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Denies 890810 Petition for Suspension of License SNM-21. Rept Recommends That Santa Susana Field Lab Work Group Should Continue to Review Ongoing Environ Activities & That Site Does Not Represent Imminent Health or Environ Hazard
	ML20247M495
Person / Time
Site:	07000025
Issue date:	09/19/1989
From:	Bernero R; NRC OFFICE OF NUCLEAR MATERIAL SAFETY & SAFEGUARDS (NMSS)
To:	Aftergood S, Saxon R; COMMITTEE TO BRIDGE THE GAP, LOS ANGELES PHYSICIANS FOR SOCIAL RESPONSIBILITY
References
	NUDOCS 8909250235
	Download: ML20247M495 (139)
	v • d • e

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        ,- ,               Lt-w ly.y
             ~' Docket No.' 70-25 (10 CFR 2.206)

Steven Aftergood,' Executive Director

Committee.to Bridge the Gap 307 Massachusetts Avenue, NE

               . Washington, DC 20002 Richard-Saxon, President Los Angeles' Physicians for Social Responsibility
              - 1431 Ocean Avenue, Suite B '

Santa Monica, CA 90401.

Dear Messrs. Aftergood and Saxon:

Your " Petition for Suspension of License," dated August 10,1989,(" Petition") has been referred to my Office.for response. Pursuant to 10 CFR 2.206, the Petition requests that the NRC immediately suspend Materials License No. SNM-21,' possession' of held by.materials n'uclear Rockwell International at-the Santa Susana Corporation Field Laboratory(Licensee), (SSFL in author Santa Susana, California. According to the Petition, the primary bases for the request are allegations of criminal behavior made against Rockwell in an affidavit by a Special Agent of. the Federal: Bureau of Investigation concerning Rockwell's operations at: the Rocky Flats Plant,' located outside of Denver, Colorado, and Rockwell's

                " exceptionally poor environmental record" at the Santa Susana site.

Your request .for immediate suspension of License No. SNM-21 is denied. Rockwell's license for tho SSFL is limited to research, development, and fuel decladding operations with not more than 2.0 kg of Pu and 5 kg of U-235 as irradiated or unirradiated fuel in the hot cell laboratories and not more than 0.1 g Pu in any single chemistry laboratory. Since the beginning of 1986, ten NRC health and safety inspections have been conducted. Seven violations of license conditions were observed. All violations were categorized as Severity Level IV or.V violations (Level I is the most serious type violation; Level V is the ~1 east serious) which did not, individually or colbetively, warrant escalated enforcement action. Based on our licensing and nspection program, we believe the information provided to the NRC and the recora reviewed at the SSFL on licensed operations are complete and accurate, and the ectivities conducted at the SSFL are not of the nature alleged to exist at Rocky Flats in so far as they apply to matters under NRC jurisdiction. Based upon the results of NRC

             . inspections and our continuing program of unannounced inspections, we believe
             .that there'is reasonable assurance that the public health and safety are adequately protected against radiation.

With respect to environmental concerns at the Santa Susana site, in June 1989, j/ the U.S. Environmental Protection Agency (EPA) created an SSFL Site Work Group

             -to evaluate the SSFL site and to determine the site's environmental conditions, ongoing and planned environmental activities, and recommendations for future                     i actions. The NRC is a participant in the Work Group. As a result of that 8909250235 890919 PDR   ADOCK 07000025 y3 \

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c 2 evaluation, EPA, Region IX, issued a report on July 31, 1989, entitled " Santa Susana Field Laboratory Site Report for Congressman Elton Gallegly." The report recommends that the SSFL Work Group should continue to review ongoing environ-mental activities, but concludes, based on the findings and other available data, that "this site does not represent an imminent health or environmental I hazard." As you note in your Petition, the Licensee's application for renewal of License No. SNM-21 currently is being processed by the NRC. In connection with that application, three hearing requests have been filed, and some of the issues you raise in your Petition have been raised in tha existing license renewal proceeding. The appropriate forum for consideration of alt the concerns identified in your Petition relating to whether License No. SNM-I: inou?d be renewed (or suspended) is the existing license renewal proceeding. As a general rule d twactice, the Commission has stated that " parties must be prevented from ustis 1C CFR 2.206 procedures as a vehicle for reconsideration 1 ' of issues previoust decided, or for avoiding an existing forum in which they more logically should be presented." Consolidated Edison Co. (Indian Point, Units 1-3), CLI-75-8, 2 NRC 173,177 (1975); see also, General Public Utilities Nuclear Corp. (Three Mile Island Nuclear Station, Units 1 and 2) (0yster Creek Nuclear Generating Station), CLI-85-4, 21 NRC 561, 563-64 (1985); Public Service Co. of Indiana (Marble Hill Nuclear Generating Stations, Units 1 and 2), DD-79-21, 10 NRC 717, 724 (1979). The Commission's Rules of Practice, 10 CFR Part 2, provide the criteria for public participation in materials license renewal l proceedings through either intervention as a party or through a limited appearance i statement. Because of the pendency of the hearing forum in which you have the opportunity to seek to raise the concerns identified in your Petition, it would not be appropriate to consider your concerns under 10 CFR 2.206. Sincerely, pigced) Robert M. Bernem Robert M. Bernero, Director Office of Nuclear Material Safety and Safeguards cc: Rockwell International Corporation [GB/AFTERGOODSAXONLTR2.206] DISTRIBUTION: EDO 4653 NMSS 8900466 w/ incoming dDocket No.t70-2S? ~ ENRC' File Center' ~" IMNS Central File IMSB R/F

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APPLICATION AND AFFIDAVIT Tne hocky Flats Plant FOR SEARCH WARRANT U.S. Department of Energy Rockwell International Corporation CASE NUMBEA Highway 93 colcen, Colorado 80402

Jon S. Lipsky teing cuiy sworn ceccse a-c sa, t am ai Special Agent, Federal Bureau of Investigation anc nave easce :::e .e.,

t at _,, :s t e :e'sen et er J cn tne =re:erty or premise s known as . . c . ... ...... The Rocky Flats Plant, U.S. Department of Energy, Rockwell International Corporation, Highway 93, Golden, Colorado 80402, (as more particularly oescrioec in Attachment 1 incorporated here by reference) iv the - *** md District of Colorado , tnere is new ccncea.ec a cenain person of crecerty namely e.. .-- -. the property described on Attachment 2 (incorporated here by reference) n cn is

evscence cr tne means or instrumentalities of, or the fruits or'other results of, crl=1nal violations of the Resource Conservation and Recevery Act, 42 U.S.C. $ 6928(d), the Federal Water Pollution Control Act, 31 U.S.C. $$ 1311(a) and 1319(c), and le U.S.C. 55 1001 end 2. Tne facts to support a finding of Probable cause are set forth in

     -         Attacr=.ent C,                incorporated here by reference.

Centinv+c on tne attacnec sBHt a.nc mace a c. art P. erect. C No I' QYes

                                                                                            /                   -

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                                                              ~
   /        S=orn to efere e e. an: su senbec in my presence Denver, Colorado

s se C tr we sts% _

16 \ Name anc T.t s et <wcic.as Cf t.cer 5fs:Cie ci.tweicise Of f.c ar

                                                                                                           . 0 Attachment 1 The Rocky Flats Plant, located on State Highway 93 near the town of Golden, in Jefferson County, Colorado (" Rocky Flats"), is owned by and part of the U.S. D7partment of Energy (" DOE"), and is operated by Rockwell International Corporation on DOE's behalf. The entire Rocky Flats property. comprises approximately 6,550 acres, with its principal industrial plant and! operations cn approximately 400-acres. The entire property, located in Section 2, Range 70 West, Township 2 South, is bounded by State Highway 128 on the north, Indiana Street on the east, State Highway 72 on.the south and State Highway 93 on the west. The plant's principal entrance on Highway 93 is marked by an approxi-mate 10 feet x 5 feet sign, with white lettering on a light-blue background, stating " United States Department of Energy, Operated by North American Space Operations, Rockwell International." The specific property covered by this warrant are the following buildings, sites and locations, and their surrounding curtillage:

Wind Systems Building Building 910 Building 111 Building 988 Building 115 Building 991 Building 122 Building 995.(and Adjacent Building 123 Spray Field) Building 371 Landfill and Adjacent Pond Building 373 North Walnut Creek Building 374 Pond A-1 Building 443 Pond A-2 Building 444 , Pond A-3 Building 460 Pond A-4 Building 551 South Walnut Creek Building 559 Pond B-1 Building 563 Pond B-2 - Building 668 Pond B-3 Building 701 Pond B-4

                     . Building 705                   Pond P-5                                                    -

Building 708 Woman Creek Building 712 Pond C-1 Building 7507 Pond C-2 Building 770 . North Spray Field Building 771 South Spray Field Building 776 Pond 207A Building 779 Ponds 207B (North, Middle and Building 780 South) Building 881 Pond 207C Building 885 L

a l f' v w . -

                                                                  -                                                           ~

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      ^                                                     -

Attachment 2

.~

The property covered by this warrant consists of various waste (and related) materials and records pertaining to waste-handling activities, both as-more particularly described below 7 , and.in the attached affidavit of Jon S. Lipsky (Attachment 3). I. Weste Materials

As used herein, " waste" or " waste materials
means and includez all hazardous wastes, mixed hazardous and radioactive wastes (including mixed low-level radioactive and transuranic wastes), in whatever form (e.g., sludge, ash, pond crete, etc.)

and water pollutants (i.e., any solid waste, sewage, garbage, sewage sludge, chemical wastes, biological materials, or industrial waste discharged into or prepared for discharge into waters at the Rocky Flats Plant, including the A, B and C series ponds, North Walnut Creek, South Walnut Creek, Woman Creek and/o other conveyances leading to such waters), including their containers or carriers (e.g., drums, bags,. tanks, vats, boxes, filters, etc.) and the media upon which such wastes or pollutant have been discharged or otherwise deposited (e.g., soil or other ground cover, water, groundwater, creek bottoms, etc.). II. Records As used herein,

records' means and includes all form and manner of records and documents (including agreements, corres-pondence, memoranda, notes, messages,. journals, inventories, etc., asdata, disks, weL'etc.),

as computer and other electronic information, and includes:

                                                                 ._              1. All blueprints, architectural, engineering or other drawings or diagrams; engineering or technical specifications or performance evaluations; and photographs of: hazardous or radio =

active mixed waste treatment, storage, disposal or recycling facilities used or located at the Rocky Flats Plant since Nov-ember 1980, including, but not limited to, containers; tanks; surf ace impoundments; waste piles; land treatment facilities; landfills; incinerators; nuclear material recovery units for the t processing of

mixed wastes;* thermal treatment units; chemical, physical and biological treatment unita; waste water and sewage treatment facilities; underground sumps, pipes, lines, contain-mer.t areas, and other impoundments and conveyances for the handling or movement of hazardous or " mixed" wastes.

2. All records reflecting the time, quantity or manner of ' the treatment, storage, disposal recycling (as used herein

                                                                         " recycling

includes
recovery" o,f~ materials) or discharge of hazardous or mixed waste or pollutants at the Rocky Flats Plant since Nove=ter 1980, including but not limited to incinerator or other treatment unit operating records or logs; test burn records; records reflecting storage accu =ulation dates and inventories; certificates of disposal or destruction; and waste

4 water records. and sewage treatment plant discharge, sampling and analysis

3. All records reflecting the transportation into or out of the Rocky Flats Plant since November 1980 of hazardous or mixed wastes, including, but not limited to, hazardous waste manifests, bills of lading, invoices, shipping papers and driver's legs. -

, 4.- All records reflecting payment by or to'Ro~ckwell International Corporation (Rockwell) or the United States Department of Energy (DOE) for the transportation, treatment, disposal or recycling of hazardous or mixed wastes generated or located at, or brought to the Rocky Flats Plant since November 1980. -

5. All records reflecting studies, inspections, investi-gations, sampling or monitoring by or on behalf of Rockwell or the DOE regarding the treatment, storage, disposal or recycling of hazardous or mixed wastes or the discharge of pollutants at the Rocky Flats Flant since November 1980, including but not limited tot 1) reports prepared pursuant to DOE Orders estab-lishing procedures for hazardous and mixed waste management such as annual hazardous waste management reports, compliance status reports, compliance action plans, waste management system performance assessments, and waste management plans, 2) other.

such records pertaining to groundwater contamination; groundwater monitoring; incineration of wastes; recycling or recovery of hazardous or mixed wastes; discharge of pollutants into ponds or creeks; or environmental or health impacts ensite (including on workers at the Rocky Flats Plant) or offsite; and 3) other such records concerning waste stream identification and characteri-

 . zation.

6.. All records reflecting communication by Rockwell or DOE, including but not limited to internal communications or communications between Rockwell and DOE, regarding the compliance status of the Rocky Flats Plant with federal, state and local environmental requirements.

7. Other records demonstrating knowledge or awareness on the part of Rockwell or DOE or Rockwell employees or contractors of the nature of the hazardous or mixed wastes or pollutants at the Rocky Flats Plant and/or of laws regulating their generation, transportation, treatment, storage, disposal or recycling.

8. All records concerning eva' cations by DOE or others of Rockwell's performance of its environmental duties at the Rocky Flats Plant, including but not limited to records relating to bonus payments to Rockwell from DOE.

                                     -  2-

                                 ~    i         9. Documents explaining operation of any computer syste containing any of the above information.

10. Documents containing the names, addresses, and telephone numbers of all DOE or Rockwell employees who are or have been employed at the Rocky Flats Plant at any time since November 1980 and the job descriptions or other material defin the nature and scope of each employee's responsibilities. .

The property covered by this warrant relates to the facilities and bodies of water located outdoors (as listed on Attachment 1) and to individual buildings located at the Rocky Flats Plant as follows: Wind Systems Buildine Records -- All records described in Paragraphs 1-9 above. Buildine 111 (Administrative Offices) Wastes - Developer / fixer" waste and all other waste materials- designated for treatment, storage, disposal or recycling (hereinafter "TSDR*) in Buildings 928 or 995. Records -- All records described in Paragraphs 1-10 above Buildine 115 (DOE Aree Officel Records -- All records described in Paragraphs l-10 above Buildine 122 (Medical Buildinci Records -- All records described in Paragraphs 1-9 above. Buildine 123 fHealth/ Environment Buildinci Records -- All records described in Paragraphe 1-9 above. Buildine 371 (Plutenium Recovervi Jaste -- All waste stored or designated for storage in Building 371. Records -- All records pertaining to the storage of waste Building 371. Buildine 373 (ceoline Tever & Pump House) Waste - *Dvaporator water" waste, ' drips and leaks" west. and all other vaste designated for TSDR in Building 373, 988 o 995.

                                                                           -  3-

                                                                                                                   -   .. i Records -- All records pertaining to the' generation or TSDR of " evaporator water," -drips and leaks and other wastes designated for TSDR in Buildings 373, 988 or 995.   ,

Buildine 374 (Lieuid Wasts Treatment Facility) . Wastes - " Evaporator water" waste and all oth'et wastes designated for TSDR in Buildings 373, 443 or 995. Records -- All records pertaining to the generation or TSDR or evaporator water" or other wastes designated for TSDR'in Buildings 373, 443 or 995. Buildine'443 (Steam Planti Wastes - " Evaporator water" waste and all other wastes designated for TSDR within Building 443.

Records -- All. records pertaining to the TSDR of " evaporator water or other wastes designated for TSDR in Building 443. l Buildinc 444 (Production Ooerations) Wastes -

Blowdown waste" and all other wastes designated for TSDR in Buildings 988 or 995.

Records -- All records pertaining to the generation or TSDR of -blowdown vaste or other waste designated for TSDR in j Buildings 988 or 995. Buildino 460 (Non-Nuclear Manuf acturine) 1 I Wastes - "Used kimwipes," " cooling tower blowdown" and all other wastes designated for TSDR in the landfill or Buildings 988 or 995. Records -- All records pertaining to the generation or TSDR of used kimwipes

cooling tower blowdown
or other wastes designated for TSDR in the Jandfill or Buildings 988 or 995 Buildino 551 fGeneral Warehouse) l Wastes - "Kimwipes/ degreasing residues" and all other l wastes designated for TSDR in the landfill, Records -- All records pertaining to the generation or TSDR of *kimwipes/degressing residues or other wastes designated for TSDR in the landfill.

                       ,                                                                                                                                                                                                                                                                 5 Buildine 559 (Plutonium Analytical Lab)

Wastes - *Non-line combustibles designated for TSDR in Building 771. and all other wastes Records -- All records pertaining to the generation or TSDR of Building 771.

                                                                                                                                        .*non-line          combustibles

or other wastes designated for TS6R in_

1Buildine 563 (Cooline Toweri - Wastes - " Sump sludge" and all other wastes designated for TSDR in the landfill. Records -- All records pertaining to the generation or TSDR-of " sump sludge" or other wastes designated for TSDR in the landfill. Buildine 668 (Drum Certification) Wastes -

rags with methyl alcohol" and all other wastes designated for TSDR in the landfill.

Records -- All records pertaining to the generation or TSDR of

rags with methyl alcohol" or other wastes designated for TSDR in the landfill.

Buildine 701 (Process Development) Waste - " Liquid waste" and all other wasted designated for TSDR in Buildings 988 or 995. - Records -- All records pertaining to the generation or TSDR or 988'or 995.

                                                                                                                                      '  liquid waste

or other wastes designated for TSDR in Building -

Buildine 705 (Coatine Laboratory) Wastes - "Kirwipes or other wastes designated for TSDR in the landfill. Records -- All records relating to the generation or TSDR of

                                                                                                                   *kimwipes' or other wastes designated for TSDR in the landfill.                                                                                                                    ,

Buildine 708 (comoressor Buildine) Waste - " Rags with freon /TCE" and all other wastes designated for TSDR in the landfill. l

                                                                                                                                                                                                                                                       -                     5-1 l

1

Records--AllrecordspertainingtothegenerationorTSDk of rags with freon /TCE" or other wastes designated for TSDR in the landfill. Buildine 712 (Cooline Toweri l Waste - " Sump sludge,- " water blowdown and all other . vastes designated for TSDR in the landfill or Buildings 988 or 995. Records -- All records pertaining to the gene' ration or TSDR of sump sludge," water blowdown" or other wastes designated for TSDR in the landfill or Buildings 988 or 995. Buildine 750T (Trailer Complexi Waste - " Soiled kimwipes," "kimwipes* and all other wastes designated for TSDR in the landfill. Records -- All records pertaining to the generation or TSDR of " soiled kimwipes," "kimwipes or other waste designated for TSDR in the landfill. Building 770 (Pipe Fabrication Shop) Waste - -Combustibles,- rags and all other wastes designated for TSDR in the landfill. Records -- All records pertaining to the generation or TSDR or combustibles," " rags" or other wastes designated for TSDR in the landfill.

        -                                                              Buildine 771 (Plutonium Recoverv Taellity)

Waste - "Non-line combustibles,"

trash," "burnables
and *

                                                                        *kimwipes,    and all other wastes designated for TSDR within Building 771.

Records -- All records pertaining to the TSDR of "non-line combustibles,** trash," *burnables," and -kimwipes" and other wastes designated for TSDR within Building 771. Buildine 776 (Production Support Buildinci Waste -- All hazardous and mixed waste related to the fluidized bed incinerators. Records -- All records described in paragraphs 1-9 above, including but not limited to all records pertaining to the incineration of waste in the fluidized bed incinerators.

E .. i . e Buildine 779 (Plutonium Develcoment) Waste - "Non-line generated burnables," " trash,"

                                                           *burnables," "kimwipes," " water chiller filters- "Kathene system condensate" and all other wastes designated for TSDR in the landfill or Buildings 771, 288 or 995.                             ,

Records -- All records pertaining to the generation or TSDR of

trash," "burnables,- akimwipes cr "Kathene system -

condensate" or any other wastes designated for TSDR in the landfill or Buildings 771, 988 or 995. Buildine 780 (Paint Storace Shed) Waste -

Rags with TCE* and all other wastes designated fos.

TSDR in the landfill. Records -- All records pertaining to the generation or TSDR or " rags with TCE" or other wastes designated for TSDR in the landfill. Buildine 881 (Manufacturing and General Suocort) Waste - ." Waste beryllium samples,-

beryllium chips" " air washer blowdown," cooling tower blowdown" or all other wastes designated for TSDR in Buildings 988, 991 or 995.

Records -- All records pertaining o the generation or TSDR of waste beryllium samples,- beryllium chips," " air washer blowdown,' cooling tower blowdown" and other wastes designated for TSDR in Buildings 988, 991 or 995. Buildine 885 (Paint and Oil Storace) Waste -

Rags
and other wastes designated for TSDR in the landfill. .

Records -- All records pertaining to the generation or TSDR of.* rags

or other wastos designated for TSDR in the landfill.

Buildine 910 (Reverse Osmosis Planti Waste -- All wastes (including water pollutants) designated for TSDR by or discharged from Buildings 910, 988 or 995. Records -- All records pertaining to the generation or TSDR' of wastes by or the discharge of water pollutants frem Buildings 910, 998 or 995 or the transfer of such wastes or pollutants to Buildings 988 or 995. I l 1 f

o ! e = e. s

                                                                         'Buildinos 988 and 995 (Sewaoe Treatment Plant)

Waste - Drips and leaks,- cooling tower blowdown,-

                                                                          -liquid waste,- water blowdown," air washer blowdown," Kathene system condensate,- air washer blowdown,-

developer / fixer- l waste, -blowdown waste,- -dumpster waste and all other wastes

                                                                         -(including water pollutants) designated for TSDR within Buildings 988 and 995 or discharge from the landfill or Buildings 988 or 995.

Records -- All records pertaining to the generation or TSDR of -drips and leaks,- cooling tower blowdown,. liquid waste,- water blowdown,- air washer blowdown," Kathene system ecndensate,

air washer blowdown, developer / fixer waste,

                                                                          -blowdown waste,- -dumpster waste and all other wastes (including water pollutants) designated for TSDR at the landfill or within Buildings 998 or 995 or discharged from Buildings 988 or 995.

Buildine 991 (Production Control Product Warehouse) Waste - waste beryllium samples,- -beryllium chips and any other wastes designated for TSDR within Building 991. Records -- All records pertaining to the TSDR of waste beryllium samples,- -beryllium chips or other hazardous or mixed wastes designated for TSDR within Building 991. Pursuant to this warrant, Special Agent Lipsky and other authorized personnel are specifically ampowered to:

a. Take samples of hazardoue and mixed wastes from buildings facilities, units and areas specified above.

b. Take samples of water or other liquids in, and sediments from any specified ponds, surface impoundments, cresks, discharge ponds, or other bodies of water on Rocky Flats Plant.

c. Take samples of any adjacent dead or stressed vegetation.

d. Take sa=ples of liquids, sludges, or sediments, from any or all sanitary sewers located on the Rocky Plats Plant.

e. Use remote sensing devices to determine the location of hazardous or mixed wastes or pollutants as necessary to

                                                                                . carry out this warrant.                                               l

f. Search for and seize any records or documents which pertain to the illegal treatment, storage, disposal or ,

i

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                         ~   a.

ATTACIDEv. r 3

1. INTRODUCTION 1.1. - Your affiant is a Special Agent with'the Federal ,

Bureau of Investigation ("FEI") assigned at Denver, Colorado. I have been an FBI agent since February, 1984. The FBI derives its general investigatory jurisdiction from Titles 18 Title 28, U.S.C. S 535 and 28 of the United States Code. gives the FBI jurisdiction to investigate alleged crimes involving United States Government officers and employees, and 42 U.S.C. S 2271(b) gives the FBI primary jurisdiction concerning the investigation of alleged crimes committed at United States Department of Energy (" DOE") facilities. The FBI has concurrent jurisdiction with the United States Environmental Protection Agency (" EPA") to investigate the alleged violation of federal environmental laws.

                         ...            1.7     I have attended three different training sessions concerning the investigation and prosecution of environmental crimes, for a total of 13 days of intensive course work, lectures and seminars on the Resource Conservation and Recovery Act (* RCRA *), the Federal Water Pollution Control Act (popularly known as the " Clean Water Act" or " CWA"), and other federal environmental laws. I have been the lead investigator or a substantial participant in at least 13 investigations of environmental crimes. I have been a lecturer or speaker at three FBI training conferences

ATTACEMENT 3

1. INTRODUCTION 1'

l .1. - Your affiant is a Special Agent with'the Federal , Bureau of Investigation (* FBI") assigned at Danver, Colorado. I have been an FBI agent since February, 1984. The FBI derives its general investigatory jurisdiction from Titles 18 and 28 of the United States Code. Title 28, U.S.C. S 535 gives the FBI jurisdiction to investigate alleged crimes involving United States Government officers and employees, and 42 U.S.C. 5 2271(b) gives the FBI primary jurisdiction i concerning the investigation of alleged crimes committed at United States Department of Energy (" DOE *) facilities. The FBI has concurrent jurisdiction with the United States l ! Environmental Protection Agency (" EPA") to investigate the i alleged violation of federal environmental laws. l.2. I have attended three different training sessions concerning the investigation and prosecution of environmental crimes, for a total of 13 days of intensive course work, lectures and seminars on the Resource Conservation and Recovery Act (* RCRA *), the Federal Water Pollution Control Act (popularly known as the " Clean Water Act" or

CWA *), and l other federal environmental laws. I have been the lead investigator or a substantial participant in at least 13 investigations of environ = ental crimes. I have been a lecturer or speaker at three FBI training conferences

 .                                                                                   9
                                                                         .*            s i

concerning investigation of environmental crimes. I have received five commendations for my work in this area. ' 1.3. The other lead investigator concerning this matter is William T. Smith. Mr. Smith is a Special Agent with EPA's Office of Criminal Investigations (*OCI") and is also assigned at Denver, Colorado. Agent Smith has been an OCI I Special Agent since November 1984, and also has seven years' experience in other federal law enforcement. In addition to his extensive training concerning the investigation of environmental crimes, Agent Smith has been involved in numer-ous. environmental investigations, has taught at five FBI training conferences concerning environmental crimes and has supervised other OCI agents in investigating such cases. 1.4. This Application is based upon the investigation conducted to date by the FBI and the EPA, including Special

Agent Smith and EPA's National Enforcement Investigations , Center, together with the United States Department of Justice and the United States Attorney's Office for the District of Colorado. The following stataments are based upon a review

of numerous studies, reports and docu=ents from federal, state and local governments and agencies, including the EPA and the Colorado Department of Health (*CDH*), as well as materials submitted to various agencies by, or otherwise obtained frem or concerning DOE and Rockwell International Corporatic7 (*Rockwell"). The following statements are also 2-

m. .. . . ,

based upon my own physica:. observations and those of others, as well as interviews conducted with various people. All legal analysis is based upon the advice and assistance ci the

Department of Justice and-the United states Attorney's l All referenced exhibits are incorporated as 'part of Office. this Application. i The Denartment of Enercrv 1.5. DOE is a department and agency of the United States Government. Prior to DOE's formation, the Atomic Energy Act of 1954 (*AEA*), 42 U.S.C. 5 2140, established the Atomic Energy Commission (*AE0*) and made it responsible for making nucleet material for defense programs, as well as developing atomic energy for peaceful purposes. Under the AEA, the AEC had regulatory control over nuclear defense facilities and the materials generated there. The Energy Reorganization Act of 1974, 42 U.S.C. S 5801, abolished the AEC and established the Energy Research and Development Administration ("ERDA*), which assumed responsibility for producing nuclear material for defense purposes. ERDA's responsibilities were transferred to DOE pursuant to the l Department of Energy Organization Act of 1977, 42 U.S,C. S 7101. 1.6. The basic mission of DOE's defense activities is to produce nuclear r.aterial for weapons and naval fuel, and to r.anufacture nuclear weapons ce=ponents. DOE is also 1 L-____-_______ _ _ - .

 ; . .:                          .c   ;.

4 . l engaged in research, development and testing programs for . nuclear weapons and power. systems. Most of DOE's defense activities are carried out at approximately 16 facilities

across the United States. The Rocky Plats Plant 1.7. One of DOE's nuclear weapons facilities is the Rocky Flats Plant (" Rocky Flats"), located approximately 16

miles northwest of. Denver, Colorado, in northern Jefferson County between Golden and Boulder. (Exhibit 1.) Based on 1980 census data, approximately 1.8 mi' lien people live within 50 miles of the plant. 1.8. Rocky Flats is a United States Government-owned, private contractor-operated facility. _ The plant is owned by, and part of DOE, and is operated by Rockwell on DOE's behalf. Rocky Flats is administered by DOE as part of its Albuquerque Operations office, based in Albuquerque, New Mexico. DOE's on-site management is known as the Rocky Flats Area office and has the street address: Rocky Flats Plent, Highway 93, Golden, Colorado 80402. Dog employs approximately 60 people at Rocky Flats. 1.9. . Rocky Flats was built in 1951 and began opera- 1 tions in 1952. The total site now ccvery approximately 6,550 acres and includes more than 100 buildings and facilities. (Exhibit 2.) Dow Chemical Company operated the plant until

                                                                                                         .   .o June 30, 1975.       Rockwell International Corporation has operated the plant from 1975 to the present time.

1.10. In a submission to the EPA on November 19, 1980,

DOE Area Manager Don Ofte described Rocky Flats as follows: The Rocky Flats Plant is a Government-owned facility with a primary mission of producing plutonium components for nuclear weapons. Produc-tion activities involve the fabrication of pluton-ium, uranium, beryllium and stainless steel parts. Other activities include chemical processing to recover plutonium from scrap material, R&D work in metallurgy, machining, assembly, nondestructive testing, coatings, remote engineering, chemistry and physics. Parts made at the plant are shipped elsewhere for final assembly. 1.11. *The Rocky Flats Plant is the focal point for fabricating nuclear [ weapons) components and ptocessing plutonium materials." United States General Accounting Office ("GAO"), Alternatives for Relocatino Rockv Flats Plant's Plutonium ooerations (April 1967), at 11. Fabrication of 4 nuclear components involves weapons-grade plutonium, which is pure plutonium from nuclear reactors or plutonium that has been processed and purified. Finished plutonium

triggers * -

used to detonate nuclear weapons - are shipped to the Pantex Plant in Amarillo, Texas, for final asse=bly into weapons. Plutonium-containing residues and wastes are collected from the fabrication process at Rocky Flats and reprocessed for - further use. Plutonium residues or wastes from other DOE facilitier, as well as plutonium components-from retired b L i

7%

c. 1. -

nuclear weapons, are also sent to Rocky Flats from across the United States (including DOE's Savannah River nuclear

reactors in Aiken, South Carolina,1the Hanford reactor at

Richland, Washington, and DOE's-facilities at Los Alam'os, New Mexico), where the plutonium is extracted and purified.

Rockwell International Corocration

                                             ,   1.12. Rockwell is a Delaware corporation first established in 1928, with its corporate headquarters in El Segundo, California.      In a Dun & Bradstreet report obtained on November 10, 1988, Rockwell indicated total sales of approximately $11.9 billion and net income of almost $81'2 million for the year ending September 30, 1988.      Share-holders' equity as of June 30, 1988, was approximately S3.58 billion,

u. 1.13. Rockwell has managed, operated and maintained Rocky Flats for and on behalf of DOE since June 30, 1975, under a contract with DOE dated January 8, 1975. Rockwell currently operates Rocky Flats pursuant to a Supplemental Agreement effective January 1, 1989 (Modification No. M124 to Contract DE-AC04-76DPO3533) (the ' DOE-Rockwell Agreement *).

Rockwell amploys approximately 5,300 people at Rocky Flats. 1.14. Under the DOE-Rockwell Agreement, DOE pays Rockwell the costs of cperating Rocky Flats, plus an annual fee. The fee is ce= prised of a guaranteed base payment and a bonus tied to Rockwell's performance, as determined by DOE.

                                                                                                                                                          ..  .n The estimated cost of Rockwell's operation of Rocky Flats from October 1, 1985, to September 30, 1986, was $493 million.                           _

Environmental. Health and Safety Regulations 1.15. DOE's operations are "potentially one of the more dangerous industrial operations in the world." GAO, Environmental Issues at DOE's Nuclear Defense Facilities (September 1986), at B. DOE's operations, including those at Rocky Flats, involve widespread use of toxic and hazardous materials and dangerous chemical processes, as well as vast amounts of radioactive material, such as plutonium, uranium and tritium. The hazardous chemicals include acids, nitrates, reactive metals, solvents, heavy metals (e.g., mercury), beryllium and high explosives. Id. Plutonium is a heavy, radioactive man-made metallic substance. Plutonium is toxic if inhaled, ingested or absorbed through an open wound. It is a powerful carcinogen and one of the most toxic sub-stances known to man. 1.16. The AIC, ERDA and DOE have generated and handled

  ,                       radioactive and hazardous wasten and other pollutants at nuclear facilities for more than 40 years.           Co=mencing at various times, such activities have become, cnd are governed by a number of environmental, health and safety statutes and regulations, as well as DOE's (and its predecessor agencies')

policies, orders and regulations. As discussed in greater 3 L.. '- detail in Part 3, radioactive solid wastes and radioactive liquid effluents are primarily regulated under the Atomic i l Energy Act. Nel-radioactive, but hazardous solid wastes are j governed by RCRA, 42 U.S.C. S 6901 si agg., and.non-radioactive liquid effluents discharged into waters of the ~ l United States are regulated under the Clean Water Act, 33 U.S.C. S 1251 11 112 Air emissions, both radioactive and non-radioactive, are governed by the Clean Air Act, 42 U.S.C. S 7401 at geg. 1.17. Health and safety concerns at DOE facilities, including Rocky Flats, are governed by DOE orders and regula-tions promulgated under the Atomic Energy Act, 42 U.S.C. S 2201(i)(3). While the Occupational Safety and Health Act (* OSHA *), 29 U.S.C. S 651, does not apply of its own force, DOE has largely adopted OSHA's regulations as its own, including Title 29, Code of Federal Regulations, Parts 1910 and 1926. Buildines, Records and Samoles 1.18. As stated in i 1.9, Rocky Flats covers approxi-mately 6,550 acres and includes more than 100 buildings. Buildings are designated by a three-digit number, such as

                  " Building 771* cr " Building 995.*   (Exhibit 2.)     Particular operations are identified with particular buildings.

1.19. Your affiant's investigation involves past and ongoing activities et Rocky Flats, of a protracted and

continuous nature. The documents and other information covered by the requested warrant are regularly maintained

                                               ~                                   ~

business and regulatory re ords which can reasonably be

expected to be maintained at Rocky Flats, and many regula-tory records are required to be maintained. Ete,.t.:g:, 1 3.9. The investigation also involves a course of conduct, or ongoing and repeated instances of alleged criminal viola-tions, rather than an isolated instance. 1.20. Based on your affiant's review of Rockwell and DOE documents, and interviews with two former Rocky Flats employees who were personally familiar with Rocky Flats' operations and with EPA Region 6 regulator Nathaniel J. Miullo,V Rocky Flats' relevant records, documents and in-formation can reasonably be expected to be found at several locations. First, most buildings maintain their own manage-ment office where records concerning that building's opera-tions are located and maintained. Records and documents concerning the incinerator operations in Building 771, for M As EPA Region 8's " Rocky Flats Project Coordinator," Mr. Miullo is EPA's lead regulator concerning Rocky Fl'ocs' environ-mental compliance activities. He is a trained environmental engineer and har been an EPA Region 8 regulator since January 1981. He was Region 8's lead RCRA regulator concerning the Rocky Mountain Arsenal in 1985, and has been closely involved with environmental regulation at Rocky Flats since May 1986. He has conducted hundreds of RCRA compliance inspections, technical i proposal reviews and enforcement-related tasks, and has toured, inspected or otherwise been at Rocky Plats approximately 30 times. He is personally familiar with the plant's operations and its environmental-related activities. l i

          'e I

L example, are maintained in that building. Second, a cen-tralized depository of Rocky Flats' records and documents is located in Building 111, which contains Rockwell's principal on-site management and administrative offices. Third, another centralized depositcry of documents and information is DOE's " Area Office" at Rocky Flats, located in Building l 115, and the DOE

Library," located in Building 706.' Docu-ments and'information particularly relevant to your affiant's investigation are maintained by Rocky Flats' Health, Safety and Environment personnel in Buildings 122 and 123, and also in the Wind Systems Building, and by the Waste operations Group in Building 776.

1.21. There is also good reason to believe that various physical, chemical and environmental evidence may be found at Rocky Flata. Various waste streams can reasonably be expected to be evidenced by physical and chemical processes and related wastes, residues and other evidence. Further, . many chemicals have a protracted life in the environment and can reasonably be expected to be detected even if they were processed, discharged or otherwise deposited several years ago. 1.22. As discussed in greater detail in Parts 3-10, there is probable cause to believe that records, documents and other information (including physical, chemical and environ = ental evidence) covered by the requested warrant may

E L . . be located in the various operatio'nal buildings, in Buildings 111, 115, 122, 123, 706, 776 and the Wind Systems Building, and at various outside locations at Rocky Flats, including

l surface impoundments, creek's, landfills, etc. l . - h 2. SYNOPSIS OF PROBABLE CAUSE 2.1. While Rockwell and DOE officials during the early and mid-1980s repeatedly stated to the public and certified to government agencies that Rocky Flats was in compliance with federal and state environmental laws, a DOE memorandum stated in' July 1996 that Rocky Flats was -in coor condition eenerally in terms of environmental compliance, that its permit applications were "crossiv deficient- and that some u of its waste facilities were "catentiv 'illeoal.'- July 1986 DOE Memorandum, at 4. A GAO report similarly concluded in October 1988 that -(environmental contamination at [ Rocky Flats) is a significant problem, and reported that "it will cost 5323 million through fiscal year 1995 for corrective actions to reduce sources of and clean up existing environ-mental contamination.- GAO, Summary of Maior Problems at DOE's Rocky riats Plant (October 1988), at 15. 2.2. Your affiant's investigation to date (together with Special Agent Smith and others) confirms that environ-mental and other crimes have probably occurred at or concern-ing Rocky Flats, and the following paragraphs summarize the 4 i l

{

 *\                                               :.       .

L' ... . probable cause supporting the warrant, which is discussed'in greater detail in Parts 3-10. Illeoal Treatment. Storace and-Disposal of Hazardous and Mixed Wastes . 2.3. A careful review of voluminous documents sub-mitted by Rockwell and DOE to EPA and CDH since 1986 reveals that Rocky Flats generates at least 35 to 40 ha'zardous or mixed wastes which are sent for

final disposal" to various on-site facilities which do not have RCRA permits or " interim status." .The knowing treatment, storage or disposal of hazardous or mixed wastes without a permit or interim status is a RCRA felony, in violation of 42 U.S.C. S 6928(d)(2).

Illecal Treatment of Hazardous and Mixed wastes in an Unpermitted Incinerator The investigation to date, including an examina-2.4.

tion of documents obtained from DOE and/or Rockwell, estab-lishes probable cause to believe that Rocky Flats is using an outdated and unpermitted incinerator in Building 771 to illegally treat" at least nine hazardous or mixed wastes in violatien of the Resource Conservation and Recovery Act, 42 U.S.C. 5 6928(d)(2). 2.5. While permit applications submitted by DOZ and Rockwell over the past several years contemplated the incineration of a large variety and substantial quantity of hazardous and =ixed wastes in a different incinerator in

e' De Building 776, that incinerator, according to DOE and Rockwell, has never been operational. ; J 2.6. Based upon the new incinerator's unavailability and mounting problems with Rocky Fiats' legal capacity for - 1 storing hazardous and mixed wastes, there is probable'cause to believe that the Building 771 incinerator has been illegally operated to treat or dispose of hazardous or mixed l wastes, without a permit or interim status, in violation of 42 U.S.C. S 6928(d)(2). l Illecc1 Discharce of Pollutants 2.7. Walnut Creek and Woman Creek are two surface waters which cross the Rocky Flats property. Both are

navigable waters within the CWA's meaning, and both lead directly to public drinking water supplies at Great Western Reservoir and Standley Lake, respectively. On November 15 and 16, 1988, Rocky Flats discharged various chemicals into Walnut Creek which are not included in, or permitted by its CWA permit.

2.8. DOE's CWA permit also requires prior notification to EPA concerning any process change which will result in the discharge of new or different pollutants, such as the pollu-tants found in the November discharges, but such notification was not given. Further, FBI surveillance on three days in December 1988 revealed discharges from Rocky Flats' sewage treatment plant into Woman Creek on each day. DOE is not D-t permitted to discharge pol-lutants from its sewage treatment . plant directly into the creek. . 2.9. All of the above are apparent violations of the l CWA, which provides criminal penalties for the knowing or negligent discharge of pollutants without a permit or in violation of permit conditions. Egg.33 U.S.C. 55 1311(a) and 1319(c). False Statements and Concealment 2,10. Consistent with their efforts to keep the public from knowing "iust how really bad the site is," July 1986 DOE Memorandum (emphasis added), there is probable cause to believe that Rockwell and DOE officials have knowingly and falsely stated Rocky Flats' compliance with environmental laws and regulations, and concealed Rocky Flats'

serious .

contamination.- Jg. 2.11. While DOE concluded in December 1988 that ground-water contamination at Rocky Flats was the greatest single environmental hazard at all of DOE's nuclear weapons facili-ties, there is probable cause to believe that Rockwell and DOE officials falsely certified in November 1985 that Rocky Flats was "in conpliance with all applicable (RCRA) groundwater =enitoring (requirements).* In fact, and con-

                         .trary to such certification, various Rockwell and DOE of fi-l i

cials were aware of serious contamination and were informed i that the monitoring system was deficient, did not ccmply with F

                                                                              .E . ~. . I

\ l l I 1 l l RCRA, and produced data of limited (or questionable) valid-( ity. . l 2.12. In or about May 1987, DOE awarded Rockwell a performance bonus of approximately $8.6 million, based on ) l Rockwell's alleged " excellent" management at Rocky Flats. DOE officials rated the health and safety programs at Rocky Flats "very good" and said that the plant's programs to manage radioactive and toxic wastes were " excellent," despite other DOE findings that some of Rocky Flats' waste facilities were "patentiv 'illecal,'" that Rockwell had significant problems in controlling radioactive contamination at the plant and that Rockwell provided DOE with erroneous and incomplete reports on environmental, health and safety matters. In addition, three separate DOE inspections at Rocky Flats since 1986 have noted serious health and safety problems and severely criticized Rocky Flats' management. 2.13. In December 1988, Rocky Flats officials failed to report two discharges from Rocky Flats in November 1988 into creeks crossing the Rocky Flats property and leading to metropolitan Denver drinking water supplies, which contained chemical pollutants not authorized by Rocky Plats' CWA per-mit. Rocky Plats also failed to disclose at least three illegal discharges in December 1988 (1 2.8) from the plant's sewage treatment facility. 1

2.14. There is also probable cause to believe that Rocky' Flats operated the plant's Building 771 incinerator in

December 1988 to treat or dispose of hazardous or mixed-

wastes, contrary to public statements that Building 771 was shutdown from October 1988 to late January 1989.

2'.15. Such-false statements and concealment are appar-ent violations of various environmental statutes, such as 42 U.S.C. S 6928(d)(3), as well as 18 U.S.C. S 1001. 2.16. In sum, there is probable cause to believe that environmental and other crimes have been committed at Rocky j Flats and that evidence of such crimes is located there.

3. Expectations of Privaev 3.1. The Fourth Amendment to the United States consti-tution requires that all searches and seizures be reasonable.

The reasonableness of any particular search is determined by balancing the governmental interest in conducting the search , against the reasonable privacy interests of (or concerning) the person or property being searched. Eee New Jersev v. T.L.O., 469 U.S. 325 (1985); Ca= ara v. Munief eal court, 387 U.S. 523, 536-537 (1967). Important factors in striking this balance ares (a) the greater or lesser expectations of privacy in a given situation, United states v. chadwick, 433 U.S. 1, 12-13 (1977); (b) the degree to which society is prepared to recognize such expectations as reasonable or legitimate; and (c) the degree to which such privacy is

                                                                                                                                                                         -        16 -

_ _ _ _ _ _ . _ _ _ . _ _ _ _ _._m.__ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - _ _ _ . _ . _ _ _ _

actually invaded. New York v. Class, 475 U.S. 106, 118-119 (1986). ~ 3.2. Here, the legitimate or reasenable privacy interests of DOE, Rockwell and others at Rocky Flats Ere in many respects nonexistent or at least substantially limited. By seeking this warrant, neither your affiant nor the FBI or EPA recognize any greater privacy interests than in fact and law exist, and reserve their position that many or all aspects of the anticipated investigation at Rocky Flats are not searches within the Fourth Amendment's scope or legal meaning. Rocky Plats is a Government-Owned Facility 3.3. Rocky Flats is not a~ private residence or even a private business facility. The real property, buildings and improvements at Rocky Flats, and most of the

personal property, equipment and records located there, are United States Government property.

3.4. The DOE-Rockwell Agreement, Y 67(b), provides that (emphasis added): Except as otherwise provided by (DOE's) Contracting Officer, title to all caterials, ecuirment, suo-olies and tanoible personal property of every kind and description purchased by (Rockweil), for the cost of which [Rockwell) is entitled to be reL=- bursed . l

                                                            . . shall case directiv frem the vendor to                   i the Government. The Government reserves the richt to inspect       ... any item of such property.

l

3.5. The DOE-Rockwell Agreement, 1 22(a), also pro-vides that "(e)xcept as otherwise agreed upon by the Govern-ment and (Rockwell), all records relatine to this contreet

shall be the erecerty of the Government, and shall be deliv

fDOE's1 Contracting Officer may ered to the Government ... as Gener-s from time to time direct . . ." (Emphasis added.)

ally, personnel records and "corperate records" are excluded from government ownership. " Corporate records' are defined as: ,

                            "all documents and correspondence generated and maintained by (Rockwell) for the sole ouroose of communicating plans and information between

[Rockwell's] management at the Rocky Flats Plant and organizational elements of [Rockwell] located away from Rocky Flats, including . . . the Corporate Offices.- T 22(c) (emphasis added). commercial Pr=~4see Are Less Protected 3.6. To the extent that the activities at Rocky Flats are considered commercial or industrial (as opposed to resi-dential), Rockwell has a reduced expectation of privacy compared to a private residence. lee Donovan v. Devev, 452 U.S. 594 (1981). Rocky Plats is Pervasively Peculated 3.7. ,As described throughout this Application, the operations and activities at Rocky Flats are closely and e New pervasively regulated (or are supposed to be so). Ee.e

                                                           -   18 -
   ~~                  -     ----                    "'      -    - ^ - - . _   ___

L York v. Burett, 107 S.Ct. 2636 (1987); Donovan v. Dewev, suora. Rocky Flats must comply with extensive statutes, regulations, orders and rules touching on virtua11y every ,

facet of its activities, from the protection of the environ

ment to the health and safety of the plant's workers and the general public. Rockwell's operations at Rocky Flats are subject to DOE's continuous, day-to-day regulation by on-site 1 L DOE inspectors, as well as periodic inspections by the EPA 1 l and CDH. Accordingly, Rockwell's and DOE's legitimate ! expectations of privacy (to the extent that DOE has any protected Tourth Amendnent interests) are greatly reduced at l Rocky Flats. Larce Perte of Rocky Plats are Open Fields i 3.8. Rocky Flats covers 6,550 acres and much of it is i open fields. Examination of such. areas, and even physical 1 intrusion on it, is not a Fourth Amendment search. Egg United States v. Dunn, 107 S.Ct. 1134 (1987); Dow Chemical . I Co. v. United States, 476 U.S. 227 (1986) (open areas of industrial complex with numerous structures spread over 2,000 l acres are open Zields* even though located within fences). To the extent that the anticipated investigation includes a

               . physical, visual and environ = ental examination of such open fields and areas, including sampling, there is no Fourth Amendment search, or not an unreasonable one.                                  leg Air l

Pollution varience Board of Colorede v. Western Alf alf a i l l I l _ _ _ - - _ _ _ - _ _ _ _ _ _ _ _ _ _ _ - - _ . _ _ . _. 1

                                                                                                                                                                                                   . _ _ _ _ _ _ _ = _ _ _ _ _ . ______ ___ -_ _ _-____ __________ -__ ____ - __ - __
                                                                                                    ~

Coro., 416 U.S. 861 (1974); United States v. Fahev, 769 T.2d 829, 837-38 (1st Cir. 1985). . Reculatory Records Are Not Protectgi 3.9. Records required to be kept or maintained by regulatory statutes or programs are not private papers protected by the Fourth Amendment. Jgg,Shaciro v. United. States, 335 U.S. 1, 32-36 (1948); United States v. Snyder, 668 F.2d 686, 690 (2d Cir.),.g.grs. denied, 458 U.S. 1111 (1982). RCRA and the regulations thereunder require

hazardous waste facilities to prepare, maintain and preserve numerous reports and records, such as hazardous waste manifests (which are essentially detailed shipping papers concerning the proper transportation of hazardous wastes); operating records (including a description and quantity of each hazardous waste located at the facility); test results, wastes analyses and all other determinations of waste , characteristics; contingency plans; nonitoring data; biennial reports; and incident reports. 113,40 C.F.R. Part 262, Subpart D; Part 264, Subpart E. All such records must be furnished on EPA's request. 40 C.F.R. 5 264.74(a). Other statutes and regulations, such as the Clean Air Act and the CWA, require similar records. J.ge, e.e., 40 C.F.R. $ 122.41(j) (recordkeeping requirements for CWA permitees). 4 There is no Tourth A=end=ent or legitimate privacy interest in such records. - _ _ _ _ - - _ _ - - - - - _ _ _ . - _ _ _ . - - _ - _ - - . - - - - _ - _ _ _ _ . . _ - - _ _ _ _ - _ - _ _ _ _ _ _ _ - _ . _ _ . _ . _ _ _ _ _ . _ _ _ - . _ - _ _ . - - _ _ _ _ _ _ . -- --_n. _ _ . - - _ _ _ - _ . . - . - _ _ . _ _ _ _ . _ - _ - . _.-.---_.___--_--______a

Rockwell Has Consented To Insocction ! of its Activities and Records 3.10. In entering into its contract with DOE, Rockwell consented that " DOE shall-have the right to inspect the work and activities of f Rockwell1 under this contract at such time (and) in such manner as {DOEj chall deem appropriate." DOE-Rockwell Agreement, 1 58(f). Tho agreement, 1 22(e), further l provides that *[a]11 records relating to this contract in the possession of [Rockwell) shall be subiect to insoection and audit by the DOE at all reasonable times . . . *

2.11 A1192 1 58(b). In addition, the United States Comptroller General and authorized representatives of the GAO have access to, and the right to examine, all of Rockwell's "directly pertinent books, documents, papers, or other records involving trans-actions related to this contract.* DOE-Rockwell Agreement, 5 51(b). J,11 A152 42 U.S.C. 5 2014(e).

4. THE RESOURCE CONSERVATION & RECOVERY ACT 4.1. Congress passed RCRA in 1976 to address the growing problem of toxic and hazardous wastes and provide

  " nationwide protection against the danger of improper hazard-ous waste disposal." H.R. Rep. No. 1491, 94th Cong., 2d Sess. 11, reorinted in 5 U.S. Code cone. & Ad. News 6238, at 6249 (1976); agg alap.,at 6441. The statute,'s objectives include the protection of human health and the environment through stringent regulation of the treat =ent, storage, i

transportation and disposal of hazardous wastes. 42 U.S.C. S 6901.

4.2. To acccmplish such objectives, RCRA establishes a*

                       " cradle-to-grave

regulatory scheme meant to ensure that all hazardous wastes are properly handled, from the point that materials become or are otherwise considered hazardous wastes until their final, proper disposal. In order to enforce this scheme, RCRA prohibits all unpormitted treatment, storage and disposal of hazardous wastes, and provides serious criminal penalties for knowingly violating the statute. 42 U.S.C. S 6928(d) and (e).

4.3. RCRA defines " hazardous waste" at 42 U.S.C. S 6903(5), as follows: The term " hazardous waste" means a solid waste, or combination of solid wastes, which because of its quantity, concentration, or physi-

 -                            cal, chemical or infectious characteristics may--

(A) cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; or (B) pose a substantial present or potential hazard to human health or the environment when i= properly treated, stored, transported, or dis-posed of, or otherwise managed. 4.4.

Solid weste* is defined in 4 2 U.S.C. S 5903(27) as any garbage, refuse . .

                                                           . and other discarded material, including solid, liquid, samisolid or contained gaseous material, resulting frem industrial, ce=mercial, mining and

agricultural operations ...." A solid waste is a hazardous waste if it is either (or both): (a) a " characteristic

hazardous waste or (b) a listed hazardous waste.* A characteristic hazardous waste is one which' possesses"one or more of the characteristics of ignitability, corrosivity, reactivity or Extraction Procedure toxicity, as defined at 40 C.F.R. 5 261, Subpart C. A listed hazardous waste is one that constitutes, contains or is otherwise considered a waste listed or identified in 40 C.F.R. 5 261, subpart D. 4.5. Disposal" is defined in RCRA as: the discharge, deposit, injection, dumping, spill-ing, leaking or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or anf constituent thereof gar enter the environment or be emitted into the air or discharged into any waters, including ground waters. 42 U.S.C. S 6903(3) (emphasis added). 40 C.F.R. 5 260.10 defines " discharge" as "the accidental or intentional spill-ing, leaking, pumping, pouring, emitted, emptying or dumping of hazardous waste into or on any land or water.- 4.6. Treatment, storage and disposal of hazardous wastes may legally occur only at a facility with a RCRA hazardous vaste permit or a facility with

interim status.-

l Igg i 4 . 7. These permits are not mere licenses to operate a vaste facility, but i= pose stringent conditions on a facil-ity's hazardous waste activities. Owners and operators of L_______-____-____--_____-______--___ __ - _ - _ _ ______-_-___-_-_______--_-_________1

l

l. .

l . . treatment, storage and disposal ("TSD*) facilities are required to determine the physical and chemical characteris-tics of the wastes which they generate, treat, transport, . store or dispose of, and to ensure that all such wastes are appropriately handled and that all RCRA requirements are satisfied. Permits are issued only af ter a determination that a facility complies with various technical standards and ) permit requirements. 42 U.S.C. SS 6924 and 6925. The RCRA permit process consists of two basic I 4.7.

parts -- a Part A and a Part B. The Part A permit applica-tion is generally informational, whereby an owner or operator identifies (and also certifies) the facility as one which generates, transports, treats, stores or disposes of hazardous vastes. The Part A application is required to specify the types and amounts of hazardous wastes generated

             -             or otherwise handled at a particular facility, and to describe the processes that will be used, or are used, to treat, store and dispose of such vastes.                                         In general, a TSD facility which was in operation on or before November 19, l                            1980, and properly files a Part A application, is allowed to canage hazardous wastes, within the scope of its Part A application, based on its " interim status," until its Part B application is approved or rejected, so long as it cceplies with interim status standards and requisitions.
                     ~             * - - - - - - - - -       _ _ _ , _ _ , _ _ _ _ _ _        _   _

                                                                                                             .  .I 4.8. The Part B permit application provides (and is required to provide) much more detailed and comprehensive information as to what a facility will do to comply with all                     ;
                                                                                                       ~

environmental standards and regulations governing the treat-ment, storage and disposal of hazardous wastes. The final RCRA permit establishes specific permit conditions which are tailored to the hazardous waste activities at a particular facility. 4.9. -Small quantity generators

are conditionally l exempt from many of RCRA's requirements and are not required to have a RCRA permit or interim status. As defined at 40 C.F.R. $ 261.5, a *small quantity generator," during the period 1981 to 1984, wcs any person or facility which (a) l generated no more than 2,200 pounds of hazardous wastes in a calendar month; and (b) never accumulated or stored more than 2,200 pounds of such wastes on-site for more than 90 days. A small quantity generator was nonetheless required to, among other things: (a) determine whether its wastes were hazard-ous wastes; (b) properly store all such wastes in excess of certain amounts; and (c) properly treat or dispose of all such wastes. Once a small quantity generator generated more than 2,200 pounds of hazardous wastes in a calendar month or l:

I stored more than 2,200 ponds of such vastes for more than 90 l. days, it was no longer a sr.all quantity generator, and was required to have a RCRA permit or interim status.

4.10. RCRA permits are obtained from EPA or a State which has been authorized by EPA to carry out the regulatory Colorado and program on. behalf of the federal government. . : specifically CDH was authorized to administer and enforce the Spepe,49 Fed. Reg. RCRA program beginning on November 2, 1984. 41036 (October 19, 1984). EPA administers and enforces the Hazardous and Solid Weste Amendments of 1984, Public Law No. 98-616, and oversees and concurrently enforces the RCRA program, particularly its criminal provisions. RCRA'and DOE 4.11. Thrcugh the 1970s, the management, storage and disposal of radioactive and hazardous wastes from nuclear defense facilities were regulated by DOE and its predecessor agencies, based on the AEA. 4.12. Generally, the radionuclides portion of solid wastes and liquid effluents generated, discharged or otherwise handled at DOE facilities are excluded from RCRA's coverage. RCRA provides that nothing in the statute "shall be construed to apply to . . . any activity or substance

                     -         which is subject to . . .

the Atomic Energy Act of 1954 except to the extent that such application (or regulation) is 42 not inconsistent with the requirements of such Act().* I U.S.C. S 6905(a). RCRA's definition of ' solid waste

also excludes " source, special nuclear, or byproduct caterial as defined by the Atemic Energy Act of 1954, as amended (68 p

I

1 Under the AEA,

source 3).* 42 U.S.C. S 6903(27).

m2ans primarily uranium and thorium, as well as !

 ..taining such materials. 42 U.S.C. 5 2014(z).                                                               i
 . nuclear material" includes plutonium and enriched
 , oxcluding source material.                                  42 U.S.C. S 2014(aa).

act material" is:

 ) any radioactive material (except special cloar material) yielded in or made radioactive by posure to the radiation incident to the process producing or utilizing special nuclear material, id (2) the tailings or wastes produced by the

traction or concentration of uranium or thorium ,

.C. S 2014(e).

Accordingly, the radionuclides portion

's wastes and effluents are primarily governed by rules gulations (including DOE orders) promulgated under the 1.13.           At least until 1984, DOE publicly disputed RCRA's

ation to hazardous waste activities at its f acilities,

-hough RCRA, by itseexpress terms, applies to all Ege 42 U.S.C. S 6961. Although RCRA si facilities. dos that the President may exempt any facility of an stivo branch agency, such as DOE, from compliance with if he ral, State and local hazardous vaste require =ents, eminos that such exemption is in the United States' mount interest, see 42 U.S.C. S 6961, Rocky Flats,

carrier or contaminated material is often impractical, if not impossible. 4.18. By an Agreemen't dated July 31, 1936, between DOE,* EPA and CDH, DOE recognized the jurisdiction of EPA and CDH over various mixed wastes at Rocky Flats. CDH received EPA's authorization to regulate mixed wastes ef fective November 7, 1986. 4.19. On May 1, 1987, doe issued a final interpreta-tive rule under the AIA (promulgated as 10 C.F.R. Part 962, effective June 1, 1987). get 52 Fed. Reg. 15937 (May 1, 1987). Pursuant to 10 C.F.R. S 962.3(b), the only radio-active material excluded from RCRA's application are the actual radionuclides dispersed or suspended in a waste sub-stance. The non-radioactive hazardous co=ponent of the

mixed waste- is subject to RCRA' regulation. As stated in the comment to such rule, " DOE believe(d) that . . . [ RCRA was) . . . correctly understood to provide for regulation under RCRA of all hazardous vaste, includine vaste that is also rediceetive.- 52 Fed. Reg. at 15940 (emphasis added).

4.20. By reciting DOE's positions as stated in this Part 4, neither your af fiant nor the FBI or the EPA mean to agree with such positions or otherwise indicate that doe's positions, prior to May 1, 1987, were correct. It is your affiant's position that RCRA has applied to all hazardous wastes at all federa.1 facilities since RCRA's inception,

i L , . f . according to EPA records, has never recuested or received such an exemDtion. -

4.14. By DOE Order No. 5480.2 dated December 11, 1982, DOE established procedures for regulating hazardous wastes at I DOE facilities and required that such facilities comply with l RCRA to the extent practicable. 4.15. In Lecal Environmental Assistance Foundation v. Hodel, 586 T. Supp. 1163 (E.D. Tenn. 1984), a U.S. District Court confirmed that RCRA applies to hazardous waste acti-vities at all DOE facilities, except as to nuclear materials and radioactive wastes, which are regulated under the AEA. All DOE facilities must comply with RCRA's requirements and must have a permit to treat, store or dispose of hazardous wastes.

4.16. While " purely radioactive wastes, then, are governed by the AEA, and non-radioactive hazardous wastes are regulated by RCRA, regulatory jurisdiction over

mixed wastes -- which contain both radioactive vastes and nLn-radioactive hazardous wastes -- has been disputed.

4.17. EPA and various states, including Colorado, have asserted jurisdiction over mixed wastes since the early or mid-1980s. Virtually all radioactive wastes are contained, dissolved or suspended in en otherwise non-radioactive matorial (which may or may not be independently hazardous). Physical separation of the radioactive corponent from the I

l including all hazardous and mixed wastes at DOE facilities, to the maximum extent consistent with the AEA.

5. RCRA AT ROCKT FLATS Based upon a review of EPA and CDH records, other government documents, reports and studies, and materials submitted by or obtained from DOE and/or Rockwell, as well as other sources of information stated herein, your affiant states as follows:

5.1. On November 19, 1980, the EPA's Region 8 office in Denver, Colorado, received Rocky Flats' Part A RCRA permit application from DOE Area Manager Den Ofte, stating that the plant was operated by Rockwell on DOE's behalf. DOE stated that Rocky Flats was a RCRA herardous waste facility which treats, stores and disposes of herarelous wastes. DOE further stated that Rocky Flats generated approximately 3,900 tons of

mixed stream
wastes a year -- that is, wastes which were both radioactive and hazardous. According to Mr. Ofte, most of these mixed stream" wastes were nitrate and potassium salts which were shipped to a DOE facility in Nevada for burial as low-level radioactive vastes. Mr. Ofte stated that DOE did not include =ixed waste in its Part A application, since DOE censidered that such waste was radioactive waste not covered by RCRA.

5.2. On June 17, 1981, EPA notified DOE Area Manager Don Ofte that Rocky Flats' Part A application was incomplete.

(-- i } The June 17 letter stated that DOE's and Rockwell's failure I or refusal to correct the application's deficiencies by July 29,1981, .might result in Tailure of Rocky Flats to qualify - for interim status, the denial of a RCRA permit or oth~er enforcement action. 5.3. Earl W. Bean of DOE's Rocky Flats Area Office responded to EPA in a letter dated July 21, 1981, claiming that radioactive wastes were excluded from RCRA. DOE also claimed that because Rocky Flats allegedly generated only 1 i

                                                                                -limited quantities of non-radioactive hazardous wastes, l

Rocky Flats was a 'small quantity generator" and not a haz-ardous waste treatment, storage or disposal facility regttir-ing a permit *[W)e therefore request that Part A of our permit application be withdrawn and that we continue to be included in the RCRA record system, but as a small cener-A3yp.r.- (Emphasis added.) 5.4. EPA responded to DOE's letter on December 15, 1981, acknowledging DOE's withdrawal of its Part A applica-tion. EPA nonetheless stated that *[ DOE) should be aware

      .                                                                that we have not made any determination as to whether or not a permit is required for your facility.                                                  Thet det e rmina ti on is your reseensibility."                                                 (Emphasis added.)

5.5. Information obtained during an EPA-CDH inspection of Rocky Flats on June 7,1983, shows that Rocky Flats gener-ated or acen=ulated at least 21,500 pounds of RCRA hazardous

~,

vastes in 1982, including trichlorethylene, carbon tetra-chloride and other chemicals. These amounts substantially exceeded the amount allowed to be accumulated by a small quantity generator in 1982. DOE /Rockwell did not have a RCRA permit or interim status Lt Rocky Flats to treat, store or dispose of such wastes. 5.6. On June 7, 1983, EPA and CDH inspectors Lam Hguyen and Frank Relier performed an inspection at Rocky Flats and found that approximately twenty 55-gallen drums of hazardous wastes had been stored there since about April 1982, without a permit or interim status -- substantially longer than the allowed 90-day period. This conduct was an apparent RCRA felony, involving the illegal storage of hazardous wastes without a permit, in violation of 42 U.S.C. 5 6928(d)(2). 5.7. On or about July 18, 1983, DOE's John Hayden, in response to the June inspection, stated to EPA official Jon' Minkoff that DOE had withdrawn its Part A application for Rocky Flats "in error" (emphasis added), since Rocky Flats sig, store solvents and other wastes for more than 90 days. Thus, it appears that Rocky Flate was operated as an unpermitted (and illegal) treat =ent, storage and disposal facility frem at least =id-1981 through July 1983. 5.8. On or about August 15, 1983, EPA's David S. Kircher wrote to DOE Area Manager James R. Nicks concerning

I N

                                                                                                                .'           '  j l

the June 7, 1983 inspection. Mr. Kircher stated that DOE was l required to submit a corrected Part A application and comply

l with all of RCRA's interim status requirements, since large l quantities of hazardous wastes were stored at Rocky Flats for { more than 90 days. l 5.9. On or about August 22, 1983, DOE's James R. Nicks 1 responded to the June 1983 inspection by enclosing "a resub-mittal of thi RCRA Consolidated Permit Applicci. ion for interim status for the Rocky Flats Plant.* Mr. Nicks stated , I that the application pertained only to the non-radioactive waste sent to EPA approved TSD [ treatment, storage or dis-posal) facilities. - 5.10. The resubmitted Part A application estimated that Rocky Flats generated, stored or otherwise accumulated approximately 13,000 pounds of hazardous wastes on an annual basis, including: 9,000 pounds of spent halogenated solvents , (such as tetrachloroethylene, trichlorethylene, 1,1,1-trichloromethane and other solvents); 3,000 pounds of ignit- 1

able wastes; and 1,000 pounds of reactive vastes. No infor-mation was given as to how these wastes were treated or l disposed of, except that 5,207 pounds of hazardous vastes -- less than helf the total amount indiceted -- were " shipped to an EPA approval [ sic) TSD Facility or stored." Disposal of the remaining vastes was not indicated.

                                                                                                                            )
                                             ~

i 1 1

5.11. Information submitted by or obtained from DOE and Rockwell show that Rocky Flats in fact generated or accumu-lated at least 25,227 pounds of RCRA hazardous wastes in 1984

             <almost twice the amount estimated in August 1983), including trichlorethylene, carbon tetrachloride and other chemicals.

5.12. Pursuant to the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. S 9601, at seo., popularly known as the *Superfund- legislation, EPA, on October 15, 1984, proposed to include Rocky Flats on the National Priority List, as a hazardous waste facility needing priority attention. 5.13. On or about April 18, 1985, CDH asked DOE and/or Rockwell to submit a Part B RCRA permit application by November 1, 1985, concerning the treatment, storage and disposal of hazardous wastes at Rocky Flats. The request notified DOE and Rockwell that the Part B application was required to address all applicable regulations and that failure to do so, or to provide ecmplete information, would be crounds for terminating Rocky Flets' interim status. 5.14. On or about May 30, 1985, DOE's Acting Area Manager Jerry L. Bellows submitted Rocky Flats' revised Part A application to CCH. This revised Part A application estimated that DOE /Rockwell stored 3,000 gallons of hazardous l vastes in centainers, and treated 24 gallons of electroplate-

l l ing hazardous vaste a day (or B,760 gallons a year) at Rocky

1

l 1 .

1 i riats. DOE described its hazardous wastes at Rocky Flats as 1 L ignitable, corrosive and reactive hazardous wastes, including i toxic and reactive gases arud pyrophoric metals, as well as spent halogenated solvents (such as tetrachloroethylene, trichlorethylene and 1,1,1-trichloromethane), and off-spec commercial chemical products. 5.15. The revised Part A application also estimated that Rocky Flats generated more than 1.3 million pounds of mixed wastes on an annual basis, including the following mixed wastes in the following amounts: Treatment, Storage or Amount Disposal RCRA Hazardous Waste description fibs.) Method

Waste Number Ignitable wastes 1,520 S: drums D001 T: incineration Corrosive wastes 1,200,000 T: SI or P-CP D002 Other corrosive 47,468 S drums or tanks D002 wastes T: SI or P-CP Reactive hazardous 136 S drums D003 wastes T: SI or P-CP J EP toxic waste 20,394 S: drums D007 (chromium) T: SI or P-CP Spent halogenated 49,504 S: drums F001 '

i solvents T: P-CP

S = Stored T = Treated SI = Surface Impoundments P-CP = Physical-Chemical Processes i

.- 1 . j

           .,                                                                                                                         j l

5.16. The revised Part'A application stated that all mixed wastes were treated in Buildings 774 and 374, and described the referenced " physical, chemical, thermal or biological" treatment processes as solidification inside dru ns, cementation in boxes, pan evaporation, spray drying and rotary drum filtering. 5.17. According to the revised Part A application, all

             " mixed wastes," after being stored and/or treated at Rocky Flats, were *[s)ent to [an) offsite DOE facility."

5.18. On or about November 8,1985, DOE and Rockwell submitted to EPA a further revised Part A application, as well as a Part B RCRA permit application, signed by. DOE's Acting Area Manager, Albert E. Whiteman, and Rockwell's J. E. Dorr. Mr. Whiteman stated in the cover letter that the Part B application concerning radioactive mixed waste was to ensure interin status for the " radioactive mixed waste land diseosal units by the statutory deadline of November 8, 1985.- (Emphasis added.) 5.19. As a further part of the November 8, 1985 sub-missions, DOE and Rockwell representatives defined *radioac-tive mixed wastes as those wastes which have both low-level radioactive contamination and have hazardous waste properties (as defined by RCRA)." ' 5.20. The revised Part A application estimated that Rocky Flats generated more than 31.6 mi]Iion counds of mixed 36 -

L . L , hazardous wastes on an annual basis, including the following mixed wastes in the following amounts: 3 \ i

Amount TSD RCRA Hazardous Weste _escription fibs.) Method

Waste Ndhber Chromic acid 28,565 5: containers D002 plating bath T: tanks D007 L Coolant /1,1,1- 9,691 S: drums F001 trichloromethane T: tanks and U226 incineration **

Cyanide waste 22 S drums D003 T: P-CP P030 Cadmium cyanide 2,684 S: drums F001 T: P-CP P030 Etchant solution 7,798 S drums D002 (10% acid) T: tanks D003 (corrosive, reactive U134 and acid wastes) Fixer (radiographic 237 S: drums Doll solutions) T P-CP Acid wastes 1,627,890 S: drums D002 T: tanks Metal heat t:' eating 998 S: drums D005 salts (barium T: P-CP chloride-) Salts (sodium 1,196 S: drums D001 nitrated potassium T: P-CP nitrate mixture) Sodium hydroxide 2,997 S drums D002 T: tanks D003 011 conta=inated 6,405 S: drums F001 with solvents T: tanks F002 011 and 201 S dru=s F001 scintillation liquids T: incineration ** Ox cut (spent 154 S: drums F007

   -cyanide)                           T:                      tanks i
              .                                                                                                                                                        1 1

1

                                                                                           - - _ _ _ _ _ - - - _ _           _ - _ _ - _ - _ _ _ _ _ _           _A

l Pyridine 276 S drums D001 U196 l P075

T tanks D002 D003 - Sulfuric acid 2,033 _ l 476 S drums 'D001 F003 Scintillation U220

                           ' cocktail S:   drums                                              D007 Solar pond sludge          848,232 29,129,284   T:   P-CP                                               U044 Intercepted                                                                                 U228 pond seepage (chloreform, trichloromethane)

5 = Stored T = Treated SI = Surface Impoundments

                                      - P-CP = Physical-Chemical Processes
                                         **   By fluid bed incineration.

5.21. The November 8, 1985 Part A application describes the referenced physical, chemical, thermal or biological-cemen-

treatment processes as involving acid neutralization; tation or solidification of wastes in boxes or other con-tainers; other neutralization and precipitation; soray irrication of vastes on ooen fields; and use of a fluid bed for chemical crocess) incinerator. 5.22. As part of Rocky Flats' November 8, 1985 submis-sion, DOE's Albert E. Whiteman and Rockwell's J. E. Dorr also certified that Rocky Flats' groundwater mo'nitoring system As discussed in Part 10, co= plied with RCRA's requireutnts. this certification was false, An violation of 18 U.S.C. S 1001. -

5.23. On or about December 16, 1985, CDH issued a' Public Notice.of Intent to Deny a Permit, stating its'tenta-tive decision to deny Rocky Flats' Part B application, based on DOE's and/or Rockwell's "failing to provide a complete Part B application and failing to correct deficiencies in the application as requested by CDH.* 5.24. CDH's tentative decision made the following

          " Findings of Fact' (emphasis added):

2. [ DOE and Rockwell) conduct the following unit operations (at Rocky Flats):

Storage and treatment of mixed hazardous waste and radioactive waste in tanks. Storace and treatment of mixed hazardous vaste and radioactive waste in surface impoundments. Pan evaporation of mixed hazardous waste and radioactive wastes. Thermal evaporation of mixed hazardous waste and radioactive wastes.. Spray dryer treatment of mixed hazardous wastes and radioactive wastes. Rotary drum filter treatment of mixed hazar-deus and radioactive westes. Cementation in boxes of mixed hazardous and radioactive wastes. Land trea tment of interegoted groundwater that contains hazardous vastes. The act of mixine of hazardous vastes and radioactive vaste occurs at the facility. The act of deliberate or unintentional mixing (of] listed or characteristic hazardous wastes with other wastes that are radioactive does not exempt the resulting mixture from the regula-tory requirements of Colorado's Hazardous Waste law. 39 -

1

The applicant did not include the above listed units which treat, store, or dispose of mixed hazardous and radioactive waste in the Part B

permit application, as required by 6 CCR 1007-3, Part 100 and Section 100.41(b), speci- -

fically.

5. Rockwell arid the Decartment of Enerev have repeatedly denied the state conclete informa-tion on mixed waste streams eenerated and menaced at the Rockv Flats Plant. The analy-sis requested on September 6, 1985 for all waste streams generated at the site has not been given to the Colorado Department of Health. The ecolication fails to contain chemical and ehysical analyses of the hazard-ous waste to be handled at the facility as ;

required by 6 CCR 1007-3, Section 100.41(a)

(2). The Department cannot determine whether or not additional hazardous waste management activities are occurring which should be regn-lated. Reculated units may exist at the facility in addition to those seecifigg. For these reasons, the Deeartment is makino the teDtative status decision and to deny to terminate the eermit for theinterim Rocky Flats Plant. The intent of permitting is to upgrade all hazardous waste treatment, storage and disposal facilities or to close them...in order to prevent further contamination. The aeoliesnt's failure to erovide critical information necesserv to accorelish the uoeredine of the Rocky Plats Plant harardous waste activities leaves the Department no alternative but to issue a notice of intent to terminate interim status and to deny the i permit. The ecolicant f ailed to correct these {' deficiencies as recuested in the Notice of Deficiency issued November 21, 1.995, by the l Deeerteent. I 5.25. Between Dect=ber 16, 1985, and July 31, 1986, j I because of CDH's tentative decision to deny Rocky Plats a l l l l l i

RCRA hazardous vaste permit and terminate its interim status, j negotiations occurred between DOE, EPA and CDH in an effort ! 1 to reach agreement concerning Rocky Flats' permit application i i and clean-up plans. 5.26. . In an EPA memorandum dated February 26, 1986, to EPA Region 8's Director of Waste Management, Robert L. - Duprey, EPA officials recommended that negotiations be pur-

sued between EPA, DOE and CDH in order to reach agreement on environmental compliance and corrective actions at Rocky Flats. The memorandum states in pertinent part (emphasis added):

As you know, the Rocky Flats facill'ty has been proposed for listing on the National Priorities List. This proposed listing was based on docu-mented releases of plutonium and tritium. We also have information that substantiates that hazardous vaste and constituents are also beine released from the site. ... Releases of hazardous waste and hazardous sub- 1 stances have and are now occurrine at the facility. These include both radioactive and non-radioactive J j wastes. volatile orcenic conoounds have been detected i in around-water in concentrations of up.to 16 ppm of i tetrachloroethylene ... 1 5.27. In April 1986, the Environment, Safety and Health Division of DOE's Albuquerque Operations Office published a document entitled " Comprehensive Environmental Assessment and 4 Response Program, Phase 1: Installation Assessment, Rocky i Flats Plant" (*CEARP*), which evaluated Rocky Flats "with

                                                                                                                     -   41 -

l

     . l                                                                                                                                                                                                              ,

respect to inactive waste disposal sites, accidentally con-I taminated sites, current waste management practices, existing 1 and potential surface water and groundwater contamination, 1 and compliance with applicable federal, state and local. environmental regulations." CEARP at Ex-1. 5.28. As part of the Rocky Flats CEARP, the entire Rocky Flats facility was evaluated according to EPA's Hazard Ranking System, a system used by EPA to establish a National Priorities List ("NPL") of hazardous waste facilities or sites requiring immediate or eriority attention. The thres-hold score for a facility or waste site to be included on the NPL is 28.5. The entire Rocky Flats site was divided into two parts, based on two distinct drainages on the property. The Walnut Creek drainage, which flows into Great Western Reservoir, a water supply for the City of Broomfield, Colorado, was given a hazardous chemicals score of 53, close to twice the threshold score for including a site on the NPL. The Woman Creek drainage, which flows into Standley Lake, a water supply for the cities of Westminster, Northglenn and Thornton, Colorado, was given a score of 40. At least three specific sites also exceeded the NPL threshold scores the solar evaporation ponds (40), the present landfill area (34) and volatile organic cc= pounds in groundwater generally (40). Another site, known as the 903 Drum Storage Area, was scored 26, close to the NPL level. The study reco== ended that more i

j e e-than 30 individual sites be further evaluated. 5.19. Contrary to a statement in DOE's April 1986 Rocky Flats' CFARP that "U.S. Department of Energy (DOE). facilities operate under a policy of full compliance with applicable

   ,                                                                             j i

environmental regulations," a DOE Memorandum dated July 14, i l 1986 addressed to a DOE Assistant Secretary (1 2.1) states j that a rt1he como11ance costure of the Rockv Flats facility makes it a coor candidate for testina fine noints of law."

11. at 4-5 (emphasis added). The document continues, it.

(emphasis added): Rocky Flats, an NPL candidate, is in noor condition cenerally in terms of environmental como11ance. We have basically no RCRA groundwater monitorine wells, our osrmit acclications are crossiv defi-cient (seme of the waste facilities there are patentiv "illecal"). We have serious contamina-tion, and we have extremely limited environmental and waste characterization data for a site of this ccmolexity. There are CERCLA problems here which are within EPA's exclusive jurisdiction. , Much of the good press we have gotten from the Agreement in Principle has taken attention away from iust how really bad the site is. If we scrap the agreement and let ourselves fall

 .       into litigation, we are likely to find ourselvet trvine to win issues in a less than favorable een-text we have now finessed or avoided.

The inability of DOE to bring this to fruition will suggest that direct, harsh, enforcement action, e.g., Fernald, will be more expeditious and productive. ... Dor will also lose in the effect that lawsuits have on its reputation as an environmental colluter.

1 5.30. On or about July 30, 1986, EPA's then Regional

Administrator, John G. Welles, DOE Area Manager Albert E. Whiteman and CDH's Dr Thomas Vernon, on behalf of.th~eir respective agencies, entered into a " Compliance Agreement-titled "In the Matter of: Department of Inergy, Rocky Flats Plant, Golden, Colorado (RCRA VIII-86-006/ CERCLA VIII 08)." The stated purposes of the agreement were, in part-

a. To resolve issues related to, and to establish

     -                   requirements for, hazardous waste, including radio-active mixed waste, compliance at the DOE's Rocky Flats Plant pursuant to CDH and EPA hazardous waste authorities;

b. To establish requirements for the investigation of, and corrective action for, any releases of hazardous waste, radioactive mixed waste, or con-stituents from any solid waste management units

("SWMU-) and other areas at the Plant, consistent with the requirements of the Resource, Conservation and Recove.iy Act, 42 U.S.C. Sections 6901 gi see. 5.31. The ce=pliance Agreement states in further part, at 4-11 (emphasis added):

a. COE is an agency of the federal government and is subject to regulation of its hazardous [

waste =anagement activities pursuant to sec-tien 6001 of RCRA, 42 U.S.C. S 6961 ... l l d. Under Centract DE-AC04-76DP 03533, DOE has, since July 1, 1975, engaged Rockwell Inter-national Corporation (*Rockwell") to perform l ' =anagement services in support of DOE's production activities at the Rocky Plats Plant. These services include activities required to meet the obligations of DOE under

this' agreement. e .- DOE and Rockwell are generators as defined in 40 C.F.R. section.260.10, and 6 CCR 1007-3, section 260.10. . f. DOE owned and Rockwell operated the facility' on and after November 19, 1980.

i. DOE and Rockwell filed a Part A RCRA permit application on November 14, 1980, which iden-tified certain hazardous wastes.

j. In their permit application submitted on November 8,1985, DOE and Rockwell notified i the State, pursuant to the (Colorado Hazardous Waste Act), of the handling of certain haz- ,

ardous wastes. Said permit application did j not include radioactive mixed waste streams or units. ...

k. In their permit application submitted on November 8, 1995, DOE and Rockwell notified EPA ... of the handling of certain radioactive mixed wastes, i

1. Since the establishs.ent of the facility in j 1952, materials defined as hazardous sub- H stances have been produced and disposed of at various locations at the facility. {

m. Certain hazardous substances, radioactive mixed wastes, hazardous wastes, or consti-tuents thereof remain on, under, or near the l facility, and have been detected in ground-water at the facility. l

n. Groundwater, surface water, and air pathways provide routes for the potential migration of hazardous substances, radioactive mixed wastes, or hazardous wastes or constituents thereof from the Rocky Flats facility into the environment.

l

I

                                                                                                                         .I s

4 *t l

o. The migration of such hazardous materials from the facility may present a threat to the public health, welfare, and the environment.

p. The Rocky Flats facility contains both active and inactive SWMU [ Solid Waste Management .

Units] which are potential sources for the release of hazardous substances or hazardous wastes or constituents thereof.

q. The permit application submitted on November 8,1985, to EPA by DOE and Rockwell pursuant to section 3005 of RCRA, 42 U.S.C. S 6925, and implementing regulations identified a number of units subject to RCRA regulations including incinerators, treatment / storage tanks, surface ;

impoundments, and land application land dis-posal facilities.

5. CONCLUSIONS OF LAW AND DETERMINATIONS

1. Based on the Findings of Fact set out above and the administrative record, the Director of the Waste Management Division, EPA, Region VIII, and the Director of the Toxic Substances and Waste Management Division of CDH have determined, without admission of any such determination by DOE, thats

a. The Rocky Flats site is a " facility" as .

defined in the EPA and CDM hazardous waste regulations, and was in existence on November 19, 1980.

b. The Rocky Flats facility is subject to the generator, interim status, corrective action, and permitting requirements for radioactive mixed waste and for hazardous waste, and DC and Rockwell have interim status for the Rocky Flats facility to treat and store those vastes identified in subparagraphs 4.1,.j, and k hereof.

c. DOE is an owner and Rockwell is an operator of the facility within the meaning of RCRA and CHWA.

d. Certain wastes and constituents thereof found at the facility are hazardous wastes or

 ,   c                                                                                                                                                                                                      .

l . .. o . constituents thereof as defined pursuant to l RCRA and CHWA.- e.- In view of the potential for release of hazardous waste, _ radioactive mixed waste - and/or constituents into the environment from the DOE facility, and the necessity for com - pliance with RCRA and CHWA requirements, EPA and CDH have determined that the actions specified herein are necessary to protect human health and the environment.

6. REGtEATORY COMPLTANCE - HAZARDOUS WASTE.

a. DOE will comply with the CHWA and CDH's hazardous waste regulations found at 6 CCR 1007-3 in its management of hazardous wastes at the Plant.

                           - b..                   DOE will comply with Schedule 1 attached hereto.and incorporated herein by reference which contains a timetable for. generator and interim status compliance.                                                                                             -

c. 1. DOE and.Rockwell will submit to CDH a revised Part B permit application [by November 28, 1986) for all hazardous waste activities and units at the Plant as required by the CDH hazardous waste regulations. ...

8. RADIOACTIVE MfXED WASTE REGtEATORY COMPLTANCE

a. The parties agree that the framework for com-pliance for the Plant's radioactive mixed ,

waste units under this Agreament is HSWA (the Harardous & Solid Waste Amendments of 1984) and 40 C.F.R. Parts 260-271. However, if during the term of the Agreement, EPA pursuant to section 3006 of RCRA, 42 U.S.C. S 6926, authorizes the State of Colorado to regulate radioactive mixed waste under RCRA, it is agreed that thereaf ter the regulatory frame-work for this paragraph 8 shall be the CDH hazardous waste regulations, in addition to MSWA. ______.__m___._ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ . _ _ _ _ _ _ _ _ . _ ._

   -4 .

e 4 't l l b. DOE will comply, with respect to its radio-l active mixed wastes, with the requirements of 40 C.F.R. sections 262 and 265 to the extent that such compliance is not " inconsistent" with the requirements of the (Atomic Energy . Act), as described in subparagraph h hereof, in accordance with Schedule 1, which contains

a time-table for generator and interim statGs compliance.

c. 1. DOE will submit in accordance with Schedule 1 a revised Part B permit application for all radioactive mixed waste activities and units by November 28, 1986. The permit application will be' prepared to meet those requirements of the CDM hazardous waste regulations which, if applicable to radio-active mixed waste, would be more stringent than EPA's regulations. ...

2. EPA shall have review' authority over the HSWA and radioactive mixed waste portions of the permit application unless EPA has author-ized CDH under section 3006 of KCRA, 42 U.S.C.

S 6926, to regulate mixed waste at the Plant or to implement the HSWA provisions. ... EPA retains its permit review authority pursuant to 40 C.F.'R. section 271.134.

                                                             =                                                      I
          ._                   5.32.      In response to CDH's December 16, 1985 Public                             l Notice of Intent to Deny (Rocky Flats) a Permit (11 5.23 -

5.24) and as required by the July 31, 1986 Compliance Agree-ment, DOE, on Novamber 28, 1986, filed revised Part A and Part B permit applications with EPA and CDH, concerning Rocky Plats' treat =ent, stcrage and disposal of hazardous and low-level mixed wastes. 5.33. Since the July 31, 1986 ccmpliance Agreement was signed, EPA and CDH have found, according to EPA's Nathaniel Miullo, that Rocky Flats generates far more wastes than the

amounts estimated in the July agreement, and that there are thousands of waste streams, rather than the estimated 600 to 900 streams.M 5.34. There is probable cause to believe that otherwise

                                                                                                                                            ~
                  ' separate hazardous wastes and radioactive wastes have been intentionally mixed at Rocky Flats, and that such practice continues to the present time.

a. First, *[t]he types of wastes generated at

                   ! Rocky Flats) have been consistent throughout its history."

CLARP, at V-53.

b. Second, CDH concluded in September 1987 that

                   -(t]here are waste streams generated [at Rocky Flats) which are not reeveled or sent off-site to [a treatment, storage or disposal facility), and which are also not associated with a Tselid waste manacement un'iti et Rocky Flats.*                                                                     September 28, 1987 CDM Notice of Deficiency (T 5.42) (emphasis added).

c. In its December 16, 1985 Public Notice of Intent to Deny (Rocky Flats'] Part B application (T 5.23),

CDH found that *ft1he act of mixine of hazardous _ wastes and radioactive vestes occurs at the facility," and stated to Rocky Flats' officials that such mixing

dees not exempt the resulting mixture from the regulatory requirements of Colorado's Hazardous Waste law." (Emphasis added.)

U According to EPA's Nathaniel Miullo, a

waste stream- is a consistent and/or variable waste product from manufacturing or produc. tion activities.

                                                                          -   49 -

i . . e 1

d. Rocky Flats' own CEARP, published in April 1985 (5 5.27), confirms the same practice, at IV-3 (emphasis added): j i

j While some of [ Rocky Flats') wastes are managed individually, others are mixed together within the waste treatment process and handled as a single i waste unit. The generation of candidate mixed waste and the deliberate mixino of dif ferent waste streams. ... oresent some reculatory concerns. ... (T]he deliberate mixing ci RCRA-regulated waste with by-product material and/or candidate mixed wastes needs to be evaluated to determine whether i waste streams should continue to be mixed and the resulting waste possibly regulated under RCRA, or I whether the vaste streams should be segregated and managed individually as by-product waste and RCRA-j regulated waste. f 5.35. EPA's and CDH's concern about mixing incompatible f l wastes, or storing incompatible wastes in close proximity to p ll one another, is more than academic. Two problems associated with mixing such wastes ares (1) a chemical process known as alpha hydrolysis; and (2) the generation of hydrogen gas. 5.36. According to EPA's Nathaniel Miullo, alpha hydrolysis- is a radio-chemical reaction which occurs when the radioactive portion of mixed wastes, during its decay or degradation, reacts with hydrogen present in other chemical I or hazardous wastes (such as waste oils and solvents) and produces hydrochloric acid. The acid then c'orrodes the waste 1 4

l l . . 1

                                                                                                                                 .   .j containers and exposes the wastes to the environment, causing                  '

soil and other contamination.F 5.37. Another concern _related to the mixture or storage 1 of incompatible wastes is the generation of hydrogen gas. I iceerding to Nathaniel Miullo, hydrogen gases are generated 4 in drums containing radioactive-contaminated materials (such as gloves, kimwipes, etc.) and the storage of such wastes requires that specially designed containers with carbon I filtration vents be used, to allow the gases to escape. These types of filters are not regularly used on other haz-ardous waste containers or at other hazardous waste (or TSD) facilities. Accordingly, the improper mixture of wastes and the failure to properly analyze and identify the same may result in improper storage and disposal of such wastes at both Rocky Flats and off-site TSD facilities.1/ M One specific result of this process is that the liquid portion of the exposed wastes evaporates, leaving the radioactive wastes to be carried by winds to other, including off-site, areas. Such off-site radioactive contamination is illus?. rated by adjacent landowners' lawsuits against DOE concerning alleged contamination of their property. Egg McKav, et al. v. Ackard, et al., Civil Action Nos. 75-M-111, 75-M-1162 and 75-M-1296, in the U.S. District Court for the District of Colorado. il According to EPA's Nathaniel Miullo, both the alpha hydrolysis and hydrogen gas issues are known to Rocky flats' officials, and they have been specifically discussed during (or as a result of) EPA-CDM inspections in 1988 and 1989. During a February 16, 1989 EPA-CDM inspection at Rocky Plats, the regulators observed that aqueous acid wastes and liquid organic wastes may be improperly mixed and stored together in Building 559. While Rocky Plats' waste identification practices allow this mixing to occur, such practice is contrary to EPA's RCRA regulations. 40 C.F.R. Part 265, Appendix V.

5.38. At DOE's and/or Rockwell's direction, a document dated April 6, 1987 and entitled

Waste Stream Identification ,

("WSC") and Characterization /U.S.D.O.E. - Rocky Flats Plant" This report was l w'as prepared and submitted to EPA and CDH. prepared: *(1) to generate information required to prepare Ba radioactive mixed and hazardous vaste management RCRA Part permit application to the EPA and the [CDH); and (2) to generate information for use in developing a facility-wide ) waste management plan." WSC at 1-2. 5.39. The WSC project reviewed the waste processes at approximately 100 Rocky Flats buildings, and the resulting WSC document purports to characterize every waste stream at a) a building-Rocky Flats. The WSC project consisted of: by-building review to identify each building's vaste genera-i l tion, transportation, storage, treat =ent and/or d sposa activities; b) sampling of selected waste streams; and c) chemical analysis of these samples to characterize the wastes Each as to their hazardous and/or radioactive properties.

                                                                                                                *H" waste stream was characterized with a waste class code:

for Transuranic; *N* for non-hazardous / for hazardous; *T* for radioactive; and *M* for low-level non-radioactive; *R* The waste streams were traced to approximately mixed wastes. 22 la ations at Rocky Flats for *cn-site disposal.* 5.40. Since April 1987, Dor and Rockwell have continued to refer to, and rely upon the WSC document in their various

[ . .. 1 i RCRA and CWA submissions. Moreover, EPA Region 8's principal Rocky Flats regulators, including Mr. Nathaniel Miullo, con-

sider the WSC document the single most comprehensive source ef Rocky Flats waste information.M l 5.41. On or about May 26-29, 1987, CDH officials Peter l Bierbaum, Nancy Jackson, James Kiefer and Mike Sattler per-formed a. pre-arranged (i.e., advance notice) inspection at - Rocky Flats to determine its compliance with the Colorado Hazardous Waste Act, C.R.S. S 25-15-301, and regulations thereunder,U as well as the plant's compliance with the July 31, 1986 Compliance Agreement. F The WSC document was prepared pursuant to (or as required by) the July 31, 1986 Compliance Agreement, and was largely a response to CDH's December 1985 rejection of Rocky Flats' November 1985 Part B permit application based in part on the application's failure to provide sufficient waste information. The WSC document must therefore be viewed as a deliberate effort by Rocky Flats' officials to provide EPA and CDH with accurate waste information. Since April 1987, Rockwell and DOE have repeatedly cited or otherwise used the WSC information in a number of submissions to EPA and CDH, including Rocky Flats' August 2, 1988 revised Part A application for hazardous and mixed wastes, which is still - pending, and DOE's January 18, 1989 application to renew Rocky Flats' Clean Water permit. In a DOE letter dated February 13, 1989 to Area Manager Albert E. Whiteman, concerning the shipment - of Rocky Flats' sewer sludge to a DOE facility in Nevada, DOE relied extensively on verbatim information from.the WSC document. Your affiant accordingly believes that he may reasonably rely on the WSC information. F As stated in T 4.10, the RCRA program in Colorado is dele-gated to COM, which also enforces Colorado's hazardous waste requirements.

5.42. On or about September 28, 1987, CDH sent DOE a Notice of Deficiency (" NOD *) concerning Rocky Flats' November

28, 1986 Part B RCRA permit application (1 5.32), together with EPA's co==ents and criticisms. The NOD outlined a num-ber of deficiencies in Rocky Flats' Part B application, as described in i 5.43, and also questioned the accuracy of certain information in the WSC document, stating that various wastes designated as "non-hazardous" should have been clas-sified as " hazardous." 5.43. Both EPA and CDH found numerous deficiencies in l Rocky Flats' November 28, 1986 Part B application, including 1 such basic inadequacies as failing to indicate the total l number of solid waste management units (or "SWMUs") at Rocky Flats, failing to accurately and completely identify wastes and waste streams, and failing to. estimate annual volt =es of

wastes. Maps and documents filed as part of the permit application failed to identify all past, present and proposed treatment, storage and disposal facilities. Deficiencies noted by EPA and CDH in the September 28, 1987 NOD and its attach =ents also included (emphasis added):

a. "

The aeolleetion does not include a weste analvsis elan specific to the treatment and storace eetivities. ... The owner or operator of a TSD [ treat =ent, storage and/or disposal) facility =ust establish a plan to analyze all vaste streams to the extent necessary to treat, store or dispose of the vastes in accordance with the regulations." 1 _ . __ ____.____-____m__ __m_ - - - - - - - - - - - - - - - - - - - - - - - - - - ^ - - - - - - - - - - ^ - - - - - - - - - - - ' - - - - - - - - - - " - - - - - - - - - - - - - - - - - ^ ' - - - - " - - - - - - - - ^ ' " - -

1

b. The application discusses types of wastes generated (generally), kyt civen_no details on !

orecesses involved in eeneratino wastes.- i

c. [The application) *must define waste

       -analysis parameters specific to each waste treat-                         ,

ment or storage unit and each hazardous waste / waste i stream which is to be received or treated at each - unit."

d. *For example, to operate an incinerator safely in accordance with the regulations, factors such as vaste composition, ash content, heat of combustion, chlorine content, solids content, and i other waste parameters should be determined."

{

e. [In connection with the facility's waste characterization efforts)

Rocky Flats has not verified that its sampling plan indeed provides representative information.'

f.

Waste characterization data is incomplete i and is not informative with resoect to TSD oro-

   ,    cesses utilized at fthel facility."

g. [In connection with a reference to contradictory data, the report states that] *[t]he importance of this c4mment is related to how vaste streams are ultimattiy designated. For example, some radioactive wastes may actually be classified as solid wastes, if the improper guidelines are used. Radioactive vastes should not be disposed of in the present fon-sitol landfill.*

h. "There are vaste streams cenerated on-site which are not reeveled or sent off-site to a TSD, and which are also not associated with a SwMU. All waste streams treated, stored or disposed of on-site must be associated with a SWMU (i.e., a per-mitted TSD facility).*

1. *Many waste streams were incorrectiv desienated or desienated non-hazardous predicated on inccmplete analytical results.* Several instances were noted where vastes were nonetheless beino diseosed of at Rocky Plats' on-site, non-harerdous vaste landfill.

j. In Building 771, numerous wastes or waste strea=s were not co=pletely or adequately analyzed, or were incorrectly identified. Wastes were 1 ,

l . l . IgenJJg(ja# oniv as

radioactive, even thouch they had not been samoled or anal,vred f or hazardous wastes.

k. Rocky Flats Part B failed to deal ade-quately with incompatible wastes, using " parameters

[which) do not allow judgment as to proper TSD - [ treatment, storage or disposal) decisions...*

1. " Currently the application lacks test methods for... solids content, ash content, viscosity, heat of combustion, ... specification analysis, elemental analysis, total organic halogens, incompatibility, and cyanides."

m. "The application propose [s] the permitting of 500 hazardous and mixed waste container storage areas ... This number of storage areas seems excessive."

n. *The applicant must define which units will accept ignitable waste, reactive wastes, or incompatible wastes. The applicant must describe how these wastes are identified and labeled. .

[ Rocky Flats) must describe in greater detail the procedures and precautions used to prevent reaction of ignitable, reactive and incompatible waste." 5.44. CDH's September 28, 1987 Notice of Deficiency required DOE and/or Rockwell to correct the Part B applica-tion's deficiencies and provide CDM with revised information by December 15, 1987, stating that Rocky Flats' " failure to furnish in full the inferr.ation required by the Part B appli-cation will result in the Depart =ent initiating procedures t3t deny the oereit..." (E=phasis added.) 5.45. In a DOE =amorandum dated November 13, 1987, Raymond Ro=atowski, the Manager of DOE's Albuquerque Opera-tions Office - which oversees Rocky Plats, advised DOE's Acting Assistant Secretary for Defense Programs, inter alia,

that DOE should resist the efforts of environmental and public health authorities trying to clean up Rocky ~ Flats and f

other DOE facilities, and suggested that DOE

send [] a mes-

sage to EPA that DOE and its management contractors are

                            ,                                                           willin; to 'go to the mat " in opposing enforcement actions at DOE facilities.

5.46. On December 15, 1987, DOE's Albert E. Whiteman filed revised Part A and Part B permit applications with EPA and CDH, as well as a lengthy response to CDH's September 28, 1987 Notice of Deficiency. Among its other responses, DOE reclassified a number of wastes which were originally des-cribed in the WSC document as "non-hazardous, when in' fact they were either hatardous or mixed wastes. 5.47. On or about May 3, 1988, CDH issued its Compli-ance Order No. 88-5-3-1 entitled "In the Matter of U.S. DOE - Rocky Flats Plant," based on CDH's inspection on May 26-29, 1987 (1 5.37), finding DCE and/or Rockwell in violation of the Colorado Hazardous Waste Act, C.R.S. S 25-15-301, and regulations thereunder, as well as the July 31, 1986 Com-pliance Agreement. The Co=pliance Order cited DOE and Rockwell with seven specific violations. Additionally, CDH noted two other violations in a cover letter, involving the plant's failure to train all personnel requiring hazardous waste training and also the plant's failure to make a herardous waste deter =ination. The Cc=pliance Order states in part (emphasis added):

IIRST VTOLATION (Inadequa':e Waste Analysis Plan)

                                                                           ~                                                                                                                                                      ~

12. During the May 26-29, 1987 inspection, inspectors for the Department requested a copy of the facility's vaste analysis plan and records of waste analysis. The waste analysis plan provided to the inspectors did not adecuately orovide for en enelvsis of waster which will provide all the inferr.ation which must be known to treat, store, or dispose of the wagtg. Specifically, during this inspection, inspectors for the department noted ,

that the vaste analysis plan did not require ade . quate testing and determinations for compatibility of wastes prior to being placed into storage for greater than 90 days.

15. DOE and Rockwell's failure to produce en adecuate weste analysis olen constitutes violations of 6 CCR 1007-3, Section 265.13 and the July 31, 1986 Compliance Agreement.

                        ..                                              SECOND VTOLATTON (Storage Without A Permit or Interim Status)

17. During the May 26-29, 1987 inspection, inspectors from the Department observed that cargo containers nu=bers 12, 13 and 16 (all part of interim status storage area reference number 1) had been moved from the landfill area to the parking lot at Building 750.

1 11 . The Part A permit application submitted by DOE and Rockwell on Novamber 26, 1986 requested changes to interim status storage areas for cargo i containers, none of which addressed =oving cargo containers from the landfill area to another location. Cenelusions of Lew

19. 6 CCR 1007-3, Section 100.11(d) states that *(1) pe.rsons who have filed Part A of their

                                                                                -    58 -

L ( . .. { permit application and have interim status for the treatment storage, or disposal of hazardous waste identified or listed in Part 261 are recuired to inform the director of any chances in their f acil-ity or coeration which recuire modification of the . inf ormation contained in their Part A acclimation.-

   . This section further states that *(2) The following changes require prior approval by the Directors (iii) significant changes in the processes or addi-tional processes used to treat, store or dispose of hazardous waste.'
          , 20. 6 CCR 1007-3, Section 100.11(d)(3) states that "the owner or coerator of a f acility who f afis I     to corolv with the updatine requirements of cara-l oraohs fdifli and fdif2) of this_section does not receive interim status as to the wastes not covered by duly filed or amended Part A applications.

l

21. DOE and Rockwell's movement of the cargo containers that store hazardous waste before receiving approval constitutes violations of 6 CCR 1007-3, Section 100.11(d) and Section 100.10 and of i Section 25-15-30G(1)(b), C.R.S. (1987 Supp.) and of the July 31, 1986 Compliance Agreement.

l l TMiRD VIOLATION (Tailure to Maintain An Accurate Operating Record)

                           .     . e Findines of Tact l                                                                   ;

23. During the May 26-29, 1987 inspection, 1 inspectors from the Department asked to review the l facility's operating record. The inspectors were l provided with documents which included Waste Processing Request Forms, Storage Area Drum Tags, !

Hazardous Waste Operators Log, Masardous Waste ' Computer System Log and Manifests for off-site shipments of hazardous waste. A review of these , documents by the inspectors revealed that tha l hazardous Waste Operator's Log was not sufficiently l current to track the quantity and location of hazardous vaste at the facility. The inspectors also noted that significant discrepancies exist between the various parts of the f acility's operating record. l

24. During the May 26-29, 1987 inspection, inspectors noted that the feeility cersennel were ,

l l l l

unable to eroduce any records of waste an'alysis of waste before the waste was olaced in_ greater than

                     - 90 day storace, i

27. DOE and Rockwell's failure to maintain an accurate operating record with records of waste - analysis constitutes' violations of 6 CCR 1007-3, Section 265.73 and the July 31, 1986 Compliance

                    ' Agreement.

JOURTH VIOLATION (Failure To Have Satellite Storage Areas Under the Control Of The Process Operator) FIFTH VIOLATION (Tailure to Maintain Required Aisle Space) SIXTN VIOLATION (Failure.To Mark The Accumulation Date On Containers)

37. During the May 26-29, 1987 inspection, inspectors from the Department observed four con-tainers, numbers 87489.2, 87489.3, 87849.4 and 874t!9 which were not marked with the dates upon

whicn the period of accumulation began. These-containers were stored in a cargo container reference number 995, located near building 980. The inspectors observed that the cargo container was marked as a Hazardous Waste 90 Day Accumulation Area. Cenelusions of Lgg

39. DOE and Rockwell's failure to mark accumulation dates on these containers constitutes violations of 6 CCR 1007-3, section 262.34(a)(2) and the July 31, 1986 Compliance Agreement.

SEVENTH VIOLATION (Tailure to Provide Written Notification to . the Department of Incidents Requiring Implementation of the Contingency Plen)

41. On or about June 15, 1987 and July 24, 1907 fires did occur in or near the Fluidized Bed Incinerator located in Building 776 at the Rocky -

Flats Plant. -

              .            4 2. - Although DOE and Rockwell provided verbal notification of these two incidents to the Depart-ment on the days that they occurred, the Department-(.sd not receive a written report within the time-frames required by 6 CCR 1007-3, Section 265.56(j) for either incident.

43. On November 4, 1987 the Department received a letter from the DOE, dated October 30, 1987, which included a copy of the Final Unusual Occurrence Report for the Fluid Bed Incinerator incident of July 24, 1987.

46. DOE and Rockwell's failure to' submit a written report to the Depcrtment on each of the fires within 15 days after each incident consti-tutes violations of 6 CCR 1007-3, Section 265.56(j).

5.48. Based on the cited violations, CDH issued the following order: Based upon the foregoing Findings of Fact and Con-clusions of Law, and pursuant to Section 25-15-308 C.R.S. (1982 and 1987 Supp.) the Department of Energy and Rockwell International Corporation are hereby ordered to comply with the following:

47. Within 60 days of the effective date of this Order submit to the Department a waste analysis plan that meets the requirements of 6 CCR 1007-3, Sectior. 265.13.

48. Within 90 days of the effective date of this Order, submit records of waste analysis perfor=ed to implement this waste analysis plan for all hazardous waste in storage for more than 90 days. 1

49. Within 60 days of the effective date of this Order, certi.fy in writing to the Department that the facility's operating record accurately E_-_________---_.---_____--- - - - - - - - - . . - - _ _ . - i

tracks the quantity and location of hazardous waste at the facility.

50. Effective immediately take all action necessary to insure that no changes to interim status operations which requira Department approval -

are made without first receiving that approval.

51. Within 60 days of the effective date i of-this Order, submit a closure plan for the container storage area (cargo containers) near the.

landfill...

52. Within 60 days of the effective'date of this Order, submit. documentation to the Department that all satellite accumulation areas are under the control of the process operator...

53.- Within 60 days of the effective date of this Order, submit documentation to the Department that adequate aisle space is maintained between containers of hazardous waste in Building 664.

54. Within 30 days of the effective date of this Order, certified in writing to the Department that all containers of hazardous [ waste) stored in 90 day accumulation areas are properly marked with accumulation start dates.

The Second violation is an apparent criminal violation of RCRA, 42 U.S.C. S 6928(d)(2), which prohibits the knowing storage of hazardous waste without a permit or interim status. Each of the remaining violations (with the exception of the Sixth violation) is alse;an apparent criminal violation of RCRA, 42 U.S.C. S 6928(d)(2), involving the illegal treatment, storage or disposal of hazardous waste, in violation of material interim status conditions or requirements. fee 40 C.T.R. Part 265.

5.49. During the period June 13-17, 1988, EPA officials Nathaniel Miullo and Martin Nestmark and CDH officials James . Kiefer and Michael Sattler inspected parts of-Rocky Flat _s for RCRA compliance. While the inspectors were barred from view-l ing a number of areas based on national security concerns, a number of RCRA violations were observed in other areas. The I facility's operating records did not accurately track hazard-ous wastes. The storage logs and the plant's computerized 1 hazardous waste data base were not consistent. The data base still did not contain information that ng.g.t. be known in order to comply with RCRA's regulations, such as dates of storage, compatibility of wastes and various information on radio-activity. Wastes were marked with wrong compatibility codes and some incompatible wastes were stored together. Some storage areas did not have permits or interim status, stored drums did not have accumulation dates and some wastes had been stored for more than 90 days without a permit. The facility failed to maintain inspection records for three years as required, with some operations having records dating back only to May 1987 or April 1988. These conditions not only violated RCRA's interim status storage requirements, but also the July 31, 1986 Compliance Agreement. 5.50. By letter dated July 19, 1988, CDH informed DOE and Rockwell that the groundwater monitoring system at Rocky Flats is still seriously deficient and "do(es] not adequately j

                                                                                                                              -      63 -

l l _ _ _ _ _ _ _ _ _ _ _ _ _ . _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ . _ _ _ _ . _ _ _ _ . _ ________....__._______j

meet the interim status groundwater monitoring objective.- The letter continues by stating that "[d) deficiencies in the system . . . are serious enough to be considered (RCRA) vi sla tions ..." 5.51. No final action has been taken or further com-plaints filed or citations issued concerning CDH's May 3, 1988 Compliance Order (1 5.47) and the violations found during the EPA-CDH inspection on June 13-17, 1988 (f 5.49). These enforcement matters are ongoing and are being negoti-ated with DOE and Rockwell. 5.52. On or about August 2, 1988, Rocky Flats f!1ed a j revised Part A RCRA permit application with EPA and CDH, l concerning hazardous and mixed wastes. This Part A application is still pending. 5.53. Inspections by EPA and CDH in November-December 1988 continue to reveal alleged waste violations. By a . 1etter dated January 6, 1939, CDH informed DOE of various l l violations obcerved during the November-December inspections, i including the storage of hazardous and mixed wastes without a 1

RCRA permit or interim status, leaking drums, inadequate waste analysis, and lack of storage accumulation dates. j 5.54. On March 17, 1989, CCH advised DOE of its intent to issue a Notice of Intent to Deny much of Rocky Flats' Part l l B permit application, based on insuf ficient data being pro-vided by DOE and Rockwell and inadequate security-cleared I i i

     -.,--n_ . . _ -.__..-                  -__       _ _ _ _ _ _ _ _ _ _ _ _ _ - _ _ _ - - _ _ . _ _ - - _ . _ _ . _ - _ _ _ _ _ _ . - . . - - _ - , _ _ _ . . - _ - _ _ - _ . _ - - - - - - - _ - _ _ . _ _ _ _ - - - - _ -

r l * !~ regulatory personnel to conduct the necessary permit analy-sis. In its response dated May 2,1989, DOE indicated its willingness to request a continuance "until such time (as) C'DH (can) enhance Q-cleared staff and review, to its - satisfaction, information relative to the issuance of a final permit.- 5.55, In sum, the investigation to date shows a sub-stantial history of RCRA' issues and alleged violations at Rocky Flats, and establishes DOE's and Rcekwell's clear knowledge of federal environmental law and regulation. Rocky Flats does not have a RCRA permit and several enforcement proceedings are ongoing. There is probable cause to believe that hazardous and mixed wastes have been illegally treated, stored and disposed of at Rocky Flats, in violation of 42 U.S.C. 5 6929(d)(2); that DOE and Rockwell have repeatedly failed to provide EPA and CDH with complete and accurate waste information necessary to proper regulation; that wastes have been improperly mixed, contrary to 42 U.S.C. 5 6928(d) (2); and that false statements and concealment of material i facts have occurred, in violation of 42 U.S.C. S 6928(d)(3) . and 18 U.S.C. 5 1001. In conjunction with 11 1.18 - 1.22, 1 there is probable cause to believe that evidence of such - crimes is located at Rocky Flats, in Buildings 111, 115, 122, j 123, 706 and 776, as well as the Wind Systems Building.

i - a

6. ILLEGAL TREATMENT. STORAGE AND DISPOSAL OF HAZARDOUS ,

AND MIZED WASTES , Based upon a review of EPA and CDH records, other government documents, reports and studies, and mat'e rials submitted by or obtained from DOE and/or Rockwell, as well as other sources of information stated herein, your affiant ! states as follows: 6.1. Rocky Flats does not have a RCRA permit to treat, store or disoose of hazardous or mixed wastes, and Rocky Flats' December 15, 1987 Part B application is still pending. Accordingly, a particular building or other unit at Rocky l Flats may legally treat, store or dispose of hazardous or mixed wastes oniv if that unit has " interim status." See 5 i 4.7. The knowing treatment, storage or disposal of hazardous ;

         ._               or mixed wastes without a permit or interim status is a 42 U.S.C. S 6928(d)(2).

felony RCRA violation. 6.2. Your affiant has determined the interim status of various buildings or units at Rocky Flats by reviewing the ! Part A permit applications filed by DOE and/or Rockwell with EPA and CDH, as well as an October 9,1988 letter from CDH's j l Fred Dowsett to DOE's Albert E. Whitenan, which summarizes j j the status of various units. Units not listed on any Part A j l aoolication do not have (and cannot have) interim status. l 6.3. Based upon the review described in T 6.2 and also the WSC infor=ation described in if 5.38-5.40 (unless other-Oise specified), the following buil' dings or other units at I j I l i

1 Rocky Flats either: (a) do not have interim status and rece? ve hac Wous or mixed wastes for " final disposel-U (and are therefore illegal treatmeitt, storage or disposal facili- . I ties); or (b) generate hazardous or mixed wastes which ' illegally go to such units:V Unpemitted Buildine Name or Location Generator TSD 111 Administrative Offices YES 373 Cooling Tower & Pump House Y Y 374 Liquid Waste Treatment Y Y ; Facility '

                                                                            ~443      Steam Plant                            -

Y 444 Production Operations Y 460 Non-Nuclear Manufacturing Y i Building 551 General Warehouse Y O The term " final disposal," as used in the WSC document, appears to mean the final on-site facility at which the waste is handled. According to EPA Region 8 regulator Nathaniel Miullo, hazardous waste to be shipped off-site is collected at Unit 1, Rocky Flats' main hazardous waste storage unit. Mr. Miullo has also informed your affiant that low-level radioactive waste, which may include mixed wastes, are collected in Units 750 and-904 and in Building 64, before being shipped off-site. Thus, if the destination for " final disposal" is other than Units 1, 750 and 904 or Building 664, it may reasonably be presumed that the waste is not being shipped off-site and that the indicated " final disposal

site is the waste's ultimate destination.

F Your affiant has reviewed Y 6.3 with EPA's Nathaniel Miullo, who is very f amiliar with Rocky Plats and its RCRA documents, and has been at Rocky Flats on numerous tours and inspections. Mr. Miullo is not aware of any information that contradicts Y 6.3 and { he has not been informed by either DOE or Rockwell that the ' particular WSC infor=ation referenced in 16.3 is not accurate.

559 Plutonium Analytical Y Laboratory 563 Cooling Tower , Y 668 Drum Certification Y 701 Process Development Y 705 Coatings Laboratory Y 708 Compressor Building Y , 712 Cooling Tower Y 750T(2) Trailer Complex Y 770 Pipe Fabrication Shop Y 771 Plutonium Recovery Facility Y 779 Pu Development Y 780 Paint Storage Shed Y 881 Manufacturing and General Y Support 885 Paint and Oil Storage Y 988/995 Sewage Treatment Plant Y Y 991 Production Control Product Y Warehouse

                                                                           --                                   Landfill                                                                                                                                                                                    Y
                                                                           --                                   North Spray Field                                                                                                                                                                           Y
                                                                           --                                   South Spray Field                                                                                                                                                                           Y Buildino 443                                                                                                                             .

6.4. Building 443 at Rocky Flats is a steam plant. The building houses two processes and is the final on-site disposal location for at least one hazardous waste stream

L L l a l from another Rocky Flats building. Building'443 has neither j a RCRA permit nor interim status. Building 374, the liquid , waste treatment facility, generates 10 million gallons per _ 1 year of

evaporator water" (WSC No. 20500) which is l designated as hazardous wastes.E The afinal disposal" site j for such evaporator water- is designated in the WSC document as " utilities," which includes Building 443.

i 6.5. On December 27, 1988, DOE's Albert E. Whiteman submitted an NPDES (i.e., Clean Water Act) permit renewal y application to EPA. The application indicates that the eva-porator water initially goes to the steam plant (Building 443) and also a cooling tower (designated as Building 373), and then to the sewage treatment plant, Building 998/995. 6.6. Buildings 443, 373 and 995 do not have a RCRA

            .                                                             permit or interim status. There is therefore probable cause to believe that hazardous wastes have been, and are being illegally treated, stored and/or disposed of in Buildings 443, 373 and 998/995, in apparent violation of 42 U.S.C.

U Rocky Flats' May 30, 1985 Part A permit application stated that all mixed wastes at Rocky Flats were treated in Buildings 774 and 374, and Rocky Flats' April 1986 CEARP indicates that Building 374 has now replaced Building 774 as Rocky Flats' primary radioactive liquid process waste treatment facility. CEARP at V-58. The August 2, 1988 revised Part A application confirms that this amount of

evaporator water" is generated and treated. This further continuity between the WSC document and the.pending application confirms the factual basis cf this allegation.

1 s, 1 5 6928(d)(2), and that evidence of such crimes is likely to i be found in Buildings 443, 373 and 998/995, where the alleged violations take place, and in Building 374, where the w stes w'ere, and are generated, and, as explained in it 1.18 - 1.22,l l in Buildings 111, 115, 122, 123, 706 and 776, as well as the j Wind Systems Building. I Buildino 991 i 1 l 6.7. Building 991 is the production control product s warehouse, and it handles various materials and liquids whicht ! t are received and distributed throughout the plant. EPA's Nathaniel Miullo has previously inspected B:tilding 991 arid ! advises that there are connecting tunnels and/or underground vaults that are a portion of Building 991. The building houses approximately five processes and is the final on-site least disposal location for five waste streams (including at one hazardous and one mixed waste) from other Rocky Flats . buildings. 6.8. Although it does not have a RCRA permit or interim status, Building 991 receives the following hazardous and mixed wastes for

final disposala:

Building of WSC Number Generation Waste Description Waste beryllium samples (H) 334031 881 4590 881 Beryllium chips (M) El This waste is listed as " hazardous"inRockyPlats'Auguf 2, 1988 revised Part A application, althougn it was listed in'

                      .WSC document as "non-hazardous."

{ *

                                                                                                                                                                    .      .j l

6.9. There is probable cause to believe that hazardous < and mixed wastes have been, a6d are being illegally treated, . stored and/or disposed of in Building 991, in apparent vi-cla- . tion of 42 U.S.C. S 6928(d)(2), and that evidence of such crimes is likely to be found in Building 991, where the alleged violations take place, and in Building 881, where the - wastes we're, and are generated, and in Buildings 111, 115, , i 122, 123, 706 and 776, as well as the Wind Systems Building. i i Landfill 6.10'. The landfill is not described in the WSC docu-ment. Acccrding to EPA's Nathaniel Miullo,-the landfill is where Rocky Flats' main hazardous waste storage was located , prior to such storage being moved inside Rocky Flats' production complex. The landfill is located north of j Building 771, outside the production complex. Adjacent to the landfill, on the east side, is a pond which drains into . the Walnut Creek drainage system. . 6.11. According to the WSC document, the landfill is the final disposal location for approximately 190 waste , streams (including at least 13 hazardous and three mixed l wastes) from various Rocky Flats buildings. 6.12. Although it does not have a RCRA permit or interim status, the landfill receives the following hazardous or mixed wastes for " final disposal:" l I

Fa J p . i I h:.y e e f Building of ge7,eration Waste Description WSC Number - 460' used kimwipes (H) 890 l 551 kimwipes/ degreasing residues (H) 6300 l 563 sump sludge (H) 20580 l 668 rags with methyl alcohol (H) 9570 i 705- kimwipes (M) 20060 705 kimwipes (H) 20250 708 rags with freon, TCE (H) 10690 712 sump sludge (H) 20590 750T soiled kimwipes (H) 6020 750T -kimwipes (H) 6040 . 770 combustibles (H) 22650 I 770 rags (H) 22570 779 water chiller filters (M) 15730 780 rags with TCE (H) 9590 885 rags (H) 5110 995 .dumpster (M) 20620 6.13. There is probable cause to believe that hazardous and mixed wastes have been, and are being illegally disposed of at Rocky Flats' landfill, in apparent violation of 42 U.S.C. S 6928(d)(2), and that evidence of such crimes is likely to be located there, and in Buildings 460, 551, 563, 668, 705, 708, 712, 750T, 770, 779, 780, 885 and 995 where the wastes were, and are generated, as well as Buildings 111, 115, 122, 123, 706 and 776, and the Wind Systems. Building.

7. RCRA INCINERATION VIOLATIONS Based upon a review of EPA and CDH records, other government documents, reports and studies, and materials submitted by or obtained from DOE and/or Rockwell, as well as other sources of infor=ation stated herein, your affiant states as follows:

_ _ _ _ _ - _ _ _ _ _ __ _ - _ . _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ .___ ______w

7.1. The crux of the allegations concerning Rocky Flats' illegal-incinerationjof hazardous and mixed wastes are twofold. First, by the terms of the WSC document, an old Incinerator in Building 771 has been incinerating at least a small quantity of hazardous waste and a substantial quantity of mixed waste, without a RCRA permit or interim status. Second, a second incinerator, located in Building 776, has been the subject of a RCRA permit application, which stated that the Building 776 incinerator would incinerate very large quantities of hazardous and mir.ed wastes. However, pending resolution of its permit application, DOE has maintained that the Building 776 incinerator was not, and is not being used to incinerate wastes. The large amount of waste designated for incineration in the allegedly dornant Building 776 incin-erator, coupled with Rocky Flats

established shortage of legal storage space, makes it likely that some or all of this waste has been illegally incinerated in the Building 776 and/or 771 incinerators, or otherwise illegally stored or handled at Rocky Flats. There is also probable cause to believe that the Building 771 incinerator was operated at a time in December 1988 when EPA and the public were told that the building was shutdown. .

1 i _____._-____.__________.-__._._____________m.__.__ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ . . _ _

i Illecal Incineration of Westes I in Buildino 771 i 7.2. According to Rocky Flats' officials, Building 771

                                                                 .is a " plutonium recovery" facility and consists of labora-tories, " plutonium recovery operations" and related support operations. The building houses approximately 48 processes, including what has been designated as a "Specia.1 Nuclear Materials Recovery Incinerator."                                                                              Building 771 is the final
  '                                                               on-site disposal location for 58 waste streams (including at least one hazardous and eight mixed wastes) from other Rocky Flats buildings.

7.3. Although the Building 771 incinerator has a Clean Air Act permit from CDH,D the incinerator does not have a RCRA permit or interim status to " treat" (i.e., incinerate) hazardous or mixed wastes.M Your affiant has also been W The Clean Air permit restricts the incinerator to incinera-tion of plutonium-contaminated plastic, paper, rubber, cloth, wood and other refuse. E The term

treatment" is defined in RCRA, 42 U.S.C. S 6903(34) ass any method, technique, or process, including neutrali-zation, designed to change the physical, chemical, or biological character or composition of any hatardous waste so as to neutralize such vaste or so as to render such waste nonhazardous, safer for transport, amenable for recovery, amenable for storage, or reduced in volume. Such term includes any activity or processing designed to change the physical form or chemical com-position of hazardous waste so as to render it non-hazardous.

informed by EPA's Nathaniel Miullo that because the Building 771 incinerator was constructed in the 1950s - prior to RCRA's hazardous waste incineration standards, it is highly

unlikely that the incinerator meets EPA's current stringent performance standards for RCRA incinerators, including the 99.99% destruction and removal efficiency standard for hazardous organic compounds. 40 C.F.R. 264.343.lY 7.4. According to the WSC document, the following hazardous or mixed wastes are sent to Building 771 for " final disposal" by incineration: Building of Generation Waste Description WSC Number - 559 non-line combustibles- (M) 16120 559 non-line combustibles (M) 16170 559 non-line combustibles (M) 16220 559 non-line combustibles (M) 16290 559 non-line combus tibles (M) 16320 779 non-line generated burnables (M) 19510 779 trash (M) 15610 779 burnables (M) 19680 779 kimwipes (H) 1571&d/ 1U A recent GAo study described Building 771 as "an old chemi-cal plant needing continual repair of tanks, piping and utili-ties. Aspects of the facility do not meet current building and safety codes." GAO, Summary of Maior Problems at DOE's Rocky Flats Plant (October 1988), at 19. Building 371 was completed in l 1981 for the purpose of replacing Building 771, but, because of severe design and construction problems, it has not been able to do so. Egg 1 8.1. Building 771 therefore continues to operate '

          "with old and deteriorated equipment." GAO, Alternatives for Relocatine Rocky Flats Plant's Plutonium Oeerations (April 1987),

at 8, 16-17. EU The August 2, 1988 Part A application does not list these wastes. Rockwell, however, has taken the position that the ' wastes incinerated in the Building 771 incinerator are

recovered" and are therefore not subject to RCRA. EPA has

t-1 7.5. There is probable cause to believe that hazardous l and mixed wastes have been, and are being illegally treated . (,1.e. , incinerated) in Building 771, in apparent violation of 42 U.S.C. S 6928(d)(2), and that evidence of such crimes is j likely to exist in Building 771, where the alleged violations have occurred, and in Buildings 559 and 779, where the wastes t were, and are generated, and in Buildings 111, 115, 122, 123, 706 and 776, as well as the Wind Systems Building, where relevant documents are likely to be maintained.EY rejected this position. DOE's and Rockwell's claim that the Building 771 incinerat only recycles plutonium and does not treat or dispose of other , ' hazardous and mixed wastes is also questionable, given Rocky Flats' intentional mixing of separate wastes. 111 T 5.34. In its September 28, 1987 Notice of Deficiency (T 5.42), CDM founc. that numerous wastes associated with Building 771 were not , adequately analyzed and were incorrectly identified. Various wastes were identified only as " radioactive," even though they' had not been analyzed for other hazardous constituents. MY On February 1, 1989, the Sierra Club filed a citizen enforcement suit under RCRA, 42 U.S.C. S 6972(b), against DOE

                  -              Rockwell concerning alleged RCRA violations involving the Building 771 incinerator.                              Sierra Club v. Rockwell Internatione:

core. (Civ. No. 84-181, D. Colo.). On April 4, 1989, DOE filec its Answer and admitted to incinerating mixed waste in the Building 771 incinerator, but claimed that such incineration constituted a plutonium-recovery operation and that such incin-eration was not RCRA-regulated. Department of Justice civil attorneys who filed the Answer on DOE's behalf were unaware of the criminal investigation at Rocky Flats, and were therefore unaware of f acts known to the criminal investigators which migt bear significantly upon the factual and legal validity of the Answer. In view of the uncertain basis for DOE's Answer, your affiant has been informed that DOE will request a stay of the civil proceeding pending further resolution of the criminal investigation.

h Illecal Incineration of wasten Desienated for Incinerators in Buildinc 776 7.7. Building 776 is described in the WSC document as housing various waste handling activities, including inciner-

ators and size reduction processes. On November 8, 198'5, Rocky Flats submitted Part A and Part B RCRA permit appli-cations to treat hazardous wastes in two incinerators located in Building 776, described as " fluidized bed incinerators." A fluidized bed incinerator is not a conventional open-flame incinerator, but involves a thermal-chemical process. One of the fluid bed incinerators in Building 776 is described as a pilot" or test-model incinerator. 7.8. On October 22, 1986, DOE's Albert E. Whiteman submitted a draft trial burn plan- for the Building 776 incinerator to CDH's Director of Waste Management, Kenneth Waesche.EY The letter indicated that the Building 776 incin-erator would meet RCRA's incineration standards and also stated (emphasis added): We are working toward a preferred time for the trial burn of early February 1987. This time frame is needed since we have limited storace tanks for - organics within our waste treatment buildings, And . our storsee tank caeacity should be exceeded in March or Aoril 1967, by current best estimates. 1E A trial burn demonstrating the proper and safe operation of } an incinerator is a requirement for receiving a RCRA permit. See 40 C.F.R. 270.62.

      .                                                                                                                                                                                                           i 7.9.      By a letter dated April 6, 1987 from. DOE'c                                                                                                                           *
                                                                                                                                                 ~

Assistant Secretary for Defense Programs to U.S. Senator

William L. Armstrong, DOE stated that a " trial burn" would only be conducted after DOE received approval from EPA and i CDH, and that the Building 776 incinerator, absent such approval, would not be operated on a production basis. f Neither EPA nor CDH have ever approved a trial burn. 7.,10. On learning that the Building 776 incinerators had in fact been operated more than previously disclosed, CDH 21, 1987 from DOE's requested and received a letter dated May Albert E. Whiteman specifying the total hours that the fluid-ized bed incinerators had been operated.lU The letter (and its attachments) indicates that the incinerators were used a trial basis" as follows: Dates _ Hours 1,100 6/73 - 6/74 1,325 ' 2/75 - 12/76 1,691 10/76 - 10/79 unspecified 3/87(sic) - 7/80 4 5/81 154 10/85 7.11. Mr. Whitaman's May 21, 1987 letter also stated on that Building 776's incinerators were expected to treat, an annual basis, over 200 tons of Rocky Flats waste from EY Rocky Flats' November 8, 1985 Part A application described the "use" of a fluid bed incinerator, and stated that the capacity of such incinerator,

                                                                                                      " based on operational experience," was 34 liters an hour.                                                   (Emphasis added).

F 4 l almost 200-separate waste streams, including approximately 50,000 gallons of liquid hazardous or mixed wastes. The letter's attachment also stIates, at 47 (emphasis added): - 1 L The Rockv Flats Plant has limited storace capacity l- that is specifically desianed for licuid mixed wastes. At present generation rates, these storage facilities will be nearine caoacity in amorexi-mately 2-3 months, at which time alternative stor-age methods will be sought. Therefore, it is necessary that the fluidized bed incinerator start processing this waste backlog under interim status. 7.12. On August 2, 1988, Rocky Flats filed a revised , i Part A permit application which specified that the following wastes, among others, will be incinerated: various solvents and solvent-contaminated solid wastes, chemically contamin-ated uranium oxides, waste. oil, used filters from plant pro-cesses, acids and sludges. The Part A application estimates

that over 475,000 pounds of " solid hazardous and mixed wastes (from over 200 waste streams) and over 110,000 gallons of -liquid- hazardous and mixed wastes (from over 150 waste streams) will be incinerated on a yearly basis. 7.13. Since DOE and Rockwell did not apply (and have never applied) for a RCRA permit for any other incinerator, or obtained interim status for another incinerator, it may reasonably be assumed that such wastes are d'signated e for Building 776's incinerator. 7,.14. According to DOE's May 21, 1987 letter (1 7.10), the Building 776 incinerator has not been used since October 1985.

7.15. During a regulatory inspection at Building 776 on January 11, 1989, Rocky Flats informed EPA and CDM inspectors j I that, due to the Building 776 incinerator's non-operational status, the wastes designated for incineration were being

stored in Building 776 and Building 556. These storage facilities are the following size, according to a October 9, , 1988 letter from CDH's Fred Dowsett to DOE's Albert E. Whiteman: Buildino Unit Capacity 776 12 20,000 gallons 776 27 2,750 gallons 556 10 6,660 gallons Total 29,410 gallons 7.16. This 29,410 gallons of legal storage capacity does not provide for the 110,000 gallons of liquid wastes described in Rocky Flats' August 2, 1988 Part A application (5 7.12), let alone the 475,000 pounds of solid wastes.lU LU on May 2, 1988, DOE's Albert E. Whiteman filed an Annual Hazardous Waste Generation and Management Report with EPA and CDH, concerning waste activities in 1987 (*1987 Annual Report"), as required by 40 C.F.R. 265.75. The Annual Report requires, among other things, a description and amount of each hazardous and mixed waste shipped off-site. In 1987, only 6,504 gallons of liquid hazardous wastes and 38,053 pounds of solid hazardous wastes were listed as shipped off-site. Both amounts are less than 10% of the estimated wastes in 17.12. The 1987 Annual Report may conflict in certain respects with the August 2, 1988 Part A application regarding the treatment of certain wastes. For example, certain wastes which are described as evaporated in the Annual Report appear designated for incin-eration in the permit application. The Annual Report als'o indicates thaat Rocky Flats has attempted to minimize (or reduce)

                   - - - - - - - - - ~ _ _ _

7.17. The large volume of hazardous and mixed wastes continually generated at Rocky Flats, much of which has repeatedly been designated for treatment or disposal in the . B,uilding 776-incinerator, combined with public statements , that the Building 776 incinerator is not being used and Rocky Flats' shortage of legal storage space, establishes probable cause to believe that one or more crimes have occurred, and are occurring at Rocky Flats, involving the illegal incineration of hazardous and mixed wastes in the Building 776 incinerator (despite statements to the contrary), the illegal incineration of such wastes in the Building 771 incinerator, or other illegal treatment, storage or disposal i of ha::ardous and mixed wastes, in violation of 42 U.S.C. S 6928(d)(2).Pl There is probable cause to believe that the amounts of approximately 10 kinds of hazardous and mixed wastes generated at the plant. It is unclear whether the August 2, 1988 Part A application was-adjusted to reflect these waste minimization efforts, even though it was filed after the 1987 Annual Report. Even if one assumes, however, that some wastes designated for Building 776 have instead been shipped off-site and that the quantities of some wastes have been reduced, the point remains that vast amounts of hazardous and mixed wastes have been designated by plant officials to be incinerated in the Building 776 incinerators, and such vastes have apparently not been properly treated, stored or disposed of. El The continued, and perhaps clandestine use of the Building 771 incinerator at a time when Building 771,was supposed to be shutdown (11 7.18 - 7.23) is further reason to believe that one or more of these propositions are true. Additional probable cause to learching Building 776 is also found in a report concerning the .-CDd June 13-17, 1988 inspec-tion at Rocky Flats, stating that 211 ding 776 contains a hazardous waste database, and also houses the facility's " Waste 1 __-__--__ _ _______ -

evidence of such crimes is located in Buildings 776 and 771, where such crimes have occurred, and in Buildings 111, 115, , 122,123 an'd 706, as well as the Wind Systems Building, where-relevant documents are likely to be maintained. False Statements Concernine Buildinc 771 Incinerator 7.18. On October 8, 1988, Rockwell's principal on-site Rocky Flats manager, Mr. Dominic Sanchini, publicly stated that Building 771 would be shut down, due to potential radiation exposure problems, until the necessary improvements and clean-up could be accomplished. Subsequent statements by Rocky Flats' DOE and Rockwell officials reiterated that Building 771 was closed, and would remain closed, until safety problems were adequately addressed. On or about

                ..       January 20, 1989, DOE officials announced that Building 771 was being reopened.lU cperations Group." It may reasonably be expected that documents and records relevant to Rocky Flats' waste management practices are located in Building 776 as part of these activities.

EV An October 1988 GAO study summarized the " shutdown as follows: On October 7, 1988, after discussion with DOE's headquarters (Environ =ent, Safety & Health) staf f and DOE's defense program officials, DOE's Albuquerque Operations Office ordered the shutdown of activities in Buildino 771. Shutdown operations began October 8, and DOE expects the entire operation to be shutdown on or before Novamber 4, , 1988. DOE is currently developing a restart plan before l , resuming operations in Building 771.

l l 7.19. Notwithstanding (and contrary to) such state-i ments by various DOE and Rockwell officials, FBI surveillance has est'ablished probable cause to believe that the Building . 7.71 incinerator was in fact operated in December 1988, as I explained below. 7.20. On December 9, 10 and 15, 1988, an FBI airplane with infr,a-red observation and photographic equipment con-ducted surveillance over Rocky Flats. While a daytime flight on December 9, 1988 indicated that the Building 771 incin-erator was not thermally active, similar surveillance on the nights of December 9, 10 and 15 indicate that the incinerator was probably being operated on each of those nights. Your affiant was a passenger on the FBI airplane on December 9 and 15, and has reviewed videotapes taken on all three days. 7.21. EPA experts in infra-red photographic interpreta-tion from the Environmental Monitoring Systems Lab in Las Vegas, Nevada, have interpreted the FBI aerial photography and confirm that the Building 771 incinerator stack was thermally active on the nights of December 9, 10 and 15, 1988. The EPA experts specifically considered and rejected , the possibility that Building 771's regular heating system could account for the observed thermal activity. GAO, Summarv of Maior Problems at DOE's Rockv Flats Plant (October 1988), at 5 (emphasis added).

E i - _. 7.22. A follow-up FBI overflight on February 28, 1989, after Building 771 was back in operation, indicated that the Building 771 incinerator stack was approximately as hot as , the same stack was observed in the December nighttime over-f" lights. 7.23. There is probable cause to believe that the Building 771 incinerator was operated on at least December 9, 10 and 15, 1988, contrary to public statements by DOE and Rockwell officials that Building 771 was shut down, and that material' false statements were therefore made, or material facts concealed, concerning matters within EPA's juris-diction, in violation of 42 U.S.C. S~6928(d)(3) and 18 U.S.C. S 1001. There is also probable cause to believe that evidence of such crimes is located at Rocky Flats, in Buildings 111, 115, 122, 123, 706, 771 and 776, as well as the Wind Systems Building.

8. CmrEP . ILLEGAL TREATMENT. MRAGE OR DISPOSAL OF HAZARDOCS ?lm n1XED WASTES Based upon a review of EPA and CDH records, other government documents, reports and studies, and materials submitted by or obtained from DOE and/or Rockwell, as well as other sources of information stated herein, your affiant l states as follows:

Buildine 371 8.1. DOE began construction on Building 371 in 1973, with a view toward the new building replacing Building 771. l

) l When Building 371 was completed in 1981, however -- at a 1 final cost of approximately $215 million, it was found to be - largely unusable, due to severe design and construction-problems. See, GAO, Alternatives for ReloegIino Rockv Flats l Plant's Plutoniun operations (April 1987), at 8, 16-17. The estimated cost to make Building 371 fully operational as originally planned -- which would involve almost its entire reconstruction -- is $300 million. 11 8.2. Rocky Flats' August 2, 1988 Part A application lists two " nuclear material recovery incinerators" as housed in Building 371. No RCRA permit has been requested for either of these incinerators, and they do not have interim status. According to DOE and/or Rockwell, both incinerators have been dismountled. 8.3. On November 4, 1988, EPA's Nathaniel Muillo, along with CDH's Fred Dowsett and Jim Kiefer, inspected Building 371, including areas used to store hazardous, mixed and transuranic wastes. Building 371 does not contain any areas which are RCRA-permitted or otherwise authorized for storage of hazardous or mixed wastes.U/ Mr. Muillo's inspection report dated January 25, 1989 states: If a facility stores vaste containers with accumu-lation dates over 90 days in an area which is not EU On July 1, 1988, DOE applied to EPA and CDH for interim status for, inter alia, the storage of transuranic wastes in a Building 371, Unit 6 3 '. CDH has not granted interim status for l any transuranic storage. ; _ - - _ _ _ _ _ _ _ - - _ - - - - - -- _ - - - - - - - - - - - - l

a . .

on a Part A permit form, or has not received ap-preval from the State of Colorado for such This storage, is it is storing [ wastes) without a permit. Unit 63, in considered a major RCRA violation. . BLDG 371 is storing hazardous, mixed waste without j a permit. - 8.4. In a letter dated January 6, 1989, CDH's Fred Dowsett cited DOE for two violations in connection with the storage'of 37 drums November 4 inspection at Building 776: of mixed waste without a permit or interim status; and inadequate aisle space between stacks of drums. 8.5. EPA has received no indication from DOE or Rock-well subsequent to the November 4 inspection that the drums have been removed from Building 371. 8.6. There is probable cause to believe that mixed wastes have been, and are being illegally stored in Building S 6928(d)(2), and 371, in apparent violation of 42 U.S.C.

       ._                  that evidence of such crimes is 1Akely to be found in such building.

Buildines 988 2nd 995 8.7. Buildings 988 and 995 are Rocky Plats' sewage treatment facilities, which treat all of its sewage and sanitary waste. According to the WSC document, Buildings 988 to and 995 do not treat process waste streams, which are sent Building 374 for treatment. Rocky Flats' sewage treatment is system is designed so that effluent from the sewage plant either applied to land on Rocky Flats' property known as the

   ~           ~ ~ ~^ - -                                           ~    -%_

                                                                                                        , ' .I i

l 1

                   -North spray field" or the " South spray field- (formerly i

known as the'* East spray field"), or sent to Rocky Flats' . I reverse osmosis plant (Building 910) for further purification before being treeted in the plant's cooling towers. j According to the WSC document and DOE's November 1988 L Discharge Monitoring Report, however, the reverse osmosis plant is'not operational and is not being used. " Spray irrigation of the treated sewage is therefore practiced, whereby the waste is sprayed over the ponds to the east and adjacent to Building 995, and on the ground at the North and South spray fields. . 8.8. Buildings 986 and 995 do not have a RCRA permit or interim status, and do not have a Clean Water Act discharge permit.lU According to the WSC document, Buildings 998/995 nonetheless receives the following Rocky Flats hazardous and mixed wastes for " final disposal": Building of Generation Waste Description WFC Number 373 drips and leaks (H) 11680 701 liquid waste (H) 17670 712 water blowdown (H) 11730 779 Kathene system condensate (H) 19110 881 air washer blowdown - (H) 5010 881 cooling tower blowdown (H) 5020 IU The sewage treatment plant may legally discharge effluent in'o t holding Pond B-3, which is a CWA-permitted discharge point into South Walnut Creek. See 1 9.4. ______-_________ _ _ a

8.9. In a letter datea December 15- 1987, DOE, in response to EPA inquiries, reclassified ti.. following wastes, designated for " final disposal" at Building 995, from *

                  *non-hazardous" to " hazardous :
                                                                                                               ~
                  . Building of Generation        Waste Description                                                    WSC Number 111            developer / fixer 444 (H)C6790 blowdown waste                                                    (H)11930 460            cooling tower blowdown                                            (H)23870 According to the WSC document, Building 995 also receives these wastes for " final disposal."

8.10. There is probable cause to believe that hazardous wastes h wv been, and are being illegally treated and/or disposed of in Buildings 988 and 995, in apparent violation of 42 U.S.C. S 6928(d)(2). There is also probable cause to believe that evidence of such crimes is likely to be found in Buildings 988 and 995, where the alleged violations take place; in Buildings ill, 373, 444, 460, 701, 712, 779 and 881, where the wastes were, and are generated; at the North, South and other spray fields where the wastes were, and are aprayed; at the A, B and C-series ponds which receive 1 Bailding 995's discharges; in the Walnut and Woman Creek drainage systems which receive the ponds' discharges; and also in Buildings 115, 122, 123, 706 and 776, as well as the Wind Systems Building, where relevant documents are likely to be mainttined.

t . l-Closed 207 Solar Evaporation Ponds 8.11. Solar evaporation ponds 207A, 2073 and 207C solar 1 L evaporation ponds were, and have been RCRA hazardous waste

          '                                                                          ~

treatment units. These ponds were " closed" under RCRA by l '. Rockwell and DOE in 1986. Moreover, as required by the July 31, 1986 Compliance Agreement, DOE and Rockwell built process waste water storage tanks to store all of Rocky Flats' waste water previously stored in the solar evaporation ponds. 8.12. During 1988, Pond 207A was being drained and Building 778 was being used to mix the wastes from Pond 207A with concrete to form " pond crete." However, due to an inade-quate waste-concrete mixture, some of the blocks disin-l tegrated and the clean-up of the 207 solar ponds was, and remains halted. Since clean-up activities have allegedly ceased, Ponds 207A, 207B and 207C should not be in use. As of November 8, 1988, RCRA's interim status regulations also require all surface impoundments to have two or more liners and a leachate collection system in order to continue receiving hazardous wastes. 11e 40 C.F.R. 265.221. Solar Ponds 207A, 207B and 207C do not have the required liners or .i leachate collection system. 8.13. On December 6, 1988, a Rockwell. hazardous waste i i manager asked EPA Region 8 regulator Martin Hestmark to I authorize Rocky Flats

transfer of liquid hazardous wastes from Ponds 207B and 207C to Pond 207A. Mr. Hest = ark refused J

                                             . _ - _ .           _ _ - _ - _               _ _ _ _ __ _ _ _ _ - _ - _ _ _ - _ _ _ _ _ = _ _ _ _ _ _ _ _ _

i this request because Pond 707A' does not meet minimum techno , 1ogical requirements and was also known to leak. Moreover, l Pond 207A is supposed to be " closed, and the requested transfer might involve certain wastes banned from land disposal. 40 C.T.R. Part 268. 8.14. As described in 1 7.20, aerial surveillance was conducted over Rocky Flats on December 9, 10 and 15, 1988, by an FBI airplane equipped with infra-red photographic equip-ment. The infra-red photography has been interpreted by EPA experts at the Environmental Monitoring Systems Lab (f 7.21) as showing thermal activity in Ponds 207A and 207B on December 15, 1988. 8.15. According to EPA's photographic interpretation,

                                                                             ~
        ~

the solar ponds were thermally inactive on December 9 and 10, 1988, and were equivalent to the surrounding ambient temperature. On December 15, 1988, however - less than 10 days after EPA's Martin Hestmark denied Rockwell's request to transfer wastes from Ponds 207B to Pond 207A, Ponds 207A and 207B were both thermally active and characterized as varm.- According to the National Weather Service, the temperature in the Denver, Colorado area at approximately 10:00 p.m. on December 15, 1988 was 7 degrees Fahrenheit. 8.16. There is probable cause to believe that Solar Pcnds '207A and 207B have illegally received, treated or

stored hazardous or mixed wastes, in apparent violation of 42 U.S.C. S 6928 (d)(2), and.that evidence of such crimes is located at Rocky Flats, at or about Ponds 207A and 207B, and in Buildings 111, 115, 122, 123, 706 and 776, as well as the Wind systems Building.

9. cr2AN WATF.R VIOLATIONS Based upon a review of EPA and CDH records, other i government documents, reports and studies, and materials submitted by 0; obtained from DOE and/or Rockwell, as well as other sources of information states herein, your affiant states as follows:

9.1. Rocky Flats' operational area is located on the eastern edge of a geologic bench between two local drainages

     - North Walnut Creek and Woman Creek.                                                                          The hydrology at Rocky Flats is controlled by a thin, gravelly and very permeable alluvium, known as the Rocky Flats Alluvium.                                                                                                Surface flow in these drainages, apart from the plant's operations, is a combination of precipitation (including snowmelt and other runoff) and groundwater discharges from various seeps and springs. Surface and groundwater both flow from west to east, originating in the Front Range of the Rocky Mountains.

CEARP at II-6, III-5. 9.2. Three streams drain the Rocky Flats Plant: Rock Creek drains the northwest corner; Woman Creek drains the southern one-third; and North and South Walnut Creeks drain

the remainder. (Exhibits 3 and 4). North Walnut Creek flows to'the north of the plant and has a drainage area of approxi _ mately 1.2 square miles within the plant's boundaries. South Walnut Creek originates inside Rocky Flats' boundaries and-has a drainage area of approximately .46 square alles. North Walnut Creek and South Walnut Creek join together about half a mile inside the plant's eastern boundary, at Indiana Avenue. From that point, Walnut Creek flows southeast for less than a mile,'where it empties into the Great Western Reservoir. Great Western Reservoir provides drinking water to Broomfield, Colorado (estimated 1987 population: 27,600). CEARP at III-5. 9.3. Woman Creek, as stated above, drains the southern portion of the plant. Its drainage area is approximately 2;1-square miles, most of which is within Rocky Flats' boun-daries. Woman Creek flows southeast to Standley Lake, app-roximately 1.4 miles from the plant's east boundary at Indiana Avenue. Standley Lake is a domestic water supply to i Westminster, Thornton and Northglenn, Colorado (combined estimated 1987 population: 157,360). Id. at II-6, III-5. 9.4. In addition to the creeks themselves, Rocky Flats has built or otherwise used two or more holding, treatment or flood control ponds en each of the three major creeks. Ponds A-1, A-2, A-3 and A-4 are sequenced from west .s east on North Walnut Creek; Ponds B-1, B-2, B-3, B-4 and B-5 are l

E - R V l sequenced from west to east on South Walnut Creek; and Ponds C-1 and C-2 are sequenced on Woman Creek. (Exhibit 4). The

creeks and foregoing ponds,'together with various convey-ances, ditches and other cystems, create an interrelated network between such creeks and ponds, and there is not necessarily a linear (or only a linear) relationship among them.UY 9.5. Environmental regulation of surface waters is generally governed by the Clean Water Act, 33 U.S.C. S 1251, and the Safe Drinking Water Act, 42 U.S.C. S 300f. Protec-tion of groundwater,.at least as to hazardous substances, is generally governed by RCRA, discussed in Part 10. . 9.6. .The CWA establishes national authority to main-tair. and protect water quality and control water pollution. Discharges of pollutants to " navigable waters of the United States are strictly regulated under the National Pollutant Discharge Elimination System (* NPDES") program. Ege 33 U.S.C. S 1342. Any negligent or knowing discharge of any pollutant to " navigable waters" without a NPDES permit, or in violation of a permit condition, is a criminal violation. 33 U.S.C. SS 1311, 1319(c)(1) and (2). IV As'shown on Exhibit 4, for example, there is a conveyance from Pond A-2 to Pond B-2, and Woman Creek may bypass Pond C-2 altogether.

                         - - - . _ _ _ - - - - - _ _ - _ _ _ _ . - - - . _ _ _ - _ _ . - - _ _ . _ _ _ . _ . ~ . - - - - - _ _ _ _ _ _ _ _ _ - _ - _ - - - - - - - _ - _ - _ - - _ _ . _ _ _ _ - -                         -

9.7. While the NPDES program in Colorado is generally delegated to CDH, EPA administers the program as it relates , to federal facilities, including Rocky Flats. , 9 . 8., The term " navigable waters,* as used in the CWA, is broadly construed to include virtually all bodies of water in the United States, far beyond the literal meaning of to such waters,

                               " navigable waters," and includes tributar ies Riverside Bavview Homes, Inc,_, 474 U.S.

ffjt United States v. EPA, 765 F.2d 126, 130 121 (1985); Ouivera Minino Co. v. (10th Cir. 1985); 33 U.S.C. S 1362(7); 40 C.F.R. 5 122.2. Walnut Creek and Woman Creek are tributaries of Clear Creek, which in turn is a tributary of the South Platte River, which is a " navigable water." Therefore, North and South Walnut Creeks, Woman Creek (and the adjacent ponds and conveyances which are tributaries to Walnut and Woman Creeks, including the A, B and C series ponds), the Great Western Reservoir a'nd Standity Lake are all

navigable waters.*

9.9. Although *[a]11 known landfills, surface deposits, impoundments, and other waste contamination sites, j including leaks and spills, within the land area controlled by the plant can be attributed to olent activities," Rocky l l 1 ' Flats CEARP at V-53 (emphasis added), and even though the drainage from Rocky Flats is both self-evident and well-established, DOE and Rockwell in 1980, 1983 and again in 1985, submitted RCRA applications to EPA and CDH falsely Q-___--_-_

                                                                                                 .          i y            .     ..

j. s

1 .

stating that Rocky Flats' activities did not result in dis- 4 i charges 13) navigable waters.

                                                                                             *             \

9.10. Rocky Flats received its first NPDES permi_t in 1974. Its second permit became effective on May 20, 1981, , q l expired on~ June 30, 1984, and wss extended to December 26, / 1984. Rocky Flats' present NPDES permit, No. CO-0001333, was issued by, EPA on November 26, 1984 and expires on June 30, 1989. 9.11'. Rocky Flats' present NPDES permit covers seven outfalls from the plant, as follows: EPA Designations Discharce Locations Drainace Discharge 001 Retention Pond B-3 South Walnut Creek Discharge 002 Retention Pond A-3 North Walnut Creek Discharge 003 Reverse Osmosis Pilot Six Locations Plant (Mobile) Discharge 004 Reverse Osmosis Plant Retention Pond B-3 Discharge 005 Retention Pond,A-4 North Walnut Creek Discharge 006 Retention Pond B-5 South Walnut Creek Discharge 007 Retention Pond C-2 Woman Creek. 9.12. Rocky Flats' NPDES permit sets discharge limits for pH, nitrate, total phosphorous, biologica1' oxygen demand, suspended solids, total chromium, residual chloride, oil and grease, fecal coliform and total organic carbon. Knowing or - negligent discharges of such substances above these limits, as well as discharges of other substances, are criminal violations. 33 U.S.C. SS 1311(a), 1319(c). 9.13. The Rocky Flats permit also limits the ti=es or . l situations when discharges are allowed from Outfalls 001 and l' . 004-007. Outfall 001, for instance, may only discharge into l l 1 South Walnut Creek if weather conditions cause flows into Pond B-3 which (a) exceed its capacity and (b) cannot be h'andled by the plant's spray irrigation system. 9.14. Additionally, "[a]ny anticipated facility expan-siens, production increases, or process modifications which will result in new, different, or increased discharges of pollutants must be reported ... Permit No. CO-0001333, at

17. Failure to give such notice violates the permit.

9.15. One of the other conditions or requirements of Rocky Flats' NPDES permit is that the facility submit a Discharge Monitoring Report ("DMR") to EPA each month. A DMR is required to describe the amount and source of all discharges from the plant's permitted outfalls, as well as the concentrations of pollutants limited by the permit. 9.16. During the period from March 1987 through May 1988, DOE Area Manager Albert E. Whiteman reported several violations of Rocky Flats' NPDES permit. With the exception of the March 1987 violation, all of these Clean Water violations were reported in the plant's DMRs, as summarized below: Date of Violation LLmiterion Exceeded Location of Violation March 1987 unauthorized discharge Pond B-3 (which of process wastewater discharges to Walnut Creek)

l- . l l L . February 1988 30 day average'for Pond B-3 Biological Oxygen Demand (" BOD"), March 1988 30 day average for Pond B-3 _. BOD April 1988 1) 30 day average Pond B-3 BOD

2) fecal coliform May 1988 30 day average for Fond B-3 BOD 9.17. On or about November 11, 1988, as part of your affiant's and Special Agent Smith's investigation, remote water monitoring devices were installed on properties adja-cent te, but separate from Rocky Flats, to monitor the plant's discharges into Walnut and Woman Creeks.DJ 9.18. On November 15, 1988,. a discharge from Rocky Flats into Walnut Creek was monitored at Sample Station No.

2. Subsequent EPA ana?.ysis showed that the dischsrge contained the following pollutants: benzene ethanol; 4-(4-hydroxy-3-methoxyphenol)-2-butanone; 4-methoxy-benzyl

 <               alcohc3; 2-methoxy-4-(2-propenyl)-phenol; 2-methoxybenzoic acid; 6-ethenyltetrahydro-2,2,6-trimethyl-2H-pyran-3-OL; ,3,7-dimethyl-1, 6-octedjen-3-OL; benzoic acid; benzoic acetic acid; 3,4-dimethyl-2,5-furandione; 3-ethyl-4-met.yl-2,5-                                                                                                 .

f urandione; 5-ethyltetrahydro-alpha, alpha, 5-trimethyl- cis-2-furenmethanol; and 2,6-dimethoxy-1,4-benzoquinone. Rocky l Flats' NPDES permit does not allow these substances to be l Ul ,The monitor on Walnut Creek was located downstream from the i point where North and South Walnut Creeks join together. ) 1 i I

j a- . discharged from Rocky Flats, and their discharge, on November In addition, DOE and 15, 1988, violated the Clean Water Act. Rockwell failed to notify EPA of any process changes at Rocky Flats which would result in the discharge of new or di?ferent pollutants, such as the above-described chemicals, and such failure is a separate and additional violation. 9.19. On November 16, 1988, a second sample was taken Subsequent analysis from Walnut Creek at Sample Station 2. Rocky showed trace amounts of 1,3-dihydro-2H-indol-2-one. Flats

permit does not allow this substance to be discharged 33 from Rocky Flats, and its discharge also violated the CWA, U.S.C. S 1319(c)(1) and (2).

9.20. Based on an analysis by EPA Region B Toxicologist Dr. Suzanne M. Wuerthele dated January 3, 1989, the combina-l tion of chemicals identified in 11 9 18 and 9.19

strong y suggests that the contamination is medical waste originating One of the chemi-from a research laboratory or a pharmacy.-

                                                               *has been experimentally cals, 1,3-dihydro-2H-idol-2-one, i

tested concerning its ability to protect against radiat on-Two of the other detected compounds induced cellular damage. have been used experi=ent:lly in attempting to follow the migration of radioactive materials in groundwater." 9.21. On December 19, 1988, DOE submitted its DXR for While the report confirmed November 1988 to EPA and CDH. that Rocky Flats indeed discharged water into Walnut Creek on

November 15 and 16, 1988, consistent with the monitored discharges on such dates, Rocky Flats' DMR failed to report that these discharges contained the above pollutants. .The DMR also f ailed to report additional discharges into Walnut Creek and also into Woman Creek on November 25, 1988, even though your affiant observed such discharges. 9.22. As described in 1 7.20, serial surveillance was conducted over Rocky Flats on December 9, 10 and 15, 1988, by an FBI airplane equipped with infra-red photographic equip-ment. On each day, thernal activity was observed forming a path from Rocky Flats' sewage treatment plant (Buildings 998/995) to Woman Creek. EPA's Environmental Monitoring Systems Lab (1 7.21) has interpreted the observed thermal activity as liquid discharges from the sewage treatment plant into Woman Creek. 9.23. The observed route of the Decembere 9, 10 and 15 discharges is not a route permitted by Rocky Flats' NPDES permit, which does not allow direct discharges from the sewage plant to Woman Creek. Further, DOE and Rockwell have failed to disclose any of these discharges to EPA or the public. Each discharge is an apparent violation of 33 U.S.C. S 1319(c)(1) and (2), involving the negligent or knowing I discharge of pollutants in violation of a permit condition or l , limitAtien and may also involve the knowing and willful l I concealment of a material fact, in violation of 18 U.S.C. 5 L-__-_--_______- ._- _ _ _ _ _ _ - _

                                     .o                    ,

1001. 9.24. In February 1989, your affiant's investigation monitored another discharge from Rocky Flats into Walnut Creek, which DOE f ailed to report to EPA in its ' daily.- monitoring reports. 9.25. There is probable cause to believe that DOE t and/or Rockwell have made false statements to or concealed material' facts from the EPA concerning discharges from Rocky Flats to " navigable waters", in violation of 18 U.S.C. S / 1001, and has criminally violated the Clean Water Act, 33 U.S.C. SS 1311(a) and 1319(c), by negligently or knowingly discharging pollutants, into Walnut and Woman Creeks since at least 1987, without a permit or in violation of Rocky Flats' permit conditions. 9.26. There is also probable cause to believe that evidence of such crimes is located at Rocky Flats, in Buildings 998 and 995, and at or about North and South Walnue Creeks (including the A and B series ponds and related conveyances) and also at Woman Creek (including the C series

ponds and related conveyances), as well as. Buildings lil, 115, 122, 123, 706 and 776, and the Wind Systems Building, where relevant docu=ents are likely to be maintained.

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[

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10. GROUNDWATER VIOLATIONS Based.upon a review of' EPA and CDM records, other -

1 government documents, reports and studies, and materiais ( ( submitted by or obtained from DOE and/or Rockwell, as well as other sources of information stated herein, your affiant j states as follows:

10.1. Groundwater is an important natural resource. j i It provides drinking water to millions of homes in the United j { States and is the main source of water for agricultural purposes. Proper monitoring and safeguards concerning both hazardous and nonhazardous pollutants and wastes are neces-sary to protect groundwater from contamination. In August 1984, the EPA published a Groundwater Protection Strategy stating that potentially useful groundwater supplies should be protected so that contaminants in groundwater do not exceed natural background levels or drinking water standards. 10.2. Groundwater protection is an important aspect of . RCRA. Under RCRA, owners and operators of hazardous waste facilities are required to meet established limits for hazardous substances in groundwater and must have adequate monitoring systems to detect groundwater contaminants and their migration pattern. In general, concentrations of hazardous wastes or substances must not exceed background levels. If, at the time of applying for a RCRA permit, a facility's groundwater has been contaminated, the facility's

                                   - 101 -

    ..                                                                                                                                                                                                        I owner or operator must submit complete information concerning l

such contamination and establish a course of corrective

action.

                                                                                                            -       10.3    The hydrology at Rocky Flats is describe,d in i 9.1, which is also applicable here.

10.4. A number of solar evaporation ponds including Ponds 207A, 207B and 207C, have been constructed and used at Rocky Flats since the plant began operations in 1952, to 1988 Annual treat and dispose of various hazardous wastes. _ RCRA Groundwater Monitorina Report for Reculated Units at Rocky Flats Plant ("1988 Groundwater Monitorino Recort"), t 2. The ponds have leaked for many years and a groundwater. interceptor system was installed in the 1970s to collect contaminated groundwater. Id. Samples collected from this system as early as 1972 indicated to Rocky Flats' officials

                  -                                                                                           that the ponds were leaking.

10.5. The solar ponds and their leaka;a, discharge or since the ponds were, and have drainage are governed by RCRA, been used tn treat, store and/or dispose of various hazardous wastes, including ignitable, corrosive and reactive, hazardous vastes, EP toxic wastes (e.g., barium chloride) and spent cyanide solutions from electroplating operations. Id. 10.6. In 1981, approximately fifteen preexisting wells in the general vicinity of the solar evaporation ponds were l designated by DOE and/or Rockwell as RCRA groundwater

                                                                                                                                                         - 102 -

i

*l

{ 1 monitoring wells. The wells were monitored quarterly in 1982 I concerning drinking water standards, groundwater quality parameters and groundwater ' contamination indicators., The wells.were monitored semi-annually from September 1983'until late 1985. Trichlorethylene and chloroform -- which are l RCRA hazardous wastes and Safe Drinking Water Act contami-nants -- were found in Rocky Flats' groundwater in 1982, in connection with the solar ponds. 10.7. On November 13, 1981, Rockwell's Manager of Environmental Sciences at Rocky Flats, T. R. Crites, provided l a Groundwater Monitoring Program Plan to DOE',s E. W. Bean, at 1 the Rocky Flats Area Office. Mr. Crites' letter enclosing the groundwater plan stated that the plan is "for (DOE's) consideration to inform the EPA that the Rocky Flats Plant has a crocram that adecuately meets the conceptual intent of fthe RCRA groundwater regulations at 40 Crn 265.90]" concern-ing hazardous and toxic wastes. 10.8. On November 19, 1981, DOE Area Manager Don Ofte sent a letter to EPA Regional Administrator Steven J. Durham concerning Rocky Flats' groundwater monitoring. Mr. Ofte stated that the monitoring program was consiste,nt with EPA requirements" (emphasis added), and that it was Rockwell's responsibility to carry out the monitoring and submit

pertinent reports to DOE. Mr. Ofte stated that it was DOE's " position
that RCRA's application to Rocky Plats was 103 -

1

 .                                                                                                                                                                 J I

inconsistent with the AEA, but also indicated that ::ts 1 intends to provide an essentially equivalent propsm ... and. , l 1s submitting this rt. ort l

                                          . . . to demonstrate the artsmance:                                                                                     i
                                                                                                                                                                   )

and adequacy of the Rocky Flats groundwater monitccingi programs.- 10.9. By DOE Order No. 54 80.2 dated Decedta= 13,1M'2, DOE required that groundwater monitoring systems be. estah-lished at all DOE f acilities in accordance with 9.e 3 CTG regulations at 40 C.F.R. Part 264, Subpart F, arc Ps :. 265,. Subpart F. . 10.'10. In September 19 84, a report entitle:i; "SensadIc-active Groundwater Data Summary 1975-1983," prepce@. by N:.L. Hoffman at (or for) Rocky Flats, stated that marf cf Recky< Flats' groundwater wells were more than 10 years o211 v.d! ther

   -         it might be necessary to drill new wells followt".g "imgrevat' drilling practices and recent regulations." '(Dgitas$s added.)

10.11. In a memorandum titled the " History a'ad S3a:tute of RCRA Groundwater Monitoring Program" at Rockj; . Torts., prepared by Rockwell's T. C. Greengard and datet 5(mmdac T, 1984, Rockvell sur.=arized various groundwater st==2e:3 collected for RCRA purposes and noted that the .eJh wert-contaminated bv ealt poured into them in April, STE. ":2e me=orandum noted that a comprehensive review was =:dmey are

                                             - 104 -

R i

                                                                                                                               ,J that maior revisions-to the RCRA groundwater monitorine                                                                      J requirements were exeected."                                                                                      .
                                                                                                                     ~

1 10.12. In a memorandum entitled " RCRA Groundwater ~ j Monitoring Data" dated February 7, 1985, and-prepared by G. L. Plotter and T. C. Greengard, Rocky Flats' officials recoenized various deficiencies in'the groundwater monitorir.c

crocram at the plant and included well placement, well l construction, sampling methods and salt contamination as j items to be. examined in more detail by a consultant starting in, March 1985. The memorandum stated that the Rocky Flats' wells "fdid1 not in every case strictiv conform to current J construction standards and cuidelines as outlined in RCRA." (Emphasis udded. ) 10.13.. In a DOE document dated March 22, 1985 respond-

ing to a CDH questionnaire concerning RCRA groundwater moni-toring at Rocky Flats, DOE stated that (emphasis added): (t]he (groundwater) data collected to date hai limited validity. As detailed RCRA monitoring criteria became available, it became apparent that much of this criteria was not beine met by adactine existine Rocky Flats Plant wells, eculoment and crocedures that have been used for radiological monitorine. 10.14. A " preliminary screening" of Rocky Flats' driak-ing water, surface water and groundwater was conducted in March and April, 1985. Sampling and analyses showed the presenc'e of volatile organic compounds in the plant's ground-water, including 6,400 parts per billion of trichloroethyl-ene; 16,000 parts per billion of tetrachloroethylene; 1,300

                                    - 105 -

M j, - ,r. lp , . parts per billion of 1,1-trichloromethane and 4,800 parts per l billion of ,1,1,1-trichloromethane. CEARP at V-47. By com-L parison, regulations promulgated under the safe Drinking W'ater Act, 42 U.S.C. S 300f sui sec. , have set maximum con-taminant goals as follows: trichlorethylene (zero) and 1,1,1-trichloromethane (200 parts per billion). 10.15. On November 8, 1985, DOE submitted a Part B RCRA permit application to EPA, concerning Rocky Flats' status and operation'as a RCRA hazardous waste facility. Both DOE's Acting Area Manager, Albert E. Whiteman, and Rockwell's Vice President and General Manager, J. E. Dorr, certified "under penalty of law" that they had examined the application, that they were familiar with its information and that such infor-mation was "true, accurate and complete." Mr. Whiteman and Mr. Dorr certified that the solar ponds at Rocky Flats known as Ponds 207A, 207B and 207C were "in compliance with all applicable groundwater monitoring and financial requirements stated or referred to in (RCRA), as amended." The certifica-tions were footnoted as follows: "The present solar pond groundwater monitoring system meets the spirit of RCRA, i.e. detection of groundwater degradation. Although initially designed for radiological purposes, the groundwater moni-toring program was =odified in 1981 to be essentially eouivalent with the RCRA orocrem .... (Emphasis added.) In fact, the certifications were completely at odds with

                                              - 106 -

         .                                                                                            )

i

I information'known to Rocky Flats' officials. 10.16. 'In a-GAO' audit.of Rocky Flats dated November 5, 1985 - which was reported three days orier to Mr. Wbiteman's j i and Mr. Dorr's contrary certifications - GAO found that { 1 l " RCRA-quality wells have 'een proposed as part of future RCRA -{ compliance." (Emphasis added). j l 10.17. On November 21, 1985, CDH inspectors Greg Brand and Fred Dowsett went to Rocky Flats to conduct a prearranged (i.e., advance notice) inspection of the plant's groundwater i monitoring system. Groundwater wells could not be tested, j however, because, according to plant officials, the submer-sible pump froze on contact with the water. 10.18. On December 4, 1985 -- less than one month after Mr. Whiteman's and Mr. Dorr's certifications, CDH inspectors

Greg Brand and Fred Dowsett inspected the groundwater moni- ; toring system at Rocky Flats and found it "inadecuate." (Emphasis added). The inspectors sampled two wells near the solar evaporation ponds and the sump at the groundwater interception pump at North Walnut Creek. Rockwell's on-site representative, Tom Greengard, indicated that the regular

technician "was not at the facility" and that the replacement technician "was not trained in well sampling'and would probably be unable to assist to any great extent in sampling." The sampling took place only when'the CDH inspectors indicated that they were prepared to proceed on

                                                      - 107 -                                         l

their own. The wells had been " purged" the previous week (even though the pump was allegedly " frozen" during the . November 21 inspection, only two weeks earlier). The inspectors stated their findings as follows (emphasis added): L The vells which make up the RCRA monitorino system at the facility are inadecuate. There are few details available concerning the construction and geology of the wells. Many of the wells are een-structed of unacceptable materials (e.g. galvanized steel) and many show obvious signs of deteriora-tion. The locations of the wells may be adequate to provide some information on the contamination plume coming from the solar evaporation ponds but are not sufficient in number to adequately define the extent of the plume. The results of VOC analyses of the three samples indicate low levels of organic contamination in ground water near the solar ponds (9.2 (parts per billion) TCE at inter-ceptor sump, 27 ppb chloroform at well 2-60). 10.19. In a " Report on Hydrogeologic Characterization

      -        of the Rocky Flats Plant" dated December 9, 1985, Rockwell's own consultants noted that the principal monitoring wells near the solar ponds were built in 1960 and that there was no information available concerning the wells' construction.

The report concluded that, because of a lack of information concerning the wells' construction, Rocky Flats could not demonstrate comoliance with RCRA groundwater regulations found at 40 C.F.R. S 265.91(c). The report stated they a new monitorino system was reouired and recommended that existing wells be plugged.

                                                 - 108 -

                                                                                                                                                                                            .   ~

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             -10.20.                                                          On or about December 16, 1985, CDH issued a l

Public Notice of Intent to Deny a Permit, finding that Rocky Flats' Part B RCRA permit application was incomplete and failed to correct previous deficiencies. Concerning ground-water contamination at Rocky Flats, CDH stated (emphasis added):

1. [ Rocky Flats) has informed the (CDH) of the detection of the following hazardous waste in groundwater-at the site at levels as high as the following trichlcroethylene - 6,400 [ parts per billion) tetrachloroethylene - 16,000 ppb 1,1 dichloroethylene - 1,300 ppb

1,1,1 trichloromethane - 4,800 ppb.

           'The presence of additional hazardous wastes in groundwater is suspected from incomplete analyses made available to the Department.

The cresence of hazardous vaste in Groundwater constitutes discosal within the meaning of that term as defined at 6 CCR'1007-3, Section 260.10,and is subject to the permitting. requirements of the Colorado Hazardous Waste Regulations. The rPart 31 aooliention does not include any information on the groundwater at the site. There-fore, no determination can be made of the source, rate, or extent of migration of hazardous wastes, as required by 6 CCR 1007-3, Section 100.41(c). From the above information and lack of information, the (Colorado) Department (of Health] concludes that groundwater contamination is occurrina as a result of leakace of hazardous waste from existine surface impoundments and that diseosal of. hazardous weste is occurrine (264.90). i

3. Surface i=poundments at the site are receiving groundwater suspected to be contaminated with listed hazardous wastes.

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Groundwater ~which is contaminated with listed hazardous wastes is itself a listed hazardous. waste. Therefore, the surface impoundments that receive the cont &minated groundwater _are; regulated units. The (Part B) application does not include informa- i tion on.these surface impoundments, as required by- l 6 CCR 1007-3, Section 100.41(b)(3).

4. The f acility does not have a oroundwaggr - !

monitorino system which meets the requirements The applicant is of 6

                                                                                                                                       /
                          .CCR 1008-3 Part 264 and Part 265.

required to submit a groundwater monitoring program which meets the requirements of 6 CCR 1007-3, Part 264. The application does not include this essential

                     -    . groundwater information as required by 6 CCR-1007-3, Section 100.41(c).

10.21. In April 1986, DOE stated that Rocky Flats' past and present use of various volatile organic compounds CEARP at V-47. DOE . (generally solvents) was well known." i further stated (id.): Trichlorethylene and 1,1,1-trichloromethane are the l past and present general solvents,.respectively, i used.at the plant. Use of trichlorethylene was discontinued in 1975, and use ofwas tetrachloro- discontinued in l ethylene, a degreasing solvent, ) 1976. 1,1-dichloroethylene is a degradation

i. product of 1,1,1-trichloromethane, the general sol-vent currently used at the plant.

1 10.22. As of April 1986, only 15 groundwater monitori wells had been built at Rocky Flats since 1974 -- nine in 1981 and six in 1982. Fifteen of the remaining 28 wells we J built prior to 1972. CEARP at III-21. No wells were added

                                                                  -             110 -

6 ________-_______m_ _ _ _ _ _ _ _ - _ _ _ _ _ _

v , I between 1982 and 1986, even though groundwater contamination 1 was well-known.to Rocky Flats' officials.Ul l 10.23. In April 1986, DOE gave groundwater contamina-tionatRockyFlatsaHazardRankingSystemscoreof45, concerning volatile organic compounds found in such water. ) CEARP at Ex-14. The threshold score for placing a waste site on EPA's National Priorities List - that is, , sites needino criority attention - is only 28.5. 10.24. On or about April 16, 1986, CDH official Fred Dowsett was at Rocky Flats to inspect and observe environ-mental sampling.in an area known as the West Spray Field, where the plant disposed of process waste water by spriying it on the ground. During afforts to sample groundwater monitoring well No. 9-81, air monitoring analysis over the well's opening showed the presence of volatile organic vapors exceeding background levels, which required that the sample team wear Level C protective clothing, consisting of protec-tive suits and respirators. 10.25. The July 1986 DOE Memorandum (1 2.1) confirms that a groundwater monitoring system at Rocky Flats yjut essentially nonexistent. The memorandum, written eight months after DOE's and Rockwell's contrary certifications - states that Rocky Flats was (e=phasis added): 1U By contrast, 136 wells were built at Rocky Flats in 1986 and 1987, after DOE's and Rockwell's certifications that Rocky Flats' existing monitoring system already complied with RCRA's requirements. 1988 Groundwater Monitoring Report, at 1-2.

                                                               - 111 -

            .   . c 0

not comply with 40 C.F.R. 5 265.93; (d) Rocky Flats' number of interim status wells was inadequate and did not meet RCRA requirements; and (e) none of the wells were installed at proper compliance points. _ 10.28. According to the Groundwater Task Force, the monitoring system at Rocky Flats in 1985 was, at best, a detection monitoring system, when what was required, given Rocky Fl$ts' known groundwater contamination, was a more extensive essessment monitoring system. 40 C.F.R. 5 265.93(d). The Task Force specifically concluded that the groundwater monitoring system at Rocky Flats "was not in como11ance with the RCRA groundwater monitorina requirements when fDOE's and Rockwell's certifications werel made fin (Emphasis added). The Task Force report November 19851." states: "Both the monitoring program and the wells composing

the monitoring network were crossiv deficient. The deficiencies were noted, in writing, by DOE, Rockwell and subcontractor personnel both before and after the [ November - 8, 1985) certification was made." (Emphasis added. )U/ " 10.30. As part of CDH's September 28, 1987 Notice of . Deficiency concerning Rocky Plats' November 28, 1986 Part B 4 application (1 5.42), CDM (and EPA) found once again that the Ul According to Rocky Flats

1988 Groundwater Monitorino Report, a " Draft Work Plan concerning assessment conitoring at the 207 j

Ponds was not submitted until 1986, after the Novamber 1985 , certification, and the assess =ent program is still being implemented. 1998 Groundwater Monitorino Report, at 2-3. l

                                                                                                      - 113 -

l l l

facility's groundwater monitoring program and information were inadequate. Hydrologic information was faulty or incomplete; points of compliance were inadequate "to prevent , extensive contamination of the groundwater; there were no proposed groundwater protection standards, at least as to some units or areas; background l'evels of various substances or other items were not adequately analyzed; information concerning a number of wells was missing, and information on other wells indicated that " construction procedures were not strictly followed " 10.31. On October 14, 1987, CDH official Patricia Corbetta inspected Rocky Flats concerning groundwater moni-toring in the hillside area south of Building 881. , The inspection included both a document review and sampling, which indicated the presence of carbon tetrachloride, tetra-chloroethylene and trichlorethylene. Ms. Corbetta con-cluded in a memorandum she drafted: The present groundwater monitoring system does not adequately characterize the nature and extent of contamination. Conclusions regarding contamina-tion of groundwater and surface water were based on incomplete analytical data and generalized geologic and hydrologic analyses. Laboratory (Quality Assurance / Quality Control] problams are apparent in that several blanks chow contamination and radio-chemistry data are conflicting. Additi.onal ground-water conitoring wells are required to determine plume configurations and migration path. Seasonal effects on groundwater flow and contaminant migra-tion rate need to be addressed.

                                                                                                                                        - 114 -

10.32. In a memorandum entitled " Review of Rocky Flats Groundwater Monitoring Progr,m, a Section E of the Part B . Permit Application

dated December 30, 1987, CDH official Patricia Corbetta reported that the groundwater monitori: 7 program at Rocky Flats was still deficient in numerous respects. Ms. Corbetta's memorandum states in part:

Groundwater information of (Rocky Flats' November 26, 1986) Part B permit application was reviewed by CDH to determine the adequacy of the groundwater menitoring program at the Rocky Flats Plant. The facility has based a groundwater monitor-ing program on point of compliance wells located along the eastern boundary of the f acility. Only four background well pairs are designated.... [T]he detail necessary to fully evaluate the present and future groundwater quality of the site is not available. In several cases, data are inconsis-tently presented throughout the section. Sample

analysis is incomplete. ... An inspection and maintenance plan of ground-water monitoring wells needs to be submitted. The contamination around the present landfill and west sprey field could not be detennined from review of Section E due to incomplete analytical data and lack of adequate monitoring welle. ... Initial sampling of groundwater from wells downgredient of the solar evaporation ponds has shown that contamination has migrated through theRocky Plats Alluvium and into the Arapahoe Formation. ...

                        -  10.33.       By letter dated July 19, 1988, CDM infor=ed DOE and Rockwell that Rocky Plats' groundwater monitoring system
                                                           - 115 -
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         .                                                                                       1
  'q-3 Comittee to Bridge the Gap 307 Massachusetts Ave, NE

l. Washington, D.C. 20002 l (202)S46-3300 1 Los Angeles Physicians for Social Responsibility !

1431 Ocean Ave, Suite B j Santa Monica, CA 90401 (213)458-2694 August 10, 1989 Mr. James M. Taylor Acting Executive Director for Operations U.S. Nuclear Regulatory Cbmmission Washington; D.C. '20555 RE: Docket No. 70-25 License No. SNM-21 10 C.F.R. 52.206 Petition for Suspension of License

Dear Mr. Taylor:

Enclosed please find a Petition for Suspension of N.R.C. License GNM-21 held by Rockwell International Corporation, filed pursuant to Title 10 Cbde of Federal Regulations 52.206. We believe that findings by Federal law enforcement officials of criminal activity by the Licensee warrant an immediate suspension of the Licensee's authority to possess nuclear materials, as discussed within. Please notify us if you require additional inf,ormation. Yours sincerely, 5"' '~- ' f O MW Steven Aftergood pg Richard Saxon Executive Director President Committee to Bridge the Gap Los Angeles Physicians for Social Responsibility

                                                          ~"
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l' . I 1 Committee to Bridge th. Gap August 10, 1989 1 307 Massachusetts Avenue, N.E. 1 Washington, D.C. 20002 (202)S46-3300 .f i (213)478-0829- [. Ios Angeles Physicians for Social Responsibility 1431 Ocean Avenue, Suite B - Santa Monica, CA 90401 (213)458-2694 BEFORE THE NUCLEAR REGULATORY CDefiISSION UNITED STATES OF AMERICA k In the Matter of )

Rockwell International Corporation )

                                                 )       Docket Number 70-25 Santa Susana Field Laboratory          )
   !                                             )

Materials License SNM-21 )

PETITION FOR SUSPENSION OF LICDJSE Pursuant to 10 C.F.R. $2.206, Petitioners hereby request suspension of Materials License SNM-21, held by Rockwell International Corporation (Licensee), authorizing possession of nuclear materials at the Santa Susana Field Laboratory in Santa Susana, California. FBI findings of extensive criminal violations by Rockwell, as well as the record of environmental neglect at Santa Susana, call into serious question the Licensee's fitness to handle nuclear materials. [ -_ - - _ - - - - - - - - - - - - _ - - - - -

'u:    ,

Statement g Interest The Petitioners represent the safety and security concerns of their respective memberships.-

                  'Ihe Committee to Bridge the Gap is a Los Angeles-based public interest research organization concerned with nuclear safety.                                                                   CBG successfully intervened to oppose relicensing of the UCLA research reactor, which was permanently shut down in 1984.

Ics Angeles Physicians for Social Responsibility is an organization of

           . physicians and others concerned with nuclear policy and related issues.

The memberships of both Petitioners'- organizations include individuals residing in the vicinity of the Santa Susana Field Laboratory where the licensed 1 operations in question are performed. The health and safety of these individuals, among others, could be directly affected by the type of illegal activities of which the Licensee is suspected. Specification g Basis for Petition Petitioners are requesting that the Licensee's authority to possess

          . nuclear materials at the Santa Susana Field Laboratory, granted in Materials

), License SNM-21, be immediately suspended. The primary bases for this request are the allegations of criminal behavior made against the Licensee by the Federal Bureau of Investigation (FBI) concerning its operations at the Rocky Flats Plant, located outside of Denver, Colorado. Rocky Flats, which is owned by the United States Government, is operated by the Southern California-based Rockwell International Corp., the Licensee. Additionally, Rockwell has an exceptionally poor environmental record at its Santa Susana site.

1. License SNM-21 expired on June 30, 1989, but nevertheless remains in effect while the Licensee's application for renewal is processed by the NRC.

2

x ,. w . ^- ne allegations made by i.he FBI are sufficiently serious to call into question Rockwell's ability to safely handle nuclear materials and the

                                     . ability of; the Nuclear Regulatory Commission to effectively. regulate Rockwell's activities, as. discussed below.

Se FBI's finding of " probable cause" that Rockwell committed criminal ( violations is contained in an " Application ~and Affidavit for Search Warrant" hN submitted to the United States District Court 'in colorado and unsealed June 9, 1989. (The " Application ~and Affidavit

is appended to this Petition.)

The Application for a Search Warrant was granted by the Court and some 70 FBI agents subsequently descended on Rocky. Flats to seize Rockwell and' Department of Energy records. The investigation of the allegations is still

                                    ~ underway.

The FBI asserts generally that Rockwell concealed contamination, discharged pollutants without a permit, and illegally treated, stored, and - disposed of hazardous and radioactive waste. Hus:

     '                      ~
                                         --The FBI cites an internal DOE memorandum from July 1986 that states that some of the waste facilities at Rocky Flats were
                                           " patently illegal." (FBI' Affidavit, page 11).
                                        --The FBI finds that "there is probable cause to believe that Rockwell and DOE officials have knowingly and falsely stated Rocky Flats' compliance with environmental laws and regulations, and concealed Rocky Flats' ' serious contamination'." (FBI Affidavit, page 14, emphasis added).
                                        -The FBI cites DOE findings 'that Rockwell had significant problems in controlling radioactive contamination at the plant and that Rockwell provided DOE with erroneous and incomplete reports on environmental, health and safety matters." (FBI Affidavit, page 3

c

     -a F'

e 15, emphasis added).

              -The FBI finds that "there is probable cause to believe that environmental and other crimes have been committed at Rocky Flats" (FBI Affidavit, page 16).                                                                           ,
              -The FBI indicates that several violations by Rockwell and the DOE of the Colorado Hazardous Waste Act are also ' apparent criminal violations" of federal statutes (FBI Affidavit, pp. 57-62).
              --The FBI finds that "There is probable cause to believe that -

hazardous and mixed wastes have been 131egally treated, stored and disposed of at Rocky Flats" (FBI Affidavit, page 65).

             --The FBI finds that " false statements and concealment of material facts have occurred, in violation of" federal statutes (FBI Affidavit, page 65).
             --After conducting airplane overflights with infrared and photographic surveillance equipment, the FBI found that contrary

_ to public statements by responsible Rockwell officials, an incinerator was being operated, "and that material false statements were therefore made, o_r,r material facts concealed" in violation of federal statutes. (FBI Affidavit, pp. 82-84, emphasis added).

             ~-The FBI indicates that contrary to public statements, groundwater monitoring and protection was inadequate and in violation of                                            -

federal statutes. (FBI Affidavit, pp. 101-116). While the extraordinary findings of this criminal investigation are by themselves sufficient cause to immediately suspend Rockwell's authority to possess nuclear materials, it may be noted that a similar pattern of environmental neglect and public deception is also evident at the Santa 4

 ;e Susana site. 7b cite just a few examples:2
                                  --A      Department of Energy (DOE) survey found that 'There are approximately 10 areas [at the Santa Susana lab] where hazardous and/or radioactive substances... have or may have been disposed of, spilled or released. These constitute actual and potential sources of soil and/or ground water contamination.      The full nature and extent of contamination is not known. 3
                                  --DOE indicated that during the 1960s and 1970s, ' Unauthorized radioactively contaminated equipment was buried in trenches and scattered on the surface [of Rockwell's ' sodium burn pit *]....

Soils within the burn pit area of the facility are contaminated with chlorinated organics, heavy metals and low levels of

       '~-
                                   ' radioactivity, principally cesium-137.'4
                                 --Tests for radioactive contamination conducted by Rockwell officials were criticized by DOE for being ' biased g avoid

_ sampling contaminated areas, a method which thereby systematically underestimated contamination at the burn pit. 5

                                -According to DOE, Rockwell workers occasionally used firearms to

2. For information on pre-1980 incidents at Santa Susana, see "Past Accidents and Areas of Possible Present Concern Regarding Atomics International," Ccamittee to Bridge the Gap, January 18, 1980.

On more recent revelations, see Mark Barnhill, Tony Knight and Beth Barrett, 'Rockwell Site Contaminated: Radiation Taints Santa Susana Lab's Soil, Water,' Los Angeles Daily News, May 14,1989, p.1 and subsequent articles in that newspaper by the same reporters. l 3. Mark Barnhill, " Report Criticizes Rockwell: Survey Finds More Than 12 I Contaminated Sites at Nuclear Facility,' Los Angeles Daily News, May 17, 1 1989, page 1.

4. Tony Knight, " Agencies Unaware of Toxic Pit," Los Angeles Daily News, May 28,1989, pp.1,18.

5. Mark Barnhill, ' Report Criticizes Rockwell,' E uit., emphasis added.

l _ .__-_-_________-_-__A

7 open containers of volatile chemicals for disposal.6

                   --Federal and state agencies responsible for toxic waste cleanup                                        i 1

were not told of a hazardous waste dump (the sodium burn pit) at the Santa Susana Field Laboratory. Cbmpany records indicate that radioactive, toxic solven; and toxic metal contamination were l found in the soil, chemical ccmtamination was found in the ground 1 water, and potential radioactive contamination of the ground water j was identified.7 Discussion Rockwell claims 8 that It is the policy of the [Rockwell International] corporation to comply with all the requirements of law, to operate the facilities in a safe and efficient manner and within the requirements of all license conditions under which the activities are authorized. Yet in a sworn affidavit, the Federal Bureau of Investigation indicates

       ,,      that the opposite is closer to the truth.

Rockwell, the FBI asserts, has committed numerous and repeated violations of federal statutes. Overall, the Licensee has demonstrated a pattern of reckless disregard for environmental protection at both its Rocky Flats and its Santa Susana facilities. 1 What is perhaps most disturbing is the concealment of evidence, the misleading of the public and of the responsible regulatory agencies, and the commission of material false statements.

6. ibid.

7. Tony Knight, " Agencies Unaware of Toxic Pit," op. cit.

8. ESG-82-33, Health and Safety Sections for Renewal Application of the Special Nuclear Materials License SNM-21, Docket 70-25, Issued to Rocketdyne Division of Rockwell International, rev. May 19,1989, page I.2-1.

l 6 o _ . _ - - _ - _ - _ _ . - _ _ ___--___ _ ---_ _ -- _

 .o    .

I When the Nuclear Regulatory Commission awards a license to handle nuclear materials, it necessarily presumes that the licensee will operate in l good faith, that it will reliably and honestly monitor its own environmental practices, that it will record its emission and c'isposal practices accurately, and that it will not deliberately alter or conceal its records. 2hese minimal standards are the foundation of the regulatory process, which cannot proceed if they are violated. Yet according to Federal law enforcement officials, the Licensee has violated them and produced significant damage to the environment. Consequently, its authority to possess nuclear materials should be immediately suspended. L . t Conclusion The FBI has assembled abundant evidence calling into question the integrity of the Licensee and has specifically alleged that Rockwell International Corporation committed criminal violations in its handling of nuclear and toxic materials. Given these extraordinary findings, we believe that the NRC must act immediately to protect the public health and safety and must suspend Rockwell International Corporation License SNM-21 until i such time as the Licensee is cleared of all allegations of criminal ' behavior. Respectfully submitted, to / ly m !.

                                                  /           </                          u Steven Aftergood                            Richard Saxon Executive Director                          President Committee to Bridge the Gap                 Los Angeles Physicians for social Responsibility 7
                                                                                - _ - _ _ _--_-_-_w}}

ML20247M495: Difference between revisions

Latest revision as of 13:52, 16 March 2021

Text

Dear Messrs. Aftergood and Saxon:

Dear Mr. Taylor:

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