September 30, 2002

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Air and Radiation Docket and Information Center (6102)
Attention: Docket No. A-99-20
U.S. Environmental Protection Agency
1200 Pennsylvania Avenue, NW
Washington, DC 20460

Re: Proposed Rules for National Emission Standards for Hazardous Air Pollutants for Site Remediation, 40 CFR 63, Subpart GGGGG
Request for Comments - 67 FR 49398, July 30, 2002

Dear Air and Radiation Docket:

Concerned Citizens for Nuclear Safety (CCNS) is a Santa Fe, New Mexico based non-profit environmental and educational organization which was founded in 1988 because of citizen concerns about the transportation of nuclear waste through our community from Los Alamos National Laboratory (LANL) to the proposed Waste Isolation Pilot Plant (WIPP). Throughout the past 14 1/2 years, our work has expanded to include analyses of and education about the environmental and public health impacts of the Department of Energy (DOE) nuclear weapons production and waste facilities in New Mexico and sites in the U.S. and around the world.

In 1994, CCNS successfully sued the DOE for Subpart H Clean Air Act (CAA) violations at LANL under the citizens' suit provisions. CCNS v. DOE, (D.N.M. 94-1039); National Emission Standards for Emissions of Radionuclides Other Than Radon From DOE Facilities, 40 CFR 61.90 - 61.97. Provisions under the Consent Decree allow for up to four independent audits of LANL's compliance with the CAA. During the past five years, the Risk Assessment Corporation, as the independent auditors, CCNS and our technical consultants, the Institute for Energy and Environmental Research (IEER), have conducted three independent audits of LANL's compliance with the CAA.

CCNS makes the following comments on the proposed Environmental Protection Agency (EPA) rule for National Emission Standards for Hazardous Air Pollutants (NESHAP): Site Remediation. 40 CFR 63, Subpart GGGGG.

1. Congress declared that one of the purposes of the CAA was "to protect and enhance the quality of the Nation's air resources so as to promote the public health and welfare and the productive capacity of its population." 42 U.S.C.A. 7401(b)(1). CCNS believes that we, as a nation, have not met this congressional goal because the public health and welfare continues to suffer; witness the rise in child and adult asthma rates.

The human health effects associated with exposure to organic hazardous air pollutants (HAP) and volatile organic compounds (VOC) include cancer and leukemia and non-cancer related-illnesses, including aplastic anemia, reproductive and central nervous system problems, upper respiratory tract irritation, liver and kidney damage, and neurotoxic effects (e.g., headache, dizziness, nausea, tremors). 67 FR 49403, I.E.

Low-level ozone created by the photochemical reaction of VOC with nitrogen oxides in the atmosphere at levels exceeding the national ambient air quality standards (NAAQS) can result in adverse health effects, such as lung structure changes and respiratory infections. Id.

2. The proposed site remediation rule exempts facilities that conduct cleanup activities involving mixed wastes (wastes containing both radioactive and non-radioactive hazardous constituents) and low-level radioactive wastes as regulated by the Atomic Energy Act (AEA) and the Nuclear Waste Policy Act (NWPA). 67 FR 49406. These facilities are "unique contamination situations" and should not be included in a general site remediation rule. 67 FR 49415, III.D. In order to protect public health and safety and the environment, EPA must regulate the site remediation activities at such facilities.

CCNS believes that EPA should not exempt facilities conducting mixed and low-level waste cleanups from the proposed site remediation rules because of the existing harm and damage to the public health and welfare, their workers, and the environment done by the facilities regulated under the AEA and NWPA. RECA, Employees Occupational Illness Compensation Program Act (EEOICPA), I-131 Fallout Studies.

For example, DOE, a federal agency regulated by the AEA and NWPA, is the single major polluter in the U.S. DOE and its predecessors have contaminated soil, surface and ground water and air, as well as the public and its workers, with short and long-lived radionuclides and hazardous materials. Id. Cleanup or remediation costs are estimated to be $212 billion. Paths to Closure, U.S. DOE, March 2000.

DOE does not know or has limited knowledge about the contents, let alone the organic materials, inside of the containers, tanks, etc. that are currently storing mixed and low-level wastes. Waste Management Programmatic Environmental Impact Statement (WM PEIS), DOE/EIS-0200-F (May, 1997). In balancing the "need for effective HAP emissions control with the overall goal of removing the threat to human health and the environment posed by hazardous substances in the remediation material," EPA should not exempt the federal government from monitoring and reporting emissions from such activities. 67 FR 49399, I.B.

Many of the DOE sites are located in windy, barren areas, such as the Pantex Plant, near Amarillo, TX, the Hanford Reservation in southeastern Washington state, the Nevada Test Site, and the Idaho National Engineering and Environmental Laboratory. Large and small site remediation activities can disperse HAP and mixed and low-level waste particulates through the wind to off-site locations, including the Columbia and Snake Rivers.

Heavy construction equipment is frequently used to move large quantities of soil, sludges and sediments contaminated with HAP. Such movement of the earth can release large amounts of HAP and VOC into the atmosphere. In some situations, wetting the excavation site can control the amount of HAP emissions. Yet, only two weeks ago, CCNS witnessed excavation activities at Hanford's Site 300, on the banks of the Columbia River, in which airborne particulates were released because DOE did not wet the soil before or while operating large construction equipment. CCNS strongly urges EPA to develop a NESHAP for excavation operations and land treatment activities. 67 FR 49414, III.C.

For these reasons, CCNS strongly urges EPA to withdraw the proposed exemption for facilities conducting mixed and low-level waste cleanups from the proposed site remediation rules.

3. The proposed site remediation rules would exempt actions under the requirements of the Comprehensive Environmental Response and Compensation Liability Act (CERCLA) and the Resource Conservation and Recovery Act (RCRA). 67 FR 49406. However, EPA uses the Off-site Waste and Recovery Operations (OSWRO) affected source regulations as justification for the exemption. The OSWRO regulations are limited to process vents, remediation material management units, and equipment leaks. 40 CFR 63, Subpart DD. CERCLA and RCRA allow for on-site waste and recovery operations that are more expansive than and may exceed the limited OSWRO requirements for affected sources. EPA is creating a loophole for activities that are broader than OSWRO activities.

In addition, the Clean Air Act (CAA) maximum achievable control technology (MACT) was promulgated on September 30, 1999 to fill the regulatory gaps in the environmental statutes and regulations, including CERCLA and RCRA, that allowed HAP to be released into the environment and threaten or impacted public health and welfare. 42 U.S.C.A. 112. The MACT was widely supported by the general public.

The proposed rule will gut the existing MACT standards, create loopholes for activities that are broader than that covered by the OSWRO regulations, and is a major step backwards in terms of public health and welfare and protection of the air, soil and surface and ground water. There are no comparable air emission regulations in CERCLA or RCRA.

Exempting CERCLA and RCRA activities will harm public health and the environment. EPA should not exempt CERCLA and RCRA actions from the proposed site remediation rules.

4. CCNS believes that EPA should not allow any exemption for short-duration site remediations. 67 FR 49407, II.A.; 67 FR 49415, III.D. EPA references spills as an example for the exemption, but does not address the issue of the transient receptor receiving a yearly dose from one exposure. This is an issue that has been raised during the CAA audits at LANL. CCNS and IEER met with EPA's Office of Air and Radiation about this issue in May 2001.

The concern is that a "transient receptor," which might be a jogger or hiker, who runs or walks past the site, and is exposed, receives a yearly dose. The exposure calculations are averaged over a year, and thus do not reflect the possibility that a person could receive a yearly dose with one exposure. Until this matter is settled, CCNS urges EPA to withdraw the exemption for short-duration site remediations.

5. CCNS questions the EPA about the proposed requirements for remediation material sent off-site and the lax requirements for transferring or receiving it. 67 FR 49409, II.F. Under RCRA, manifests are used to document the transfer and receipt of hazardous materials, under a "cradle to grave" regulatory structure. CCNS believe the site remediation exemption under the CAA will provide a loophole and allow hazardous materials to be lost in transit, causing harm to public health and welfare, unsuspecting workers, and the environment.

6. CCNS questions the continuous compliance provisions and the possibility of a facility requesting a waiver under Subpart A, 40 CFR 63.1 - 15 under the proposed rule. 67 FR 49410, II.I, J. How many Subpart A waivers has EPA granted?

7. EPA should correct its reference for major source from 40 CFR 71.2 to 71.22. 67 FR 49411, II.K.2.

8. CCNS requests that EPA reconsider its proposed rule to not regulate metals and other inorganic compounds listed as HAP in CAA 112(b). 67 FR 49413, III.B.2. Heavy metals cause harm to public health and welfare. One of the listed heavy metals is beryllium, which for a person who is genetically sensitive and exposed, a small particle will cause berylliosis.

In addition, heavy metals and inorganic compounds can damage the health of children. EPA should reexamine its justification regarding compliance with Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. CCNS believes that the two requirements in the Executive Order are met through the proposed site remediation rule exemption of mixed waste the low-level waste, considering DOE's history of contamination alone. This is a "significant regulatory action" that will have an effect on the environment and public health and safety in excess of $100 million per year. E.O. 12855, Regulatory Planning and Review. DOE is the largest polluter in the U.S. with a $212 billion price tag on its cleanup activities. At LANL and Sandia National Laboratories alone, the cleanup costs are estimated to exceed $2 billion. Paths to Closure, U.S. DOE, March 2000. These facts alone necessarily mean that DOE's activities will have a disproportionate effect on children. CCNS believes EPA is required to evaluate the environmental health or safety effects and the exemptions for mixed and low-level waste and CERCLA and RCRA activities will have on children.

9. DOE is proposing "accelerated cleanup" activities at many of its sites around the country which will create more waste and transportation of site remediation wastes. CCNS believes that the air emissions from these activities may exceed the levels established by the 1997 information that forms the basis for the rule. 67 FR 49416, IV.A. CCNS requests that EPA conduct an analysis of the site-specific Performance Management Plans to determine if in fact the 1997 information will be exceeded.

10. CCNS also requests that EPA state the basis for its statement that the proposed rule will reduce HAP and VOC emissions by 50%. 67 FR 49416, IV.A.

11. Facilities with mixed and low-level wastes, which operate portable or mobile remediation equipment, should not be exempted from the proposed rule. 67 FR 49411, II.K.; 67 FR 49415, III.G. For example, DOE is currently using mobile remediation equipment to repackage mixed transuranic (TRU) wastes at Argonne East. DOE is proposing to install two mobile units at LANL. One of the issues that was raised during the third CAA audit at LANL was whether the mobile units were required to be monitored as a point source. DOE claimed that the HEPA filters would serve as the control. However, CCNS believes that the independent technical audit team (RAC) will find that the mobile units meet the monitored point source standards and should be continuously monitored. 40 CFR 61.90 - 61.97.

12. CCNS requests that EPA determine if the organic and inorganic HAP chemicals found in the waste acceptance program (WAP) for WIPP are included in and are representative of the database for the OSWRO NESHAP which serves as the basis for the site remediation NESHAP. 67 FR 49413, III.B. CCNS believes that the WIPP WAP will not be entirely covered by the proposed rule, thus giving another example of why mixed and low-level waste should not be exempted from the proposed site remediation rule.

13. Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. Site remediation activities on tribal lands include some of the largest projects in the nation, including the remediation of land and water surrounding uranium mines and mills. CCNS urges EPA to correct its statements to reflect the actual situation. 67 FR 49417, V.C.

In conclusion, CCNS urges the EPA to withdraw the proposed exemption of mixed and low-level wastes and CERCLA and RCRA activities from the proposed site remediation rule.

CCNS is aware of other public health and environmental individuals and groups who would like to comment on the proposed rule, but, unfortunately, only learned about the proposed rule today. Therefore, CCNS respectfully requests an extension of the comment period for thirty (30) days, until October 30, 2002, so that other interested citizens and groups may comment on the proposed rule. If EPA grants the extension of time, CCNS will provide more extensive comments.

Thank you for your consideration of CCNS's comments. Should you have any questions or comments, please do not hesitate to contact me.


Joni Arends
Waste Programs Director
Concerned Citizens for Nuclear Safety
107 Cienega
Santa Fe, NM 87501
(505) 986-1973

Cc: Mr. Greg Nizich
Waste and Chemical Processes Group
Emissions Standards Division (C439-03)
Research Triangle Park, NC 27711

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