal of Authorization for
Idaho's Hazardous Waste Program
Report No. 2004-P-00006
FROM: Carolyn Copper
Director for Program Evaluation: Hazardous Waste Issues
Office of Program Evaluation
TO: John lani
Regional Administrator
EPA Region 10
Attached is our final report on the Environmental Protection Agency's (EPA's) response to the
petition seeking withdrawal of authorization for Idaho's Hazardous Waste Program. This
petition was submitted to Region 10 on September 13, 2001, by Keep Yellowstone Nuclear Free,
the Environmental Defense Institute, and David B. McCoy (the petitioners). The purpose of our
review was to determine whether EPA Region 10's (Region's) response to the September 2001
petition addressed the issues and was supported by documentation.
The report contains findings and recommendations that describe problems the Office of Inspector
General (OIG) has identified and the corrective actions the OIG recommends. This report
represents the opinion of the OIG and the findings contained in this report do not necessarily
represent the final EPA position. Final determinations on matters in this report will be made by
EPA managers in accordance with established audit resolution procedures.
On October 24, 2003, the OIG issued a draft report to the Region for review and comment. We
received the Region's and the Idaho Department of Environmental Quality's (IDEQ's) responses
to the draft report on November 24, 2003. The Region and the OIG discussed the draft report
recommendations on December 11, 2003. During the meeting, we agreed to revise
Recommendation 1, and the Region agreed to revise its response for Recommendations 3 and 4.
The Region submitted a revised response to the draft report recommendations on
January 27, 2004. The Region concurred with the report's recommendations.
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ACTION REQUIRED
In accordance with EPA Manual 2750, you, as the primary action official, are required to provide
this office with a written response within 90 days of the final report date. The response should
address all recommendations. For corrective actions planned but not completed by the response
date, please describe the actions that are ongoing and provide a timetable for completion.
Reference to specific milestones for these actions will assist in deciding whether to close this
report in the assignment tracking system.
We have no objection to the further release of this report to the public. Should you or your staff
have any questions, please call me at (202) 566-0829, or Michael Owen, Assignment Manager, at
(206) 553-2542.
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Table of Contents
Purpose of Review 1
Background 1
Scope and Methodology 2
Evaluation Results 3
Conclusions 12
Recommendations 13
Region 10 and IDEQ Responses and OIG Evaluations 14
Appendices
A Major Petition Allegations 21
B Background on Idaho National Environmental
and Engineering Laboratory 23
C Details on Scope and Methodology 25
D EPA Region 10's Response 27
E Idaho Department of Environmental Quality's Response 41
F Distribution 49
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Purpose of Review
On September 13, 2001, Keep Yellowstone Nuclear Free, the Environmental Defense Institute,
and David B. McCoy submitted a petition to Region 10 to withdraw the IDEQ as the Resource
Conservation and Recovery Act (RCRA) authority for the State of Idaho.1 The petition alleged
that IDEQ had failed to administer environmental laws at Department of Energy's (DOE's) Idaho
National Environmental and Engineering Laboratory (INEEL). Prior to the petition, the
petitioners submitted requests to the EPA and DOE Inspectors General to investigate allegations
of DOE's failure to comply with environmental laws at INEEL. The allegations discussed in
these earlier submissions were incorporated into the September 2001 petition to EPA. Because
the allegations discussed in the petition represent serious environmental compliance issues, the
OIG agreed to conduct a review. Specifically, the purpose of this review was to determine
whether Region 10's response to the September 2001 petition addressed the issues and was
supported by documentation.
The major allegations discussed in the September 13, 2001, petition are summarized in
Appendix A.
Background
RCRA was enacted by Congress in 1976 as an amendment to the Solid Waste Disposal Act of
1965. RCRA's goals are to protect human health and the environment by ensuring that
hazardous wastes are managed in an environmentally safe manner, to reduce or eliminate the
generation of hazardous wastes, and to conserve energy and natural resources. Subtitle C of
RCRA establishes the program for the management of hazardous wastes from the point of origin
to the point of final disposal. Subtitle C sets technical standards for the design and safe operation
of hazardous waste treatment, storage, and disposal facilities. RCRA authorizes States, after
obtaining approval from EPA, to develop and enforce their own hazardous waste programs in
place of the Federal program.
EPA authorized IDEQ's Hazardous Waste Program in April 1990. The Memorandum of
Agreement (MOA) between the State of Idaho and the Region establishes the policies,
responsibilities, and procedures for administration of the State's hazardous waste program. The
MOA also defines the manner in which IDEQ and Region 10 will coordinate in the
administration and enforcement of the State's program.
INEEL was established by the Federal Government in 1949 and covers 893 square miles in
southeastern Idaho. Its original purpose was to provide an isolated location where prototype
nuclear reactors could be designed, built, and tested. INEEL's current mission is research,
hazardous and radioactive waste management, environmental cleanup, and environmental
Petition to United States Environmental Protection Agency ("EPA") to Commence Proceedings for
Withdrawal of the Idaho Department of Environmental Quality ("IDEQ") as the Resource Conservation and
Recovery Act ("RCRA") Authority for the State of Idaho (40 CFR§§ 271.22 and 271.23).
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technology development. According to the February 2003 revision to the Part A permit
application for ESfEEL, the facility has 48 RCRA regulated units.2
Keep Yellowstone Nuclear Free, the Environmental Defense Institute, and David B. McCoy
submitted requests to the EPA and DOE Inspectors General on August 8, 2000 and September
18, 2000, to evaluate allegations of DOE's failure to comply with environmental laws at ESfEEL.
Additional information on alleged violations of environmental laws at INEEL was submitted by
the petitioners to the EPA OIG on February 5, 2001. The petitioners' allegations in these
submissions were incorporated into the September 13, 2001 petition to EPA for withdrawal of
Idaho's authority to administer RCRA.
In response to the petitioners' request that the EPA OIG evaluate the administration of
environmental laws and regulations at ESfEEL, the OIG requested that Region 10 provide EPA's
position on each allegation discussed in the September 13, 2001 petition. The Region's
March 20, 2002, response disclosed that it had conducted an informal evaluation of the
allegations in accordance with 40 Code of Federal Regulations (CFR) Part 271 and concluded
that sufficient cause did not exist to commence withdrawal proceedings of the State's Hazardous
Waste Program authorization. The response stated that the Region found that the State of Idaho
had met its authorized program authorities to issue permits, enforce hazardous waste regulations,
and provide public participation; and had complied with the MO A for the State's authorized
Hazardous Waste Program.
On April 2, 2002, the petitioners issued a rebuttal to the Region which questioned some of the
facts cited in the response to the petition. The Region issued a second response on July 2002
which provided answers to the questions posed in the petitioners' rebuttal.
Scope and Methodology
To accomplish our objective, we:
• Compared Region 10's responses to the allegations made by the petitioners and
documentation provided to support their responses to determine whether all issues were
addressed;
• Where needed, submitted clarification questions to Region 10 and evaluated their responses
to followup questions to determine whether the allegations had been addressed by the
Region; and
• Performed limited field work at IDEQ for three judgmentally selected INEEL RCRA waste
units discussed in the petition to evaluate the permitting, enforcement, and public
participation process covering the period April 1990 through July 2003.
The number of units identified on the Part A for INEEL differs from that shown in RCRAInfo, EPA's
comprehensive information database on the regulated universe of hazardous waste handlers. Individual units maybe
grouped together for permitting.
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The evaluation scope covered allegations discussed in the September 13, 2001, petition to
Region 10 requesting withdrawal of EPA's authorization of IDEQ's Hazardous Waste Program.
There has been numerous correspondence submitted by the petitioners covering many issues at
INEEL. Our evaluation included a review of IDEQ's Hazardous Waste Program records and
other evaluation procedures we considered necessary for purposes of expressing an opinion on
our objective.
The three INEEL units selected for field work were the:
• New Waste Calcining Facility Calciner (Calciner), a treatment facility used to convert liquid
radioactive waste into a dry substance.
• Process Equipment Waste Evaporator (PEWE), which was used to concentrate and reduce
liquid radioactive wastes prior to storage or further processing.
• High Level Liquid Waste Evaporator (HLLWE), which was also used to concentrate and
reduce liquid radioactive wastes prior to storage or further processing.
This evaluation was performed in accordance with the Government Auditing Standards issued by
the Comptroller General of the United States. Appendix B provides further details on INEEL
and the units reviewed. Appendix C provides additional details on the scope and methodology.
Evaluation Results
We found that the Region supported its positions on most of the allegations with appropriate
RCRA criteria and documentation. However, we found several areas of concerns, resulting in
there being less assurance that hazardous waste is managed in an environmentally safe manner in
accordance with RCRA. Specifically, we found:
• A date for submitting information to correct deficiencies in the Part B application for the
Calciner was not established until 1997 even though permit deficiencies were identified in
1991 and a date is required by 40 CFR Part 124. Although we found weaknesses in the
permitting process, no followup action is required by the Region for the Calciner because the
unit is currently undergoing closure. However, our finding supports concerns raised by the
petitioners related to IDEQ's failure to exercise control in requiring permits.
• A date for submitting information to address unresolved Part B permit application
deficiencies for the HLLWE was not established as required by EPA regulation. Further,
followup actions to obtain a complete permit application for the HLLWE were not taken until
almost 8 years after a notice of deficiency (NOD) was issued to DOE. Since the permit
deficiencies for the HLLWE have not been resolved, the Region needs to ensure that IDEQ
requires DOE to expeditiously correct these deficiencies.
• Data has not been collected to determine whether the PEWE and associated tank systems are
in compliance with RCRA emissions standards. The Region needs to ensure that IDEQ
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inspections include evaluations of the PEWE and its associated tanks to determine
compliance with RCRA emissions requirements.
• Although compliance inspections at ESfEEL generally have been conducted annually since
1989, compliance with RCRA waste characterization requirements was not assessed for the
INTEC Liquid Waste Management System (ILWMS) until July 2001. The Region needs to
ensure that IDEQ inspections include evaluations of the ILWMS to determine compliance
with waste characterization requirements.
IDEQ officials stated that more emphasis was not placed on resolving permit deficiencies for the
Calciner and HLLWE because priority was placed on permitting other ESfEEL facilities. Further,
we found that IDEQ had incomplete emissions data and waste characterization information
because inspections of the PEWE and ILWMS did not cover all major RCRA requirements.
According to the IDEQ officials, the large number and complexity of RCRA units at INEEL
required that IDEQ prioritize its permitting activities for the facility and limit the scope of RCRA
requirements evaluated during inspections.
Because our evaluation of IDEQ's Hazardous Waste Program activities was limited to three units
at INEEL, and INEEL represents only 1 of 10 RCRA facilities within the State of Idaho, we
cannot conclude that these weaknesses represent program-wide material deficiencies. The
following sections of this report discuss our findings in more detail.
Date to Resolve Calciner Permit Deficiencies Not Established in a Timely Manner
The petition alleged that IDEQ granted DOE years to comply with requirements for Part A and B
applications for the Calciner which DOE failed to accomplish. The Region's response stated that
consent orders required DOE to either permit or commence closure of the Calciner by June 2000
and to gather data to assist in a permitting decision, including emissions testing, a risk
assessment, and an integrity assessment of the tanks. The Region's response also stated that
there were technical challenges posed in collecting the emissions data required for the permit
decision. In addition, the Region stated that DOE ceased operations of the unit and submitted a
closure plan in August 2000, consistent with the consent order.
Although the Region's response indicated that appropriate actions were taken on the permit
application, we found that a date for submitting information to correct deficiencies in the Part B
application for the Calciner was not established until 1997 even though permit deficiencies were
identified in 1991 and a date is required by 40 CFR Part 124. Figure 1 presents a timeline of
activities related to permitting of the Calciner.
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Figure 1
DOE Submits Caldrier
PartBApp. shutdown
IDEQ Requests
Action Plan to
Address Part B Def.
Consent Order to
Permit or Close
DOE I ssue s D raft C lo sure
RiskAssessment Plan
Dec. 1991
June 1997
Nov. 1997
April 1999 May 2000 April 2002
Oct. 1991
Nov. 1993
Oct. 1997
Aug. 1998
May 1999 Aug.2000
IDEQIssues DOERestarts DOEResponse Co nsent Order DOEDecision FinalClosure
NOD on PartB Calciner to 10/97 Request .Amended to Close Plan
October 1991:
DOE submits the RCRA Part B application for the Calciner on October 1,
1991. DOE's transmittal letter for the permit application discloses that the
application is incomplete because several permit issues require resolution.
These unresolved issues include:
Some EPA methods for sampling and analysis are not useable due
to the design of tanks and sampling systems and high radiation
levels of waste solutions.
Waste stream characterization data is too limited.
Radionuclide and Nitrous Oxide off-gas emissions monitoring is
deficient because monitoring is not conducted at emissions points.
No risk assessment was completed because data regarding the
contribution of all hazardous constituents to the emissions is
needed.
No operating standards for the miscellaneous unit have been
established.
December 1991:
DOE submits to IDEQ a schedule for providing the information missing
from application in order to address the application deficiencies on
December 24, 1991. The schedule discloses that the missing information
will be submitted to IDEQ over the 5-year period ending
December 31, 1996.
IDEQ issues a NOD to DOE addressing concerns with the permit
application and corrective action schedule on December 31, 1991. The
NOD informs DOE that the permit application is incomplete because of
the deficiencies discussed in the application's transmittal letter. In
addition, the NOD states that IDEQ has several questions and concerns
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November 1993:
June 1997:
October 1997:
November 1997:
August 1998:
April 1999:
with the corrective action schedule and DOE will be contacted in the
immediate future to work out details for resolving the deficiencies.
However, the NOD does not specify a date for submitting information to
address the deficiencies as required under 40 CFR Part 124. Part 124
requires that a NOD on a permit application specify the information
necessary to make the application complete and a date for submitting the
necessary information.
The deficiencies are not resolved as of November 1993 when DOE
temporarily stops operating the Calciner and places it in "standby mode."
DOE reported that the Calciner processed about 753,000 gallons of liquid
waste during the period from December 1990 through November 1993.
DOE restarts the Calciner, 43 months after placing the unit in temporary
standby mode. Despite the restart of operations, IDEQ does not require
DOE to establish a specific schedule for resolving the permit deficiencies.
Six years after the deficiencies were identified, IDEQ issues a followup
letter to DOE requesting identification of the application deficiencies that
have been resolved, as well as an action plan for resolution of the
remaining deficiencies. The letter also requests a schedule for resolving
the remaining deficiencies and establishes a due date of
November 7, 1997, for providing IDEQ with the information.
IDEQ's actions to resolve the permit deficiencies show significant
improvement. On November 10, 1997, DOE submits a draft response to
IDEQ's October 1997 request. During the period from November 1997 to
August 1998, IDEQ pursues resolution of the deficiencies through
followup letters and meetings with DOE. These followup activities
ultimately result in a consent order that establishes a specific schedule for
permitting the unit or submitting a closure plan.
The consent order requirements become effective in August 1998 and
establish a due date of April 30, 1999, for permitting or placing the unit in
standby mode. The consent order also specifies that the unit cannot be
restarted without a permit after April 30, 1999, and requires DOE to make
a decision on permitting or closing the unit by June 1, 2000.
IDEQ extends the due date for permitting or placing the unit in standby
from April 30, 1999, to June 1, 2000, through an amendment to the
consent order. The date is extended primarily to provide DOE time to
implement a project to sample the unit's off-gas emissions to support
DOE's decision whether to attempt to meet the performance standards of
EPA's pending Maximum Achievable Control Technology (MACT)
Standards which were promulgated in September 1999.
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May 1999: In response to the consent order, DOE issues a final screening level risk
assessment for the Calciner in May 1999 and an emissions inventory
testing report in February 2001. These reports conclude that the unit's
emissions would result in maximum offsite and onsite health and
ecological impacts that do not exceed EPA standards. However, DOE's
off-gas emissions sampling project identifies that the unit's off-gas
emissions exceed the MACT standards for mercury and unburned
hydrocarbons.
May 2000: DOE makes a decision to close the Calciner and stops operating the unit.
August 2000: DOE submits the draft closure plan to IDEQ.
April 2002: DOE submits the final closure plan to IDEQ.
We found that a date for submitting information to address the permit application deficiencies
was not established by IDEQ until October 1997, which was 6 years after the deficiencies were
identified. IDEQ may have been able to make a more timely permitting decision for the Calciner
if a date for submitting information to correct the permit application deficiencies had been
included in the December 1991 NOD. Timely permitting decisions are important because a
RCRA Permit provides the legal authority to treat, store, or dispose of hazardous waste and
establishes facility-specific requirements and conditions which must be met in order to comply
with RCRA. Furthermore, compliance with the permit ensures that hazardous waste is handled
in a controlled manner that is protective of human health and the environment.
IDEQ officials told us that more emphasis was not placed on resolving permit deficiencies for the
Calciner because priority was placed on permitting other INEEL facilities. According to the
officials, DOE had informed IDEQ that it might not operate the Calciner in the future and, as a
result, IDEQ doubted that the unit would be restarted. The officials also said that the large
number and complexity of RCRA units at INEEL required that IDEQ prioritize its permitting
activities for the facility. Consequently, priority was placed on permitting other significant
INEEL units such as the Radioactive Waste Management Facility and the Sodium Processing
Plant. Since we did not include these units in our review, we were unable to determine whether
IDEQ correctly prioritized its permitting activities for INEEL.
Date to Resolve Permit Deficiencies for the HLLWE Not Established
The petition alleged that a permit application has not been filed for the HLLWE and the unit is
not included in the June 2001 Part B application. The Region's response stated that the HLLWE
was included in the 1990 Part A application as a larger capacity replacement unit under 40 CFR
Part 270. The Region explained in the response that the regulation authorizes IDEQ to grant
interim status to new units which increase the capacity of a process already in operation at a
facility. The response also stated that IDEQ was drafting a schedule to require DOE to include
the HLLWE as a Class 3 permit modification.
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Although we acknowledge the Region's judgment that the HLLWE qualified for interim status,
our review found that IDEQ's NOD on the permit application did not establish a date for
submitting information to address unresolved Part B permit application deficiencies for the unit
as required by 40 CFR Part 124. Further, followup actions to obtain a complete permit
application for the HLLWE were not taken until almost 8 years after this NOD was issued to
DOE. Figure 2 presents a timeline of permitting activities for the HLLWE.
Figure 2
DOE Submits Revised Volume 14
DOE Submits DOE Submits Volume 14 Establishing Commitment for
P art B Application P ermit Application for ILWMS Permitting HLLWE
| June 1994 | Apr!I 2002 | May 2003
July 1993 I June 2001 I December 2002 I
IDEQ Submits IDEQ Issues NOD on IDEQ Issues NOD on
NOD on PartB Volume 1 4 Requiring Schedule Volume 1 4 Addressing Waste
for Permitting HLLWE Characterization Deficiencies
July 1993: A Part B permit application for the HLLWE3 and several other RCRA
units at INEEL is submitted to IDEQ on July 21, 1993.
June 1994: IDEQ determines that the Part B application is incomplete and issues a
NOD to DOE on June 30, 1994. The NOD includes deficiencies for the
HLLWE in the areas of waste characterization and sampling methods. As
a result, the NOD requests that DOE provide IDEQ additional information
on the unit, including:
• Chemical and physical analyses used to characterize wastes prior to
treatment.
• Test methods used to test for hazardous waste constituents listed in
Part A of the RCRA permit application.
• Sampling methods and their consistency with EPA or equivalent IDEQ
approved methods.
However, IDEQ does not establish or require a date for submitting
information to correct the deficiencies even though the NOD identifies the
deficiencies as "substantial issues." As discussed previously, 40 CFR Part
124 requires that a NOD on a permit application specify the information
The HLLWE is referred to as the New Waste Calcining Facility Evaporator Tank System in the permit
application.
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April 2002:
December 2002:
necessary to make the application complete and a date for submitting the
necessary information.
June 2001: Volume 14 permit application for the ILWMS is submitted by DOE. The
waste characterization issues requiring resolution by the June 1994 NOD
are partially corrected through this permit application for the ILWMS.
However, some issues remain unresolved, and this permit application does
not include the HLLWE.
Almost 8 years after the 1994 NOD, IDEQ issues a NOD on the Volume
14 Partial Permit Application which includes a requirement for DOE to
draft a "schedule of compliance" for permitting the HLLWE.
DOE submits a revised Volume 14 permit application. The revised permit
application establishes a commitment by DOE to add the HLLWE to the
Volume 14 permit application within 180 days of the effective date of
permitting the units currently included in the application.
May 2003: IDEQ issues a second NOD on the Volume 14 partial permit application
which includes a requirement for DOE to provide additional information
to address waste characterization deficiencies for the ILWMS within
90 days. Resolution of these issues for the ILWMS should also correct the
unresolved deficiencies discussed in the June 1994 NOD.
IDEQ did not initiate followup actions which addressed the unresolved permitting issues for the
HLLWE until April 2002. The April 2002 NOD resulted in a commitment by DOE to submit a
new permit application for the HLLWE within a specific time period. Furthermore, the
remaining unresolved waste characterization issues for the HLLWE should be resolved by
IDEQ's May 2003 NOD. Because the 90-day deadline for submitting the information specified
by the May 2003 NOD ended after we completed our field work at IDEQ, we were unable to
verify whether the waste characterization issues have been resolved. However, IDEQ officials
told us they did not anticipate any barriers to resolving the Part B application deficiencies and
issuing the permit for the HLLWE.
Although IDEQ identified in 1994 that it did not have sufficient waste characterization
information to make a permit decision for the HLLWE, these issues had not been resolved as of
July 2003. IDEQ officials said more emphasis was not placed on resolving permit deficiencies
for the HLLWE because priority was placed on permitting other ESfEEL facilities. As discussed
previously, timely permitting decisions are necessary for ensuring hazardous waste is handled in
a controlled manner that is protective of human health and the environment.
Air Emission Data Not Collected for PEWE
The petition alleged that IDEQ failed to enforce emission requirements of 40 CFR Part 265
Subpart AA for the PEWE. The Region's response said that it is clear that DOE believes the
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PEWE is subject to the air emissions standards from information provided in the RCRA Part B
application for the INEEL facility. The Region also stated in the response that there is no
information to suggest that the PEWE is out of compliance with the air emissions standards.
Although the Region found no evidence that the PEWE was out of compliance with standards,
our review found that IDEQ has not collected data to determine whether the unit and its
associated tank systems are in compliance with 40 CFR Part 265 Subpart AA air emissions
requirements. The PEWE and its associated tank systems include process vents and air stripping
operations for hazardous wastes containing organic concentrations which exceed 10 parts per
million (ppm). Under Subpart AA, the owner or operator of a facility with process vents
associated with distillation, fractionation, thin-film evaporation, or steam stripping operations
managing hazardous wastes with organic concentrations of at least 10 ppm is required to either:
(1) reduce total organic emissions from all affected process vents at the facility below 3 pounds
per hour and 3.1 tons/year, or (2) reduce total organic emissions from all affected process vents at
the facility by 95 weight percent.
IDEQ officials told us that they had conducted an evaluation showing the PEWE was in
compliance with the Subpart AA requirements. We requested to review this analysis; however,
IDEQ was unable to provide us with its evaluation results. Furthermore, IDEQ inspection
records for INEEL covering the period from 1996 to 2002 and permitting files covering the
period from 1996 to 2003 showed that IDEQ has not verified DOE's compliance with the
emission standards specified by Subpart AA for the PEWE and its associated tank systems. We
found that the inspection records did not include emissions information for the PEWE and
associated tank systems.
In addition, permitting documents show that IDEQ only recently identified the need for DOE to
demonstrate compliance with Subpart AA emissions standards for the PEWE and associated tank
systems. On April 12, 2002 and May 2, 2003, IDEQ issued NODs addressing deficiencies with
the Part B permit application for ILWMS.4 These NODs included requests for DOE to provide
information demonstrating that the PEWE, associated tanks, and other regulated units are in
compliance with the Subpart AA requirements. As of July 2003, IDEQ had not received the
requested information from DOE.
Because compliance with Subpart AA requirements for the PEWE and its associated tanks has
not been verified, IDEQ had no assurance these units were in compliance with the emissions
standards as of July 2003 when we completed our field work.
IDEQ was unable to determine whether emissions from the PEWE and associated tank systems
were in compliance with 40 CFR Subpart AA standards because IDEQ's inspections did not
cover all major RCRA requirements. Our review of IDEQ's inspection records showed that
IDEQ inspection coverage for the PEWE and other units at the ILWMS focused on RCRA
requirements such as inspection logs, balance transfers, leak detection, and secondary
This permit application includes the PEWE and its associated tanks systems. The application was
orginally submitted to IDEQ on June 29, 2001.
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containment. According to IDEQ officials, the inspections did not evaluate compliance with all
major RCRA requirements because of the large number of RCRA units located at INEEL. The
officials explained that IDEQ conducts a 1-week annual RCRA compliance inspection of the
facility and the large number of RCRA units requires that the evaluation of each unit be limited
to those RCRA requirements determined to be appropriate by the inspector.
Subpart AA emissions standards are intended to reduce human health and environmental risks.
Therefore, IDEQ needs to ensure annual inspections at the PEWE include compliance
evaluations of Subpart AA requirements.
Compliance with Waste Characterization Requirements atlLWMS Not Verified
The petition alleged that IDEQ allows the PEWE and Liquid Effluent Treatment and Disposal5
(LET&D) facility, which are part of the ILWMS, to operate illegally because the wastes have not
been characterized prior to treatment. The Region's response stated that there is no reason to
believe that waste characterizations have not been made. The response also said that the Part B
application for the PEWE and LET&D indicate that wastes are characterized prior to treatment.
Our review found that IDEQ did not verify whether waste characterization activities for the
ILWMS met RCRA requirements until July 2001 even though it has generally conducted
compliance inspections at INEEL annually since 1989. Under 40 CFR Part 265 an owner or
operator is required to obtain a detailed chemical and physical analysis of a representative sample
of the hazardous wastes prior to their treatment, storage, or disposal. The regulation also requires
that a waste analysis plan which describes the waste characterization procedures be developed
and followed. The minimum elements of the plan include:
• Parameters for each hazardous waste which will be analyzed and the rationale for the
selection of the parameters.
• Test methods which will be used for these parameters.
• Sampling methods which will be used to obtain a representative sample of the waste to be
analyzed.
• Frequency with which the initial analysis of waste will be reviewed or repeated to ensure that
the analysis is accurate and up to date.
However, our review of IDEQ inspection records for INEEL covering the period from 1989 to
2002 and permitting and compliance files covering the period from 1990 to 2003 identified that
IDEQ did not evaluate DOE's compliance with waste characterization requirements specified by
Part 265 until July 2001. During the July 2001 inspection, IDEQ identified several deficiencies
The LET&D facility consists of an evaporator tank system and two acid fractionators. The LET&D
reduces PEWE overheads, and recovers nitric acid from PEWE overheads for potential reuse at other INTEC
facilities.
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with waste characterization for the ILWMS, including: (1) failure to maintain a waste analysis
plan that specifically described the sampling methods that will be used; (2) failure to state how
INEEL would determine the underlying hazardous waste constituents in waste generated at the
point of generation of the waste; and (3) failure to maintain a waste analysis plan that described
how compatibility of wastes will be determined.
IDEQ issued a notice of violation (NOV) to DOE on November 20, 2001, which requested a
compliance conference to discuss violations identified during the inspection. A year later, in
November 2002, IDEQ established a corrective action schedule for the waste characterization
and other unresolved deficiencies identified during the inspection through a consent order with
DOE. The consent order required resolution of the waste characterization deficiencies within
210 days of DOE's submission of a waste analysis plan to IDEQ.
In April 2003, DOE submitted a waste analysis plan to IDEQ as required by the consent order.
However, the plan was incomplete and IDEQ issued a letter to DOE in May 2003 requesting
corrections to the plan. In its response to the draft report, IDEQ informed us that DOE submitted
a revised waste analysis plan on July 2, 2003, and it made a decision to accept the plan as
complete on August 11, 2003.
The review of IDEQ's permitting and compliance files identified that IDEQ has also been
addressing waste characterization issues with the ILWMS through the RCRA permitting process
since April 2002. IDEQ issued NODs addressing deficiencies with the Part B permit application
for the ILWMS on April 12, 2002, and May 2, 2003. However, as of July 2003, IDEQ had not
received sufficient waste characterization information for the Part B application from DOE.
As discussed previously, IDEQ officials said that the large number of RCRA units at INEEL
prevented IDEQ from conducting a comprehensive RCRA inspection for all the units. As a
result, the ILWMS was not evaluated for compliance with waste characterization requirements
until July 2001.
According to EPA's guidance manual for waste analysis, proper waste analysis is necessary to
identify and classify hazardous waste in accordance with RCRA and to ensure the waste is
managed properly. The guidance also discloses that the waste classification under RCRA
determines the legal methods available for treatment, storage, or disposal of the waste. Since
compliance with RCRA waste characterization requirements for the ILWMS was not evaluated
prior to July 2001, there was no assurance that wastes were sufficiently characterized and their
storage and treatment were protective of human health and the environment.
Conclusions
Region 10 generally relied on appropriate regulatory requirements and standards in reaching its
conclusion that evidence did not exist to commence proceedings to withdraw the State of Idaho's
authority to run its RCRA Hazardous Waste program. However, we identified instances where
the Region did not fully assess all allegations. Our limited review of these allegations indicates
that where permitting deficiencies were not corrected by DOE, years passed before any followup
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actions were taken. Furthermore, we found that compliance with emissions requirements has not
been verified and actions were only recently initiated to address waste characterization
compliance issues associated with the ILWMS. Our limited review of practices at some facilities
does not permit us to conclude that there is a program-wide deficiency in Idaho. However, the
results of our review highlight how some of the deficiencies we observed, if known or observed
by members of the public, could be taken to indicate much broader and serious program
deficiencies, if not addressed directly and timely by Idaho or EPA officials.
We acknowledge Idaho State officials' comments that some of the weaknesses we observed were
due to their need to prioritize work. We recognize the need for prioritization. However, IDEQ
had a legal requirement to resolve the permit application deficiencies for the Calciner and
HLLWE. A RCRA permit provides the legal authority to treat, store, or dispose of hazardous
waste and establishes facility specific requirements and conditions which must be met in order to
comply with the law. Compliance with the permit is the basic assurance that hazardous waste is
handled in a controlled manner that is protective of human health and the environment. IDEQ
needs to ensure due dates are established and appropriate followup actions are taken in order to
prevent years of delay with resolving permit deficiencies as in the cases of the Calciner and
HLLWE.
Recommendations
We recommend that the Region 10 Administrator:
1. Require that IDEQ timely addresses and resolves RCRA permit application
deficiencies for the HLLWE. Specifically:
a. Require IDEQ to take appropriate actions to ensure that information
necessary to resolve the application deficiencies for the HLLWE discussed
in the June 1994 NOD are resolved by the Volume 14 partial permit.
b. Establish a milestone in IDEQ's annual State Grant Workplan for
submission of the Class 3 permit modification for the HLLWE within 180
days of the effective date of the Volume 14 partial permit.
2. Advise IDEQ that NODs issued to resolve RCRA permit application deficiencies
are required under 40 CFR Part 124 to include a date for submitting information
necessary to address the deficiencies.
3. Require that IDEQ inspections at ESfEEL include evaluations of the PEWE and its
associated tanks to determine compliance with 40 CFR Part 265 Subpart AA
emissions requirements. In addition, advise IDEQ that inspections at INEEL
continue to include evaluations of the ILWMS to determine compliance with
waste characterization requirements specified by 40 CFR Part 265.
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4. Verify that Recommendations 1 through 3 have been completely implemented
during the Region's next scheduled review of IDEQ's Hazardous Waste Program.
Require IDEQ to establish an action plan for any recommendations that have not
been completely implemented.
Region 10 and IDEQ Responses and OIG Evaluations
We received the Region's and IDEQ's responses to the draft report on November 24, 2003. We
also met with the Region and discussed its response to the recommendations on
December 11, 2003. During the meeting, we agreed to revise Recommendation 1 and the Region
agreed to revise its response for Recommendations 3 and 4. The Region submitted a revised
response to the OIG on January 27, 2004.
The Region agreed with the recommendations and provided comments addressing some details
in the findings. IDEQ disagreed with the findings and stated that the report's conclusions and
recommendations go beyond the purpose of our evaluation. We made minor revisions to the
report as appropriate based on the Region's and IDEQ's responses.
The Region's and IDEQ's responses and our evaluation of their comments are discussed below.
The Region's and IDEQ's complete responses are contained in Appendices D and E,
respectively.
Region 10's Response to Draft Report
The Region agreed to the recommendations and provided comments addressing some details in
the findings.
For Recommendation 1, the Region stated that it will identify permitting of the HLLWE as a
priority in the annual State Grant Workplan. The Region also said that it will add a commitment
to the workplan specifying submission of the Class 3 Permit Modification Request to add the unit
within 180 days of the effective date of the Volume 14 partial permit as a milestone under the
grant. In addition, the Region said that it would implement Recommendation 2 by adding the
requirement to include a response date when issuing a NOD as a performance measure under the
State Grant Workplan, which will be reviewed quarterly.
With regard to Recommendation 3, the Region stated it will require under the State Grant
Workplan that IDEQ inspections at the INEEL periodically include evaluations of the ILWMS
and its associated units to determine compliance with 40 CFR Part 265 Subpart AA emission
requirements. It will also advise IDEQ that inspections at INEEL continue to include evaluations
of the ILWMS to determine compliance with waste characterization requirements specified by
40 CFR Part 265.
The Region stated in response to Recommendation 4 that it will track IDEQ performance as part
of the State Grant Workplan monitoring process and require IDEQ to develop an action plan for
any unimplemented recommendations. In addition, it will review permitting correspondence
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submitted by INEEL and IDEQ to ensure that both Recommendations 1 and 2 are met. The
Region said that it will ensure that Recommendation 3 is met by designating the next inspection
of the INEEL ILWMS as an oversight inspection, with a Region 10 EPA inspector participating
on the inspection team in an oversight capacity.
In regard to the Calciner, the Region stated that the NOD issued by IDEQ did not finalize a date
for submittal of the information necessary to complete the application, but acknowledged DOE's
proposed schedule and indicated that IDEQ had questions and concerns with the schedule. The
Region noted that while IDEQ did not formally approve DOE's schedule, work was performed
on parts of the schedule, including emission testing beginning in 1991-1992, a risk assessment of
emissions during the 1993-1997 time frame when the Calciner was shut down, and efforts to
identify and develop other technologies to treat wastes processed by the unit. The Region also
said it did not believe that any followup action was necessary for the Calciner because a closure
plan had been approved in November 2002.
With respect to the HLLWE, the Region said that the draft report did not acknowledge significant
permitting activity associated with the July 1993 permit application and the June 1994 NOD,
including the Flourinel and Fuel Storage Facility and ongoing permitting activities at the
LET&D. The Region stated that it believes Idaho committed significant resources between the
NOD and the present time to permitting units contained in the 1993 permit application.
In addition, the Region stated that calculations to demonstrate the PEWE's compliance with
Subpart AA requirements were included with EPA's March 7, 2002, response to the petition and
appear to meet the threshold for demonstrating compliance with the interim status standards.
IDEQ requested additional information through the NOD process to ensure proper permitting of
the PEWE. The Region also said the use of the NOD is not evidence of noncompliance with
regulatory standards.
The Region stated that it does not believe that IDEQ had to verify compliance with waste
characterization requirements in response to our finding concerning waste characterization for
the ILWMS. However it agreed with the draft report that inspections of all interim status
facilities should include a review of all applicable requirements including waste analysis
requirements. The Region also noted that the June 1993 WINCO-1132 (Westinghouse Idaho
Nuclear Company Listed Waste Determination Report) and February 1999 Gilbert reports
verified hazardous wastes which entered or left the PEWE and that these analyses were specific
enough to provide the information necessary to treat, store, or dispose of hazardous waste in
accordance with 40 CFR Part 265. Notwithstanding the deficiencies identified for the ILWMS
during the 2001 inspection, IDEQ inspection and enforcement personnel did find that DOE
complied with the requirement to have a waste analysis plan as required by 40 CFR Part 265.
IDEQ used this plan to verify that only appropriate wastes were treated at the PEWE.
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OIG Evaluation of Region 10's Response
The Region's planned actions satisfactorily implement the recommendations. In response to the
final report, the Region needs to provide milestones for completion of planned actions for each
recommendation.
We agree that DOE was working toward resolving some of the permitting issues for the Calciner
during the approximate 6-year period following the December 1991 NOD. While the NOD
acknowledged and disclosed concerns with DOE's proposed schedule, IDEQ did not require
DOE to identify how issues were resolved and provide a schedule for resolution of the remaining
permitting issues until October 1997. We emphasize that 40 CFR Part 124 requires that a NOD
specify a date for submitting information necessary to correct permit application deficiencies.
Compliance with this requirement may have resulted in more transparent expectations on
resolving the permitting issues for the Calciner and a more timely closure decision. As discussed
in the report, the permit application was submitted to IDEQ in October 1991 and the decision to
close the unit was not made until May 2000, or more than 8 years later. Regarding the Region's
position that no followup action is to be taken on the issue of the Calciner, our draft report clearly
disclosed that no followup action is required by the Region.
With respect to the Region's comments on the HLLWE, we clearly disclosed in the report that
the scope of our field work at IDEQ was limited to the Calciner, the HLLWE, and the PEWE.
These units were selected because they provided the broadest coverage of major permitting and
enforcement allegations discussed in the petition. Of these three units, the HLLWE was the only
unit included in the 1993 Volume 10 Permit Application. As a result, we are unable to comment
on the permitting activities for the other units included in the permit application and 1994 NOD.
Furthermore, the Region's comments on these other units do not change our conclusions on
permitting activities for the HLLWE.
We evaluated the engineering calculations included in the Region's March 2002 response to the
petition during of our review. These calculations were from the Part B application for the
ILWMS. Although the Region commented that these calculations appear to meet the threshold
for demonstrating compliance with Subpart AA standards, NODs issued by IDEQ on the permit
application found that DOE had not demonstrated whether emissions from all affected process
vents could be maintained below regulatory limits. We agree that the NODs requesting
information demonstrating that the PEWE is in compliance with Subpart AA requirements do not
necessarily demonstrate the unit is not in compliance with the emission standards. However, the
NODs show that IDEQ had not obtained sufficient information to verify whether the unit was
operating in compliance with the emission standards.
The Region's position that IDEQ was not obligated to verify compliance with waste
characterization requirements for the ILWMS is not consistent with the requirements of 40 CFR
Part 271. Part 271 specifies that States are required to have inspection and surveillance
procedures to determine, independent of information supplied by regulated parties, compliance or
noncompliance with program requirements. We agree that the WINCO-1132 and Gilbert
Reports referred to by the Region provided information on wastes treated in the ILWMS.
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However, these reports do not demonstrate whether IDEQ had independently verified whether
the PEWE was in compliance with Part 265 waste characterization requirements. We also agree
with the Region that IDEQ's July 2001 inspection identified that DOE had a waste analysis plan
for the ILWMS. However, IDEQ also found that this plan was incomplete. As discussed in our
report, IDEQ found that the plan was missing critical waste characterization information required
by Part 265, including sampling methods. IDEQ disclosed in its response to the draft report that
DOE did not submit an acceptable waste analysis plan until July 2003. Therefore, prior to July
2003, IDEQ was unable to adequately evaluate and verify the waste characterization activities for
the PEWE.
IDEQ's Response to Draft Report
IDEQ disagreed with the findings and stated that it was concerned with the overall tone and
direction of the report in comparison to the stated purpose of the review. The stated purpose of
the review "was to determine whether Region 10's response to the September 2001 petition
addressed the issues and was supported by documentation." IDEQ said that the report goes
beyond this purpose by making specific findings of shortcomings in IDEQ's program and
recommending corrective actions by IDEQ rather than how EPA should more adequately
respond.
IDEQ also stated that while the report notes the shutdown of the Calciner, the report fails to note
that IDEQ was informed by DOE that it might not run the Calciner in the future. In addition, the
report fails to note that the Department's decision to cease permitting actions at the Calciner was
premised on the non-operation of the unit coupled with doubt as to whether it would ever run
again. Furthermore, the report fails to note the work of DOE and IDEQ during the period from
1991 through 1997 to resolve risk assessment issues and off-gas sampling methods that were
major obstacles to submission of a complete application by DOE. IDEQ also said to imply from
the absence of an administrative requirement under 40 CFR 124.3 that nothing was done to
resolve permitting issues at the Calciner is a gross oversimplification and mischaracterization of
the facts.
IDEQ stated that, rather than noting that the allegation that a permit application for the HLLWE
was not filed was false, we criticize IDEQ's failure to resolve a NOD relating to this permit
application. IDEQ also said the report fails to note that it addressed many deficiencies related to
this permit application, except those related to the HLLWE.
IDEQ also believed that some report statements appear to be exaggerations based on the limited
scope of the review. IDEQ stated that the report's findings regarding noncompliance with
40 CFR 124.3 are premised on NODs authored in 1991 and 1994. Therefore, the report implies
that historical "minor" deviations from regulatory requirements constitute systemic and ongoing
problems within IDEQ.
IDEQ said that from 1993 through 1998, DOE advised that the PEWE was a closed-loop, zero
emissions unit with no process vents. Therefore, Subpart AA was deemed inapplicable and
inspections for Subpart AA compliance would not have occurred. In 1998, when IDEQ became
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aware through discussions with the Permitting Program that the PEWE was not a zero emission
unit, IDEQ at that time required DOE to conduct a review to confirm compliance with Subpart
AA for the PEWE and LET&D. IDEQ has since concluded that the air emissions standards of
Subpart AA are being met. IDEQ also stated that despite the absence in inspection records, the
Department has conducted a review of this issue on several occasions and has made a compliance
determination regarding this provision. It also noted that requesting that DOE provide
information as part of its Part B permit application does not suggest that IDEQ had not
previously reviewed this for purposes of determining compliance.
With regard to the ILWMS, IDEQ said it verified DOE is in compliance with 40 CFR Part 265
waste characterization requirements through DOE's 1993 WINCO-1132 Report, and a site wide
waste analysis plan which it approved in 1995. This waste analysis plan was deemed sufficient
to indicate compliance with the Part 265 requirement to have sufficient chemical and physical
analysis for treatment. IDEQ also said the 1999 Gilbert Report verified the wastes entering the
PEWE. In addition, IDEQ stated that the issuance of the NOV in 2001 related to DOE's failure
to maintain a waste analysis plan specific to the ILWMS should not be seen as an indication that
waste characterization was insufficient. IDEQ said the NOV relates to administrative/record
keeping requirements.
Furthermore, IDEQ stated that the report focuses solely on inspection reports and permitting
documents for its conclusions. This focus solely on inspection reports and permitting documents
ignores the substantial amount of work that goes on outside the context of these regulatory
paradigms. The report fails to note that IDEQ meets with DOE at least quarterly to discuss
compliance issues and includes in these meetings many issues that arise outside the scope of
inspections and enforcement actions.
OIG Evaluation oflDEQ's Response
We disagree that the report goes beyond the stated purpose of the review. The purpose and scope
of this review were discussed with IDEQ during our entrance conference, which was held with
IDEQ on March 31, 2003. As discussed during the entrance conference, it was necessary for us
to evaluate IDEQ's regulatory actions for a limited number of RCRA units at INEEL in order to
verify the Region's position on the allegations in the petition. Our evaluation identified
deficiencies in IDEQ's permitting and compliance activities. As a result, our report discusses
these findings and recommends specific corrective actions.
We revised the report to disclose that DOE informed IDEQ of the possibility of a permanent
shutdown of the Calciner. In addition, we revised the report to identify IDEQ's doubt about a
future restart of the unit. Although IDEQ was informed by DOE that the Calciner may or may
not operate, 40 CFR Part 270 requires that DOE either provide the full information required by
the Part B application or initiate closure. Furthermore, IDEQ's doubt as to whether the Calciner
would ever run again did not relieve IDEQ's regulatory responsibility under Part 270 to require
the unit be permitted or closed. We also note that the Calciner was restarted in 1997, and IDEQ
did not establish a due date for submitting information to correct unresolved permit application
deficiencies until October 1997, or 6 years after the deficiencies were identified.
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We acknowledge that DOE was working toward resolving some of the permitting issues for the
Calciner during the approximate 6-year period between the December 1991 NOD and the
October 1997 followup letter. However, the permit application deficiencies were not corrected
during this 6-year period where IDEQ had not required DOE to meet a specific due date or
schedule for providing information necessary to complete the permit application. Under 40 CFR
Part 124, IDEQ has a responsibility to specify a date for submitting information necessary to
correct permit application deficiencies in NODs. Compliance with this requirement may have
resulted in more transparent expectations on resolving the permitting issues for the Calciner and
a more timely closure decision.
In regard to IDEQ's comments on the HLLWE, the report acknowledges that a permit application
for the HLLWE and several other units was submitted to IDEQ in July 1993. As discussed in the
report, this application was not complete, and IDEQ did not follow up on a NOD requesting
information to correct the deficiencies for almost 8 years. We did not evaluate IDEQ's actions to
address the deficiencies related to other units included in the July 1993 permit application
because they were not included in the scope of our review. As a result, we cannot express an
opinion on the IDEQ's permitting actions for these other units.
We disagree that the weaknesses in IDEQ's permitting and oversight activities discussed in the
report are exaggerations. Because the scope of our review was limited to three of the units at
INEEL discussed in the petition to Region 10, we clearly disclose in our report that we cannot
conclude that there are program-wide deficiencies in Idaho. Nonetheless, our review of IDEQ's
permitting and oversight activities for INEEL identified years of delay with follow up actions for
resolution of permit application deficiencies for the Calciner and HLLWE. Furthermore, we
found that compliance with emissions requirements has not been verified and actions were only
recently initiated to address waste characterization compliance issues associated with the
ILWMS. We also do not agree that the failure to establish due dates in NODs requesting
information necessary for making permitting decisions as required by 40 CFR 124 are minor
deviations from regulatory requirements. In the cases of the Calciner and the HLLWE, IDEQ's
deviation from this requirement contributed to the delays in the permitting process for these two
units.
DOE's assertions regarding whether the PEWE was subject to Subpart AA are not substitutes for
IDEQ's independent assessment of compliance with the regulations. 40 CFR 271 requires States
to have inspection and surveillance procedures to independently verify compliance or
noncompliance with regulatory requirements. Although IDEQ told us during field work and in
its response that it has concluded that the PEWE is in compliance with 40 CFR Subpart AA,
IDEQ was unable to provide documentation we requested to support this conclusion. We agree
the NOD on the permit application for the PEWE does not necessarily demonstrate
noncompliance with a regulation. However, this NOD shows that IDEQ had not obtained
sufficient information to make a decision on compliance with Subpart AA for permitting the
PEWE. Regarding IDEQ's statement that they had conducted a review of this issue, during our
review, IDEQ did not provide any documentation demonstrating they had evaluated compliance
with the requirements as requested.
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With regard to the ILWMS, the WINCO-1132 and Gilbert Reports provided information on
wastes treated in the ILWMS. However, as noted earlier, these reports do not demonstrate
whether IDEQ had independently verified whether the PEWE was in compliance with Part 265
waste characterization requirements. Although IDEQ stated that the site-wide waste analysis
plan indicates that the ILWMS is in compliance with waste characterization requirements, the
more relevant plan is DOE's waste analysis plan for the ILWMS. IDEQ evaluated this plan
during its July 2001 inspection at INEEL and found it was missing critical waste characterization
information. According to IDEQ, DOE did not submit an acceptable waste analysis plan until
July 2003. Therefore, IDEQ was unable to adequately evaluate and verify the waste
characterization activities for the PEWE until submission of this corrected plan.
We disagree with IDEQ's position that its NOV addressing deficiencies with the waste analysis
plan for the ILWMS relates to administrative/record keeping requirements. Part 265 specifically
requires that the waste analysis plan describe procedures used to characterize wastes prior to
treatment, storage, or disposal. The deficiencies with the waste characterization plan for the
ILWMS discussed in IDEQ's NOV included insufficient descriptions of sampling methods and
waste compatibility determinations. These processes are critical for ensuring hazardous wastes
are managed in a manner that is protective of human health and the environment.
Our review and conclusions were not based solely on inspection reports and permitting
documents. The report clearly discloses that we reviewed IDEQ Hazardous Waste Program
permitting, closure, compliance, and enforcement files and interviewed officials in IDEQ's
Hazardous Waste Program and State of Idaho's Office of Attorney General. Our review of IDEQ
files was comprehensive and included relevant meeting minutes. We also requested that IDEQ
provide us with any information supporting its regulatory decisions which was not maintained in
the official files. For example, we requested that IDEQ provide information which showed that it
had evaluated compliance with the waste characterization requirements for the ILWMS.
However, IDEQ did not provide this information during the review or as part of its response to
the draft report.
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Appendix A
Major Petition Allegations
Major Allegations
1. Failure to Exercise
Control in Requiring
Permits.
2. Failure to Analyze
Applicable Standards for
Permitting.
3. Continuing Operation of
Facilities Under Interim
Status Without Permits
That Conform to RCRA
Requirements.
4. Failure to Comply with
Public Participation
Requirements.
5. Failure to Act on
Violations of Permits and
Program Requirements
and to Seek Adequate
Enforcement of Penalties.
6. Failure to Comply with
Terms of the MOA.
7. Failure to Initiate
Closure Orders for Non-
Compliant Operations.
8. IDEQ is underfunded,
understaffed, and too
closely associated with
DOE.
Primary Issues Used to Support Petition Allegations
a. IDEQ granted DOE years to comply with Part A and B application requirements
for the Calcinerand Waste Experimental Reduction Facility.
b. IDEQ allows hazardous waste operations at INEEL facilities under consent
orders and other non-RCRA categories.
a. IDEQ allows piecemeal permitting to avoid public scrutiny of operations.
b. No permit application has been filed for the HLLWE and it is not included on the
Part B application.
a. PEWE is a thermal treatment facility but has been incorrectly defined as a tank
treatment unit or other treatment.
b. LET&D is an unpermitted facility.
c. PEWE and LET&D treat F-listed wastes without combustion technology.
d. PEWE and LET&D operate illegally because wastes have not been
characterized prior to treatment.
e. Tanks and vessels are not compliant with RCRA permit requirements and have
been omitted from the Part B application.
a. IDEQ acceptance of an incomplete Part B application for the PEWE prevents a
full public analysis.
b. Secret RCRA quarterly permitting meetings are held with DOE.
a. IDEQ allowed the Calcinerto operate under thermal treatment requirements
because it could not comply with incinerator requirements.
b. IDEQ failed to conduct an adequate inspection for the Specific Manufacturing
Capability Facility.
a. IDEQ is incapable of administering the program in accordance with Federal
statutes.
a. Discussed throughout petition with respect to numerous INEEL facilities.
a. IDEQ's programmatic budget is not adequate to oversee INEEL and funding
received from DOE creates the impression of collaboration.
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Appendix B
Background on Idaho National Environmental
and Engineering Laboratory
INEEL covers 571,000 acres (893 square miles) in southeastern Idaho. INEEL was established
by the Federal Government as the National Reactor Testing Station in 1949. Its purpose was to
provide an isolated location where prototype nuclear reactors could be designed, built, and tested.
Most of the reactors were phased out after completing their research mission. Programmatic
emphasis has shifted away from reactor development and defense-related work toward multi-
program research, hazardous and radioactive waste management, cleanup, and environmental
technology development.
The February 2003 revision to the Part A permit application for INEEL lists 48 RCRA units, of
which there are 20 permitted units, 27 interim status units, and 1 post closure unit. Most of the
allegations in the September 2001 petition pertain to RCRA units at INEEL's Idaho Nuclear
Technology and Engineering Center (INTEC).
From 1951 to 1991, the U.S. Department of Energy and its predecessor agencies reprocessed
spent nuclear fuel at INTEC. Reprocessing operations at INTEC used solvent extraction systems
to remove primarily Uranium 235 from spent nuclear reactor fuel. Spent nuclear fuel
reprocessing generated mixed high level and mixed transuranic waste/sodium bearing wastes.
Wastes Generated at the INTEC
Waste
Mixed
High Level
Transuranic
Sodium Bearing
Description
Waste that contains source, special nuclear, or by product material subject to the Atomic
Energy Act of 1954, and hazardous waste subject to RCRA.
Highly radioactive material resulting from reprocessing spent nuclear fuel that contains
fission products in sufficient concentrations and other highly radioactive material that is
determined, consistent with existing law, to require permanent isolation.
A specific type of waste created from the processing of nuclear materials. Transuranic
elements include plutonium, americium, curium, and neptunium.
A liquid radioactive waste which contains large quantities of sodium and potassium
nitrates. Radionuclide concentrations for liquid sodium bearing waste are generally 10
to 1 ,000 times less than for liquid high level waste.
When spent nuclear fuel processing was discontinued in 1991, liquid mixed high level waste
ceased to be generated. However, since that time, mixed transuranic/sodium bearing waste has
continued to be generated from calcine, decontamination, and other operations at the INTEC.
INTEC consists of several RCRA treatment and storage units. These units include the New
Waste Calcining Facility Calciner (Calciner) and the INTEC Liquid Waste Management System
(ILWMS). The Calciner operated from September 1982 through May 2000. Calcination is
performed by spraying wastes onto a heated, air-fiuidized bed of granular solids. The liquid
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evaporates and the radioactive fission products adhere to the granular material creating a dense
powder similar in consistency to powdered detergent. The Calcine is transferred and stored at the
Calcined Solids Storage Facilities located at INTEC.
Prior to calcination, wastes were processed in the ILWMS for volume reduction and
concentration, which make the waste more amenable to calcination. The ILWMS also reduces
the volume of hazardous liquid wastes sent to the INTEC tank farm. The ILWMS includes the
Process Equipment Waste Evaporator System (PEWE), the Liquid Effluent Treatment and
Disposal System (LET&D), the High Level Liquid Waste Evaporator (HLLWE), and associated
tanks and ancillary equipment.
The PEWE system consists of a thermosiphon evaporator and an assortment of storage and
treatment tanks. The PEWE evaporates wastes, producing concentrated wastes (bottoms) and
vapor condensates (overheads). The bottoms are transferred to tanks, then routed to either the
tank farm or the HLLWE for further processing. The overheads are sent to the LET&D for
further processing.
The LET&D system consists of an evaporator tank system and two acid fractionators. The
LET&D reduces PEWE overheads, and recovers nitric acid from PEWE overheads for potential
reuse at other INTEC facilities.
The HLLWE is a thermal evaporator which reduces liquid wastes from decontamination, waste
treatment, and other activities. HLLWE overheads are routed to the PEWE, while bottoms are
sent to the tank farm.
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Appendix C
Details on Scope and Methodology
The evaluation included a review of the September 13, 2001 petition to the Region, the Region's
March and June 2002 responses to the petitioners, and the petitioners' April and July 2002
rebuttals to the Region's responses. We also conducted limited field work at IDEQ in order to
independently assess the validity of allegations made in the petition for three selected RCRA
units at INEEL. The petition included allegations concerning INEEL's noncompliance with the
Clean Air Act. Because the petition requested withdrawal of EPA's authorization of IDEQ's
Hazardous Waste Program, only allegations that pertained to compliance with RCRA were
evaluated.
We did not review IDEQ's management of all RCRA facilities in Idaho. The evaluation scope
covered allegations discussed in the September 13, 2001, petition to Region 10 requesting
withdrawal of EPA's authorization of IDEQ's Hazardous Waste Program. As a result,
management controls for the IDEQ's Hazardous Waste Program were not assessed.
Our review was based primarily on the following criteria:
• Subtitle C of the Resource Conservation and Recovery Act
• 40 CFR Part 124, Procedures for Issuing, Revoking, Reissuing or Terminating Permits
• 40 CFR Part 264, Standards for Owners and Operators of Hazardous Waste Treatment,
Storage, and Disposal Facilities
• 40 CFR Part 265, Interim Status Standards for Owners and Operators of Hazardous Waste
Treatment, Storage, and Disposal Facilities
• 40 CFR Part 270, The Hazardous Waste Permit Program
Field work was conducted at IDEQ to evaluate IDEQ's permitting, enforcement, and public
participation processes covering the period April 19906 through July 2003. We limited our field
work to three of the INEEL units discussed in the September 2001 petition. We selected RCRA
units at INEEL which provided the broadest coverage of the major permitting and enforcement
allegations discussed in the petition. We also toured INEEL's INTEC Facility in order to obtain
a better understanding of the facility.
The units selected were the New Waste Calcining Facility Calciner and two units from the
ILWMS. These two units were the HLLWE and PEWE. The review of the PEWE also included
April 1990 was the effective date of authorization of the State of Idaho's Program to administer
requirements of 40 CFR Parts 124, 264, 265, and 270.
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the tanks associated with the unit. We evaluated allegations concerning these three units by
reviewing IDEQ Hazardous Waste Program permitting, closure, compliance, and enforcement
files covering the period April 1990 through July 2003. We also interviewed officials in IDEQ's
Hazardous Waste Program and the State of Idaho's Office of Attorney General.
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Appendix D
EPA Region 10's Response
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 10
1200 Sixth Avenue
Seattle, WA 98101
November 24, 2003
Reply To
Attn Of: OWC-
Ms. Carolyn Copper
Director For Program Evaluation: Hazardous Waste Issues
Office of Program Evaluation
United States Environmental Protection Agency
Washington, D,C. 20460
Re: Written Comments in accordance with EPA Manual 2750 on the October
24, 2003 "Draft Evaluation Report for the Review of EPA's Response to
Petition Seeking Withdrawal of Authorization for Idaho's Hazardous Waste
Program, Assignment No. 2003-000583"
Dear Ms. Copper:
In accordance with Environmental Protection Agency (EPA) Manual 2750,1 am
providing written comments as the Regional Administrator for Region 10 and as the primary
Action Official on the draft Evaluation Report (Draft Report) received by my office on October
24, 2003. The Draft Report concerned the Office of the Inspector General's "Review of EPA's
Response to Petition Seeking Withdrawal of Authorization for Idaho's Hazardous Waste
Program."1 The Region agrees with the Draft Report's conclusion that appropriate regulatory
requirements and standards were used by the Region in reaching its decision that evidence did
not exist to commence proceedings to withdraw the State of Idaho's authorized hazardous waste
program." However, the Region would like to take this opportunity to address the Evaluation
Results and Recommendations outlined in the Draft Report.
Compliance Schedule Not Required to_Resolve Calciner Permit Deficiencies (p... j.ofJMDraft
Report)
The Federal regulations address applications for RCRA Part B permits, including
information to be specified in a notice of deficiency. See 40 CFR Part 124 - Procedures for
Decisionmaking; 40 CFR § I24.3(c). The authorized hazardous waste program in Idaho
incorporated Subparts A and B of 40 CPR Part 124 by reference with certain exceptions. _&j
EDAPA 58.0L05-013 Prnnedim-s for Decision-Making (State Procedures for RCRAi or HWMA
Permit Applications). 40 CFR § 124.3(c) is incorporated by reference in Idaho's authorized
regulations. This provision states: "The Regional Administrator sjiajijrjecify. in the notice of
deficiency a datc_for submitting the necessary information." The authorized regulations in
9 Printed on ftscycltvt Paper
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Idaho's hazardous waste program define "Regional Administrator" as "Director" for this
provision. In the event deficiencies are not corrected, 40 CFR § 124,3(d), also incorporated by
reference in Idaho's authorized regulations, provides that "the permit may be denied'and
appropriate enforcement actions may be taken under the applicable statutory provision . . . .",
which could include the establishment of a compliance schedule. There is a clear requirement in
the regulations that notices of deficiency specify a date for a permit applicant to supply missing
information. However, the requirement to "specify in the notice of deficiency a date for
submitting the necessary information" cannot be read to mandate a schedule of compliance,
Although TDEQ should have specified a date in the notice of deficiency for DOE to submit the
necessary information, nothing required IDEQ to establish a compliance schedule for resolving
Part B application deficiencies. Establishment of such a schedule as an enforcement response
was available to IDEQ as a matter of enforcement discretion but was not a mandatory
enforcement response to resolve application deficiencies in the Calciner Part B application.
Nor is there a requirement on the part of the Administrator to require the State to issue a
schedule of compliance for resolving the notice of deficiency. The Administrator would, if cause
existed, presumably have discretion under 40 CFR § 271.22 to specify schedules of compliance
as a corrective action for the State to take to resolve outstanding notices of deficiency for Part B
applications. Again, however, this would be a matter of enforcement discretion and not a
mandatory response,
This issue appears to be moot, since the Draft Report acknowledges that IDEQ's
followup actions "ultimately resulted] in a consent order that established a specific schedule for
permitting the unit or submitting a closure plan." See Draft Report, page 7.
As the Region had indicated in the April 2003 "EPA Response to the EPA Office of
Inspector General; (OIGj Follow-up Questions on Region IP's Responses to the September 2001
Petition for Withdrawal of Idaho Department of Environmental Quality's (IDEQ's) Resource
Conservation and Recovery Act (RCRA) Authority (April 2003 Response), the notice of
deficiency (NOD) issued by IDEQ to DOE regarding the Calciner, Letter of December 31, 1991
"Determination thai the Part B Application for the New Waste Calcining Facility was
Incomplete" (December 1991 Letter), did not finalize a date for the subrnittal of the information
necessary to complete the application but was not silent on this issue either. EDEQ, in the
December 1991 letter, acknowledged DOE's proposed schedule (December 24,1991) for
submittal of the missing information. The December 1991 letter indicated that IDEQ had
questions and concerns with the DOE schedule that needed to be addressed, DOE's December
24, 1991 letter made reference to having contacted IDEQ concerning the development of a
schedule for submitting information to support the Calciner Part B application. A major part of
DOK's proposed schedule, indndfirl thft dftvelopmpnf of a plan for, and performance of, emission
testing. IDEQ did not formally approve DOE's schedule but work on emission testing began in
1991-1992. See attached white paper providing detailed information on the results of the 1991-
1992 activities to investigate the applicability of EPA test methods in measuring the Calciner
offgas. See alsc) attached minutes of 1995 meeting of JDEQ and DOE indicating efforts towards
30
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resolving roadblocks to emission testing of Calcincr. Risk assessment of emissions, another
major part of the schedule, were ongoing during the J 993-1997 time frame when the Calcincr
was shut-down and DOE had commenced efforts to identify and develop other technologies to
treat wastes processed in the Caleiner. See attached June 1994 Interim Report on Technologies
Evaluation. On June 1, 2000, DOE ceased operations of the Caleiner. 1DEQ conducted a public
comment period on DOE's closure plan for the Caleiner from September 16, 2002 through
October 16, 2002. The closure plan was approved on November 19, 2002, As a result, Region
10 does not believe that there is any follow-up action to be taken on the issue of a schedule of
compliance.
Compliance Schedule Not Required to Resolve Permit Deficiencies for the ETS FHLLWE} (p.9
of the Draft Report)
As discussed in the preceding section, the regulations say that a notice of deficiency
"shall set a date to submit necessary information." The regulations do not require a schedule of
compliance. Nor is there a regulation that compels the Administrator to require the authorized
permitting authority, here TDEQ, to issue a schedule of compliance to resolve the notice of
deficiency.
With respect to the ETS [HLLWE] Part B Permit application, as noted in the Region's
April 2003 Response, the DOE is already on record with a commitment "to submit a Class 3
Permit Modification Request to add the ETS [HLLWE] within 180 days of the effective date of
the Volume 14 partial permit" at the ENEEL facility. This commitment is documented in the
December 17, 2002 "Volume 14 Part B Partial Permit Application" (Volume 14) and is a direct
response to the April 12, 2002 NOD which required a schedule for permitting the ETS
[HLLWE], We believe that Volume 14 demonstrates that significant and complex units are
being addressed, with the future addition of the ETS [IILLWJBJ integrated into an overall
permitting schedule strategy. The Region has no information to suggest that this current
schedule is inappropriate or requires an enforcement response on the part of the Region or the
State of Idaho.
By focusing exclusively on the ETS [HLLWE] unit, the Draft Report does not
acknowledge significant permitting activity associated with the July 21, 1993 permit application
and the June 30, 1994 NOD. These permitting accomplishments include the Fluorinel and Fuel
Storage Facility (FAST) and ongoing permitting activities at the Liquid Effluent Treatment and
Disposal Facility (LET&D). Both of these units were included in the original Volume 10 RCRA
Part B Permit Application submitted on July 21, 1993, Based on EPA's analysis of the LNEEL
permitting workload (se,e attanhp.d Idaho Permit Events by Unit Report), we believe that Idaho
committed significant resources between the June 30, 1994 NOD and the present time permitting
units contained in the July 21, 1993 Part B penult application.
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Given that IDEQ and DOE have already established a strategy to integrate the IBLLWE
into the permitting schedule, it does not appear to the Region to be necessary to require .IDEQ to
immediately initiate a ioilowup or enforcement action on the July 30, 1994 NOD, as
recommended in the Draft Report.
Air Emission Data for PEWEJVas Not Required to be Collected JQ. JO of ^e Draft Report)
The RCRA regulations at 40 CFR § 265 Subpart AA regulate air emissions from "process
vents" for certain types of hazardous waste management units. The Draft Report cites that under
Subparl AA uwneis and operators of pioceus venls associated with a vaiiuty of tieatnient units
are subject to these air emission standards. The PEWE was identified in the Draft Report as a
unit subject to Subpart AA, however, the PEWE is part of an overall, multiple unit system for
which Subpart AA was applied. According to 41) CFR Fart 265.1032(c) a facility may use
engineering calculations to demonstrate compliance with the Subpart AA regulations. These
calculations were included on page C-23 of Attachment G in EPA's March 7, 2002 Response to
Petition and appear to meet the threshold for demonstrating compliance with the interim status
Subpart AA standards. In order to refine these calculations, IDEQ requested additional
information through the NOD process to ensure proper permitting of the unit. The use of the
NOD, issued to obtain more information to complete the Volume 14 partial permit, is not
evidence of non-compliance wjth the regulatory standards.
IDEO is Not Required to Verify Compliance of Facility with Waste Characterization
Requirements at ILWMS (p. 12 of the DraftRcport)
The Draft Report stated that "IDEQ had not verified whether waste characterization
activities for the ILWMS had met RCRA requirements." The Region does not believe that IDEQ
had to verify compliance with waste characterization requirements. IDEQ could evaluate
whether or not DOE did not comply with applicable regulations but would not be obligated to
verify compliance. The regulations at 40 CFR 265.13(a)(l) (incorporated by reference into the
authorized program in Idaho) require that before an owner or operator treats, stores or disposes of
any hazardous waste, the owner or operator must obtain a detailed chemical and physical analysis
of a representative sample of the waste. The analysis must contain all the information necessary
to treat, store or dispose of the hazardous waste in accordance with the regulations. The
regulations at 40 CFR 265.13(a)(2) (incorporated by reference into the authorized program in
Idaho) state that the analysis may include data developed under Part 261, and existing published
or documented data on the hazardous waste or on waste generated from similar processes.
As explained in the KPA Response to the EPA Office of Inspector General Questions
(pages 42-43), in June of 1993, the DOE at INEEL developed a report called the WINCO-1132
Report. This report confirmed which of the wastes that were listed on the Part A form entered, or
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did riot enter, the PEWE evaporators. In February J999, a follow up study, called the Gilbert
Report, reevaluated the WINCO-1132 and verified that only four hazardous waste codes entered
or left the PEWE. These two analyses of the data were specific enough to provide all the
information that was necessary to treat, store or dispose of the waste in accordance with the
regulations as required by 40 CFR 265. J3fa)(l) - (2). Further, the classification of wastes
provided in these reports was adequate to determine the legal methods available for treatment,
storage, or disposal of the waste, including compliance with the requirements specified in the 40
CFR Part 268 Land-Disposal Restrictions (incorporated by reference into the authorized program
in Idaho) that specify treatment standards that must be met prior to land disposal of hazardous
wastes.
During the IDEQ 2001 inspection of the INEEL, IDEQ identified several deficiencies
with waste characterization for the ILWMS. These deficiencies included: (J) failure to maintain
a waste analysis plan that specifically describee} the sampling methods that will be used; (2)
failure to state how DOE at INEEL would determine the underlying hazardous waste constituents
in the waste generated at the point of generation of the waste; and (3) failure (o maintain a waste
analysis plan that described how compatibility of'wastes will be determined. However.
notwithstanding the deficiencies identified for the ILWMS, IDEQ inspection and enforcement
personnel did find that DOE did comply with the requirement to have a waste analysis plan as
required by 40 CFR Part 265 for interim status facilities. Further, BDEQ personnel used this plan
to verify that only appropriate wastes, as defined by the waste analysis plan, were treated in the
PEWE. This verification occurred well in advance of the receipt by EPA of the Petition to
withdraw EPA's authorization of the fdaho program-
Generally, the role of the compliance inspector is to verify that the waste characterization
has been performed and a waste analysis plan has been prepared that appears to address all the
elements required by the regulations. The Draft Report itself acknowledges that the permitting
review process is the most effective means for assuring that wastes have been sufficiently
characterized and that their storage and treatment are protective of human health and the
environment.
In the case of the July 2001 enforcement action mentioned above, the IDEQ personnel
reviewing the ILWMS permit application noticed deficiencies with respect to waste analysis that
needed to be corrected prior to permitting the PEWE. IDEQ took immediate action. The Region
considers this to be a sign of program success. The Region agrees with the Draft Report that
timely permitting is essential to protecting human health and the environment. The NOD is a
tool used by the permitting agency to obtain information necessary and required for issuance of a
permit and should not be confused with whether or not a facility has complied with the
regulations requiring it to have a waste analysis plan- The Region agrees with the Draft Report
that inspections of all interim status facilities, and not just the ILWMS, should include a review
of all applicable requirements including the waste analysis requirements found al 265.13.
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Conclusions in the Draft Report
The Draft Report discusses conclusions at pages 13 to 14. The Region agrees with the
Draft Report's conclusion that the Region relied on appropriate regulatory requirements and
standards in reaching their conclusion that evidence did not exist to commence proceedings to
withdraw ihe authorization of the State of Idaho's authorized hazardous waste program. The
Region also agrees that because the evaluation in the Draft Report of IDEQ's hazardous program
activities wns limited to thrr.e units- nt TMP.F.I., and hp.nansfi TNRFT . represents only onfi of ail
RCRA facilities in the State of Idaho, the evaluators cannot conclude that weaknesses identified
in the Draft Report represent material deficiencies in the authorized hazardous waste program in
Idaho. The Region did not identify material deficiencies in the authorized hazardous waste
program in Idaho after a complete review of the allegations contained in the Petition submitted
by Keep Yellowstone Nuclear Free, Environmental Defense Institute, and David B. McCoy.
After careful consideration of the Draft Report, the Region does nut believe thai there is a need
for the State to take corrective actions to change its authorized hazardous waste program.
The Inspector General's analysis concludes "that timely permitting decisions are
necessary for ensuring hazardous waste is handled in a controlled manner that is protective of
human health and the environment." Region 10 agrees with this conclusion and notes that during
the informal investigation of the Petition EPA found that IDEQ's permitting performance
surpassed the national goal set under the Government Performance and Results Act (GPRA) and
surpassed the performance of twenty-six other states. See Attachment A of EPA's March 7,
2002 Response to Petition. Summary of Accomplishments. EPA also found that Idaho's
financial contribution to the hazardous waste program exceeded the required minimum matching
amount by seven times. See pages 26 & 27 of EPA's March 7, 2002 Response to Petition. More
recently, EPA reviewed the RCRAmfo database on November 14, 2003 to evaluate INEEL
permitting progress since EPA's December 6, 2001 analysis. (For the December 6, 2001
analysis, see Attachment A of KPA's March 7, 2002 Response to Petition. Idaho Permit Events
by Unit Report.) Our review found that the number of permitted units at the INEEL had
increased from 25 to 54; the number of certified clean closures had increased from 26 to 42; and
the number of units operating under interim status had decreased from 55 to 36, As illustrated by
the attached Idaho Permit Events by Unit Report, these permitting successes were the
culmination of multiple years of hard work and illustrate that IDEQ's decision to prioritize
permitting of units is working.
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Recommendatrons of the Draft Report
The Draft Report provides "Recommendations" at page 14. The Region carefully
reviewed each recommendation. The Draft Report recommendations are included below in
italics. The Region's response to each recommendation follows the italicized text.
1. Require that IDEQ timely addresses and resolves RCRA permit application deficiencies
for the HLLWE, Specifically, require IDEQ to immediately initiate afollowup or
enforcement action in response to DOE"s failure to comply with the July 30, 1994 NOD
for Part B permit application covering the HLLWE. This action should include a
compliance schedule for resolving the deficiencies as required by 40 CFR Part 124.
While the Region agrees that it is appi update lu eusuie that IDEQ timely address and resolve
RCRA permit application deficiencies, the HLLWE has already been addressed. A schedule
already exists for re-submission of this permit application. The Region does not agree that IDEQ
must be required to immediately initiate a iollowup or enforcement action because there is
currently no cause for such action to address this issue. Nor, as discussed earlier, does the Region
agree that a compliance schedule is required by 40 CFR Part 124.
EPA will identify permitting of the ETS [HLLWE] as a priority in the annual State Grant
Workpian. EPA will add a commitment to the State Grant Workplan specifying "submission of a
Class 3 Permit Modification Request to add the ETS [HLLWE] within 180 days of the effective
date of the Volume 14 partial permit" as a milestone under the grant.
2. Advise IDEQ that NODs issued to resolve RCRA permit application deficiencies are
required under 40 CFR Part 124 to include compliance schedules.
The Region does not agree that NODs issued to resolve permit application deficiencies are
required to include compliance schedules. As discussed earlier, the regulations require that a
date be included in the NOD by which information is to be provided. However, the requirement
to include a date is not the same as requiring a compliance schedule. At the present time, the
authorized hazardous waste program in Idaho requires that a response date be included when
issuing a NOD.
Under the currently authorized program, IDEQ is required to include a response date when
issuing a NOD. EPA will add the requirement to include a response date when issuing a NOD as
a performance measure under the State Grant Workplan which will be reviewed quarterly.
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3. Require that IDEQ inspections at INEEI, include evaluations of the PEWE and its
associated tanks to determine compliance with 40 Cl'"R Part 265 Suhpart AA emissions
requirements. In addition, advise IDEQ that inspections at INEEL continue to include
evaluations of the JLWMS to determine compliance with waste characterization
requirements specified by 40 CFR Part 265.
The Region will help ensure that the PEWE and the overall ILWMS are operated in compliance
With all applicable interim status mqnirfimfrnts by making these units a priority in the State Grant
Work plan until they arc fully permitted.
4. Verify that Recommendations 1 through 3 have been completely implemented during the
Region's next scheduled review of IDEQ's Hazardous Waste Program under the MOA.s
Require IDEQ to establish a corrective action plan for any recommendations that have
not been completely implemented.
Region 10 will track IDEQ performance, on a quarterly basis, as part of the State Grant
Workplan monitoring process.
Region/s Conclusion
The Region appreciates the opportunity to review the Draft Evaluation Report. Please
contact my staff if you have questions concerning this response to the Draft Evaluation Report.
Jeff .Hunt in the Office of Waste and Chemicals is the main contact and you can reach him at
(206) 553-0256.
Sincerely,
"lani
Regional Administrator
cc:
Michael Owen, Office of Inspector General, Western Audit Division (attachments)
C. Stephen Allred, Administrator, IDEQ (attachments)
Endnotes:
1. Background, Scope, Methodology,,and Eya]ua[jon_ResulLs_of the Draft Report - The Draft
Report, pages 2-4, explained that the evaluators focused exclusively on a single facility in Idaho,
36
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the Idaho National Environmental and Engineering Laboratory (INEEL). 1NEEL is a large and
complex Department of Energy (DOE) facility and handles a huge volume of the nation's
radioactive and mixed waste. This facility is not a common RCRA treatment, storage and
disposal facility. The size and complexity of the facility and the waste streams it handles, as well
as underlying issues of national security, are relevant to any assessment of how the State of Idaho
and the IDEQ address the implementation and enforcement of the authorized program at the
facility. While this particular facility is the largest RCRA facility in the State, it is not the only
facility Any evaluation of the authorized hazardous waste program in Idaho needs to be based
on implementation and enforcement of the program throughout the State and not at a single
facility. The standards against which an authorized program is assessed are found at 40 CFR Part
271.
The Draft Report, pages 4-13, discussed Evaluation Results. The Region believes the detailed
research and written analysis provided by the Region fully supported the Region's positions.
2. "Authorization" under RCRA allows a State's regulations which have been reviewed and
found to be equivalent to federal regulations, consistent with programs authorized by EPA in
other states and not less stringent than federal regulations concerning the same subject matter to
"supplant'" the federal regulations in that State. Authorized States have independent enforcement
authority to enforce State regulations, including State regulations authorized pursuant to RCRA.
In authorized States, EPA has independent authority to enforce authorized State regulations and
HSWA requirements for which States are not authorized. EPA cannot authorize a State program
until the State has developed its own hazardous waste program and that program is found to be
equivalent to, consistent with, and not less stringent than, the Federal regulations. States must
also have '"adequate enforcement authority" in place before they can be authorized.
37
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38
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UNITEDSTATESENVIRONMENTALPHOTECTION AGENCY
REGION 10
1200 Sixth Avenue
Seattle. WA 981 01
January 27, 2004
Reply To
AttnOf; OWC 122
Ms. Carolyn Copper
Director Fur Program Evaluation: Hazardous Wasie Issues
Office of Program Evaluation
United States Environmental Protection Agency
Washington, D.C. 20460
Re: Revisions to Region Ws November 24, 2003 Response to the Draft Office
of Inspector General Evaluation Report
Dear Ms. Copper
Following a meeting on December 11. 2003, with Michael Owen, Madeline Mullen and
Phil Wcihroch, the Region is providing the following revisions to Region 10's November 24,
2003 response.
Revised, ferorpmendation #3
The Region will require under the State Grant Workplan that IDEQ inspections at the
INEEL periodically include evaluations of the ILWMS and its associated units to
determine compliance with 40 CFR Part 265 Subpart AA emission requirements. In
addition, the Region will advise IDEO that inspections at INEEL continue to include
evaluations of the ILWMS to determine compliance with waste characterization
requirements specified by 40 CFR Part 265.
Revised Recom rnendajjon #4
Region 10 will tia^k iDEQ performance as part of the State Grant Woikplan monitoring
process. Currently, both INEEL and IDEQ send Region 10 copies of all relevant
permitting correspondence. Region 10 will review this correspondence to ensure that
both Recommendations 1 & 2 are met. Region 10 will ensure that Recommendation #3 is
met by designating the next inspection of the INEEL ILWMS as an oversight inspection,
with a Region 10 EPA inspector participating on the inspection team in an oversight
capacity. Region 10 will require IDEQ to establish an action plan for any
recommendations that have not been completely implemented.
% Printed on Regydea Paper
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The Region appreciates the opportunity to discuss these issues. Please contact my staff if
you have questions concerning this revision to our response to the Draft Evaluation Report, Jeff
Hunt in the Office of Waste and Chemicals is the main contact and you cam reach him at (206)
553-0256.
Richard Albright
Director, Office of Waste and Chemicals
cc:
Michael Owen, Office of Inspector General, Western Audit Division
C. Stephen Allred. Administrator, 1PEQ
40
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Appendix E
Idaho Department of Environmental Quality's Response
41
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42
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STATE OF IDAHO
DEPARTMENT OF
QUALITY
1410 NOftti Hjljon • Botse. Idaho 83706-1255 • (208S 373-0502 OjrK Keinplftame, Gowirnor
C Sitphen AHod Director
November 24,2003
Ms, Carolyn Copper, Director
Office of Program Evaluation (2460 T)
US EPA Office of Inspector Genera)
1200 Pennsylvania Ave., NW
Washington, D.C, 20460
SUBJECT; Office of Inspector General Evaluation Report-Assignment No. 2003-000583
Dear Ms. Copper:
This letter represents ihe Idaho Department of Environmental Quality's (IDEQ) response to the
Office oflnspecior General's Evaluation Report, Assignment No. 2003-000583, "Review of
EPA's Response to Petition Seeking Withdrawal of Authorization for Idaho's Hazardous Waste
Program," (Repon) dated October M. 200J. fDKQ appreciates the opportunity to submit this
response to correct any factual errors that may have been included in the sections of the Report
and to include comments that may he of assistance in drafting the final report.
GENERAL COMMENTS:
A. The Report devJatesJnMrv.iis staged purpose:
As a general comment, IDEQ is concerned with the overall tone and direction of the
n'fwirf in Cdfnpamnn to th« stated purpose of the IGV review The «t,ifed purpose of the
IG's review "was to determine whether Region 10's response to the September 2001
petition addressed the issues and was supported by documentation," Despite this limited
purpose, the Report's conclusions and recommendations go beyond this by making
specific findings of shortcomings in the IDEQ program and recommending corrective
actions by IDEQ rather than how USEPA should more adequately respond.
An example of this appears at page 9 under the heading, "Compliance Schedule to
Resolve Permit Deficiencies for HLLWE Not Established." There, the Report begins by
stating; "the petition alleged that a permit application has not been filed for the HLLWE
and the unit is not included in the June 2001 Part B application " Rather than noting
initially that this allegation was patently false since the HLLWE was included in the
Volume 10, 1993 Part B application, the Report launches into an analysis of compliance
with the requirements of section 124,3 and criticizes IDEQ's failure to resolve a Notice of
Deficiency (MOD) relating to this permit application since then. The Report fails to note
that the Department has addressed many of the deficiencies related to the Volume 10
Permit Application othei than thusi; related to HLLWR. For instance, the Department
resolved deficiencies related to the Flourinel and Fuel Storage Facility (FAST) and issued
a partial permit for this unit. The Report fails to note thai the LET&D and HLLWE were
43
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Letter to C, Copper
November 24, 2003
Page 2
ultimately removed from Ihe Volumfi 10 permit application and will hn addressed ttnrfer
Volume 14.
Statements in the Report such as, "our findings support concerns raised by the petitioners
related to IDEQ's failure to exercise control in requiring permits," are not consistent with
the objective of determining the efficacy of Region I0's response to the petitioners. As
well, they are not consistent with the Report's ultimate concurrence with EPA Region
10's decision on the petition The limited scope of the review make such statements
appear to be exaggerations For instance, the Report's findings regarding non-compliance
with 40 CFR § 124.3 are premised on two NODs that were authored in 1991 and 1994
respectively. The Report implies that these historical deviations from regulatory
requirements constitute a systemic and ongoing problem within IDEQ. The report,
however, notes that more recent permitting actions are in compliance. The Report also
notes that the 1G otherwise made no review of more recent documentation relating to
other units to determine compliance with this issue. To imply by way of its conclusions
and recommendations that IDEQ is continuing to deviate from regulatory requirements
despite any evidence of such deviation, is not appropriate. The Report should be written
to reflect that while there may have been minor deviations from this administrative
requirement historically, there should be no suggestion of any ongoing or systemic
problems with the IDEQ Authorised Program in the absence of evidence of such,
B. MjscharactcriMijon of IDEQ Decision Making:
Another general comment concerns the characterization of the IDEQ's prioritizing of
permitting actions. The Report suggests that IDEQ placed greater importance on other
units besides the New Waste Calcine Facility, and reprioridzed permitting work
subsequent to i 993. While the Report notes the shut-down of the Cakiner, it fails to note
that IDEQ was informed by USDOE that it might not run me CaJciner in the future and
might ultimately close the Caleiner without further operation. The Report fails to discuss
that the Department's decision to cease permitting actions at the Calciner was premised
on the non-operation of the unit coupled with doubt as to whelte it would ever ran
agam. Instead, the tone of the report suggests that IDEQ simply placed greater priority
on other projects. This implication of non-feasance on the part of IDEQ is unsupported
and does not reflect the factors weighing upon IDEQ's decision. The Report should be
modified to include more details regarding IDEQ's decision to cease permitting activity at
the Calciner during me period from 1993 to 1997.
C. MischaracterizatiQn through, factual error and omissiofl:
The Department is generally concerned with the implication of the Report that the
Department is not diligently pursuing permitting actions at the 1NEEL or is unable to
verify compliance with standards. This implication flows from the Report's factual errors
and its omission of factual details.
An example of how this nruseharacteriaation occurs from factual errors occurs at page 13
where the report states:
44
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Letter to C. Copper
November 24, 2003
Page 3
"ID£Q issued a NOB to DOF on November ?f>, 2001 requested resolution of the
compliance issues identified during the inspection and establishing a compliance
schedule. In November 2002, IDEQ established a revised corrective action
schedule for the waste characterization and other unresolved deficiencies
identified during the inspection through a consent order with DOE. The consent
order required resolution of the waste characterization deficiencies within 210
days of DOE's submission of a waste analysis plan to IDEQ. As of July 2003, a
waste analysis plan which was acceptable to IDEQ had not been received from
DOE."
This paragraph erroneously implies that the DOE has failed to comply with ffte terms of
the 2002 Consent Order, and thai Department is not enforcing the terms of a 2002
Consetrt Otdei tfegardffig the waste analysis plan. It is factually in error.
First, the Department did not issue an "NOD" as stated by the report. Rather the
Department issued an NOV. Further, the NOV did not establish a compliance schedule.
Rathci, the NOV provided DOE with 15 days within which to request a compliance
conference to discuss the violations. This is consistent with IDEQ's Enforcement
Response Policy. The result of that compliance conference, and other meetings
concerning the NOV was the 2002 Consent Order, which provided that a Waste Analysis
Plan was to be submitted » the JDEQ and any issues concerning the submission be
resolved within 210 days of its submission. There was never any "revised corrective
action schedule" as found by the Report since there was not a "corrective action
schedule" to revise. DOE submitted the WAP on April 1,2003 in compliance with the
terms of the Consent Order. IDEQ returned comments to DOE on May 29,2003. In
response to IDEQ's comments, DOE revised and resubmitted the WAP on July 2,2003.
This July 2, 2003 submittal was reviewed and accepted by the Department on August 11,
2003 approximately 133 days after its submission and fuJiy in compliance with the terms
of the Consent Order. Because of these factual errors and mischaracterizations, the report
erroneously implies the Department did not diligently pursue this issue. Such a
conclusion is unsupported by the facts.
The Report further mischaracterizes the Department's actions at INEEL by omitting many
relevant facts. The Report focuses solely on inspection reports and permitting documents
to conclude or otherwise imply that IDEQ cannot assure compliance with applicable
standards under 40 CFR § 265 and is not diligently pursuing permitting. As pointed out
more specifically below, this focus solely upon inspection reports and permitting
documents ipores the substantial amount of work that goes on outside the context of
these regulatory paradigms. For instance the Report fails to note that IDEQ meets with
DOE at least quarterly to discuss compliance issues and includes in these meetings
resolution of many issues that arise outside the scope of inspections and enforcement
actions The Report also fails tr» evaluate other regulatory decisions and decision-making
tools that inform the Department regarding compliance outside of the inspection process.
The report fails to note the ongoing work of IDEQ to assist DOE in developing one-kind
sampling methods and protocols to address the unique difficulties of compliance and
permitting in a mixed-waste environment. For example, the Report concludes that with
respect to the Calciner, the Department failed to diligently resolve deficiencies noted in
the 1991 NOD. The Report fails to note the substantial work of DOE and IDEQ during
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Letter to C, Copper
November 74, 2003
Page 4
the penod from 1991 through 1997 to resolve risk assessment issues and off-gas
sampling methods that were major obstacles to submission of a complete application by
DOE. To imply from the absence of an administrative requirement under 40 CFR 124.3
that nothing was done to resolve permitting issues at the Calciner, is a gross
oversimplification and mischaracierization of the facts. To imply from the absence of
check marks in inspection reports, the absence of compliance with standards, is in eiror.
SPECIFIC FACTUAL AND LEGAL CORRECTIONS:
1. Background Section, third paragraph.
The report cites that there are 48 regulated units. This number appears to have been
taken from an Interim Status Part A application which reflects only those units which
have interim status. The actual number of HWMA/RCRA regulated units ai me INEEL is
more accurately reflected by the EPA national RCRAlnfo hazardous waste program data
management system. As of October 2003, RCRAlnfo identifies 154 units at the INEEL.
The 48 Interim Status units reflected in the Part A application are subject to further
permitting activities, but do not constitute the only HWMA/RCRA regulated units at the
facility.
2. Evaluation Results Section, third bullet.
The Report states that "Data has not been collected to determine whether the PEWE and
associated tank systems are in compliance with RCRA emissions standards," This is
based upon a review of IDEQ inspection and permitting records from 1996 through 2003.
See Report pg. 11. The conclusion however is not supported. First, from 1993 through
1998, DOE advised the IDEQ that the PEWE was a closed-loop, *ero emissions unit with
no process vents. Thus, Subpart AA was deemed inapplicable and inspections for AA
compliance would not have occurred, In 1998, IDEQ became aware through discussions
with the Permitting program that the PEWE was not a zero-emissions unit since it had an
off-gas vent The IDEQ at that time required DOE to conduct a review of their process
knowledge and input data to confirm compliance with Subpart AA at the PEWE and
LE1&D combined. 11JEQ has since reviewed substantial information in operating
records and sampling data that is maintained by the USDOE on-site at the INEEL and has
concluded that the air emission standards of Subpart AA 40 CFR § 265.1032(a)(l) are
being met. The information provided to IDEQ consisting of process knowledge input data
including feedstock sampling and protocols, indicates that organic emissions from the
facility can not exceed 3 Ibs. per hour or 3,1 tons per year under worst case operating
conditions and maximum emissions. Off-gas sampling of the emissions from the facility
is not required where emissions can be determined otherwise. This is particularly
appropriate where there is no demonstrated ability to conduct off-gas sampling at the
units in question. The IDEQ has been instrumental in developing off-gas sampling
protocols in conjunction the National Technical Work Group for Mixed Waste, to
conduct off gas sampling designed for mixed waste environments. This includes
protocols for sampling the off-gases at the PEWE and LET&JD before fhese gas streams
enter the main stack at INEEL where they become diluted. When complete, this off-gas
sampling is expected to verify the process data calculations of emissions previously
conducted by DOE and IDEQ and compliance with Subpart AA. The Report's focus on
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Letter to C. Copper
November 24,2003
PagcS
Inspection Records as the sole evidence of compliance leads to its erroneous conclusion.
Despite the absence in inspection records, the Department has conducted a review of this
issue on several occasions and made a compliance determination regarding this provision.
The fact that the Department has requested that OOP provide this information in detail as
part of its Part B permit application does not suggest that IDEQ had not previously
reviewed this for purposes of determining compliance. DOE is required by 40 CFR §
270 to demonstrate, in the Part B application, compliance with this standard as contained
in part 264. The fact that DOE did not include sufficient information in its application as
noted by the Department does riot indicate a failure by JDEQ to have separately assured
compliance with the standard.
Idaho DEQ would suggest thai in the absence of evidence specifically indicating
regulatory non-compliance, references to missing data or incomplete regulatory
evaluations as supporting the conclusion of non-compliance is fundamentally flawed and
should not be included in the JG's report,
3. Evaluation Results, fourth bullet and final section, Compliance with Waste
Characterization Requirements at ILWMS Not Verified.
The Report stales that "the JLWMS was not evaluated for compliance with waste
characterization requirements until July 2001." The basis for this conclusion is the
absence of notes in the Inspection reports from 1989 through 200J regarding compliance
with this section, the issuance of an NOV regarding documentation requirements in 2001,
and the issuance of NODs regarding OOE's Part B permit application in 2001 and 2002
Like the Report's conclusions respecting subpart AA compliance, the absence of
information in thf.se documents does not support the conclusion reached. First, the
requirements of 40 CFR § 265.13 are applicable to the owner and operator of the
treatment facility. Thus, it is the obligation of the owner or operator to comply. IDEQ's
obligation is merely to verify compliance with this, IDEQ is not required to conduct the
characterization itself IDEQ has verified that DOE is in compliance with 40 CFR §
265.13 waste characterization requirements. In 1993 DOE developed as part of its Part
A submission a report referred to as the "WINCO-1132 Report" which verified the types
and quantities of hazardous wastes being treated at the ILWMS, In 1995, IDEQ
approved as part of Volume 4, a site wide waste analysis plan that included wastes in the
ILWMS treatment stream, This waste analysis plan was deemed sufficient to indicate
compliance with the 265.13 requirement to have sufficient chemical and physical analysis
for treatment. Since treatment in the ILWMS consists of evaporation, the ID1Q was
satisfied that characterization of the Organic Contaminants was sufficient to show
compliance with applicable standards. In tyw the Gilbert Keport verified the wastes
entering the PEWE.
The issuance of the NOV in 2001 related to DOE's failure
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Letter to C, Copper
November 24,2003
Page 6
contained in part 265. Accordingly, Jbe NODs are not indicative of a violation of section
265 requirements.
CONCLUSION:
In conclusion, JDfiQ would suggest to the Inspector General that in completing fhe final report
on assignment number 2003-000583, it should:
(I) Adhere to the objective of ihe report which was "to determine "wneiViet Region 10's response
to the September 2001 petition addressed the issues end was supported by documentation;"
(2) Review its fundamental understanding of compliance with requirements of 40 CFR Part 26S
versus 264;
(V) Refrain from making conclusions about IDBQ's ability to assure compliance ftom the
absence of inspection reccr-ds-, when this does not constitute the sole source of compliance
infonftaiion available to the Department; and;
(4) Provide more factual details concerning IDBQ's permitting and compliance activities so that
the a^ciwy's nations are nut iruBeharacieriaid by omission.
Further, the Department believes the report should note the fact that deviations from the
requirements Of 40 CFR 124.3 noted are historic in nature and th;it there does not appear »n be a
systemic failure on the part of IDEQ at present or in the past to diligently pursue permitting
actions at the INEEL.
The Report snould also recmphasize its concurrence wjtjj EPA Region ) £»'s eonciasion to deny
the Petitiort. The Report finds no fault with this determination which was the subject of this
audit. The decision by EPA Region 1 0 is supported by facts and the recwd and should not be
or queslioned by the eironeous implications of this Report-
The !DEQ committee! significant resources in support of the IC's review. This coromitnierd
involved nearly 500 hours of staff time, costing the IDEQ more than $13,000.
If you have any questions on the contents of this letter or would like further clarification, please
contact Brian R, Monson, Idaho DEQ Hazardous Waste Program Manager at <20i) 373-0490.
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Appendix F
Distribution
EPA Headquarters Offices
Assistant Administrator, Office of Solid Waste and Emergency Response (5103T)
Assistant Administrator, Office of Enforcement and Compliance Assurance (2201 A)
Director, Office of Solid Waste (5301W)
Director, Federal Facilities and Restoration and Reuse Office (5106G)
Director, Federal Facilities Enforcement Office (2261 A)
Comptroller (2731 A)
Agency Followup Official (2710A)
Agency Followup Coordinator (2724A)
Associate Administrator for Congressional and Intergovernmental Relations (1301 A)
Associate Administrator for Public Affairs (1701 A)
EPA Region 10
Regional Administrator, Region 10 (RA-140)
Director, Office Waste and Chemicals Management (WCM-127)
Audit Follow-up Coordinator, Region 10 (OPM-145)
Public Affairs Office, Region 10 (CEC-142)
EPA Office of Inspector General
Inspector General (2410)
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