Petition for Writ of Certiorari — Rockefeller v. New Mexico

Semre se Comet UWS.

f ») “seo

00178 0 MA 21 2001

No. 01- OFFICE OF THE CLERK

In The

Supreme Court of the United States

Tod N. Rockefeller

Petitioner,

Vv.

State of New Mexico (NM), New

Mexico Environment Department (NMED),

and Peter Maggiore in his official

capacity as Secretary of the NMED,

Respondents.

On Petition for Writ of Certiorari

to the Supreme Court of the

State of New Mexico

PETITION FOR WRIT OF CERTIORARI

APPENDIX - VOLUME

No. 6 & 7

Tod N. Rockefeller, pro se

319 Sunnyview St.

Carlsbad, NM 88220

(SO5) 628 - 3541

APPENDIX - 6

Pages 1 thru 18

IN THE COURT OF APPEALS

OF THE STATE OF NEW MEXICO

TOD N. ROCKEFELLER,

Appellant;

vs.

STATE OF NM, NMED, and

PETER MAGGIORE in his official

capacity as Secretary of the NMED

Appellees.

No. 20,980; HRM 98-04 (P) ; Served - 2/7/01

MOTION FOR REHEARING AND ORAL

ARGUMENT

An Order and Notice of Proposed Summary

Disposition (hereafter “Proposed Dismissal”) was

filed by the Court on 9/6/00 for the case captioned

above. Appellant responded with a Memorandum

in Opposition to Proposed Summary Disposition

(hereafter “Memo”) served on 10/25/00. The Court

issued its judgement upon the Proposed Dismissal

within a Memorandum Opinion (hereafter

“Dismissal”) filed on 1/30/01.

Upon review of the content of the Proposed

Dismissal, Appellant found it disturbing and biased

against him with several misstatements. The

Proposed Dismissal, however, paled in comparison

to the Dismissal’s false statements and clearly

demonstrated bias against Appellant as will be

detailed below. Appellant is now shocked by this

Court’s unbridled unfairness towards him. Within

Appellant’s Memo, only one of several

ee

misstatements were addressed within the Proposed

Dismissal. This was concerning “violation 11" of an

alleged false statement and representation having

been made by the United States Department of

Energy (“DOE”) on 2/26/99 (Memo at 12, 13).

Specific clear and convincing documented

evidence was included with this allegation (DOE

Surveillance Report S-97-23 and much more

totaling 21 pages) to substantiate Appellant’s

“testimony” [R.P. 2058-70, 2074-79]. Appellant’s

cross-examination excerpt cited was only two

questions, and the balance of his “testimony” only

explained the relevance of the 21 pages of

documented evidence included. The facts within the

DOE’s own surveillance report itself established that

the bogus “severe safety deficiency”, which

supposedly could have resulted in “FATALITY”, was

only a “tripping hazard” at worst (Emphasis added).

The contractor laboratory employee’s (Dr. Chen’s)

reported testimony to Appellant even established the

alleged “tripping hazard” as bogus. Besides being

an alleged false statement made under oath by the

DOE and violation of NMSA 30-25-1, it is also hard

evidence supporting the alleged DOE reprisals

against Appellant for whistleblowing which violates

the Employee Protection Provisions of the Solid

Waste Disposal Act (“SWDA”). See 42 U.S.C. § 6971.

Federal Statutes

are Applicable to WIPP State Permitting

There was a question also concerning this

Court’s alleged limited jurisdiction concerning

federal law applicable to the DOE’s Waste Isolation

Pilot Plant (“WIPP”) Project. The question to ask is,

does this Court have jurisdiction over the New

Mexico state hazardous waste permitting

proceedings of this case ? Obviously yes.

a.

New Mexico (“NM”) was granted an “authorized state

hazardous waste program” by the Environmental

Protection Agency (“EPA”) under the authority and

control of the SWDA. The “state program” must be

“equivalent to the federal program”. See 42 U.S.C. §

6926 and Exhibit CR-1. What this means is that

wherever federal requirements are not outlined

within NM law, the requirement refers back to the

federal statutes for hazardous waste management.

This is a very simple, basic, and common principle

of any kind of federally approved state program.

Appellant is almost shocked that this Court claims

not to be aware of these basics.

This Court had attempted to dismiss

Appellant’s cross-examination, described above, as

being dispelled by the Hearing Officer as “improper

cross-examination” (Proposed Dismissal at 6). Next,

this Court also claimed that such “scientific or

technical” testimony could be disregarded by a fact

finder (Proposed Dismissal at 5). Appellant dispelled

both of these claims of the court concerning his

cross-examination excerpt described above (Memo at

12, 13). The alleged DOE false statement along with

Appellant’s two cross-examination questions are

NOT “scientific or technical” in nature, and were

NOT ruled as “improper cross-examination” by the

Hearing Officer.

This Court’s Dismissal continues to claim that

the DOE’s apparent false statements while under

oath in this instance are still alleged to be in

question. It is noted that: “A fact finder can always

evaluate the credibility of witnesses and determine

where the truth lies.” There is NO credibility

factor of witnesses within the 21 pages of

evidence supporting Appellant’s allegation of DOE

false statements while under oath. E.g. DOE’s own

letters and report, former Energy Secretary

ware

O'Leary’s 5/14/98 Declaration excerpt, and

Government Accountability Project’s (GAP’s) web

page. This web page of GAP concerns the DOE’s

horrible treatment and reprisals towards Nuclear

Waste Courier, James Bailey, resulting in the

painful death of his late infant baby daughter Kelly

and his own “chromosonal damage consistent

with radiation exposure.” DOE has a long

established history of reprisals.

In addition to all of the demonstrated non-

impartial treatment of Appellant above, there

are serious misstatements within the Dismissal

such as: “Appellant continues to make conclusory

allegations” and “Appellant ... presented mere

conflicting testimony .. .”. All that the Dismissal

discusses of Appellant’s 15 “violations” outlined are

three areas of alleged false statements (Dismissal at

3, 4). Appellant’s “violations” 3, 5, & 6 involve a

specific Imminent Hazard of the WIPP RH-72B

nuclear waste shipping cask’s design failure

concerning a faulty (Clean Air Act (“CAA”) violation)

Radioactive Containment Seal, another specific

alleged CAA violation of faulty air monitoring of

radionuclide aerosols about the WIPP Site, and

possible DEATH of workers within the WIPP

repository arising from specific alleged

Inadequate Fire Protection respectively (Memo at

2, 3, 6, 8, & 9).

Appellees Exclude Evidence

Specific clear and convincing documented

objective evidence supporting these allegations

above is within the five attachments (not exhibits)

listed on R.P. 2030 (Index of Attachments to

Appellant’s 9/1/98 sworn WIPP Declaration). See

Exhibit CR-2. Appellant filed , on 10/5/00, a

Motion to Include Evidence into the Record Proper.

-4-

which was Inexplicably Excluded (hereafter

“Excluded Evidence Motion”). Appellant’s Excluded

Evidence Motion describes the evidence in question

very specifically with reference to R.P. 2030 as the

Index of Attachments (on R.P. 2030, the attachments

are listed by title and numbered as A-1, A-2, B, C, &

D). Appellant also noted that: “1) After R.P. 2030:

Five exhibits” (should be attachments) “which were

part of Appellant’s written 1/14/99 Technical

Testimony (which were within “Exhibit CH-4C”).”

See Excluded Evidence Motion at 1 and Exhibit CR-

2 to this motion. Appellees responded to the

Excluded Evidence Motion by stating that: “Appellees

believe the documents are part of the record proper

and do not object to the inclusion of these

documents in the event these documents were

inadvertently not placed in the record proper. For

the convenience of the Court, the documents are

attached.” See Appellees’ Response to Motion to

Include Evidence into the Record Proper at 2

(hereafter “Appellees’ Response”).

The Appellees’ Response had Appellant’s

Exhibits CH-1 thru CH-5 from his 1/14/99

Technical Testimony included, which were NOT the

five items "(which were within “Exhibit CH-4C”)” ,

obviously. While there was an error with the use of

the word “exhibit” rather than “attachment” ; “within

“Exhibit CH-4C™ could not possibly mean Exhibits

CH-1 thru CH-5 as Appellees had reflected and have

attempted to claim that they interpreted from

Appellant’s Excluded Evidence Motion. Within

Exhibit CH-4C is the Index of Attachments which

lists the five items in question. If the Appellees had

doubts about what documents were referred to by

Appellant, why did they not telephone to insure that

they knew accurately what documentation was in

question ? No contact was made by Appellee. This

fact is indicative of motive.

ee

Possible T tog with Evid

Appellant obtained evidence to provide to this Court

from all three New Mexico Public Interest

organizations, that were parties to the WIPP state

hazardous waste permitting proceedings. All of

these organizations had no trouble locating the

evidence in question above that they were served

with on only one occasion. See Exhibit CR-3.

Appellees were served with this 9/1/98 sworn

Declaration, with all five attachments, on two

occasions by Appellant (during 9/98 and 1/99).

It is certainly quite possible that Appellees

engaged in criminal tampering with evidence. The

five attachments in question were, without any

doubt, specifically part of the permitting proceedings

for the WIPP state hazardous waste permit. A

motion to include this evidence should not be

necessary because they were already stipulated by

both parties to be part of the record proper. See

Appellant’s Praecipe of Calling for Less Than The

Entire Record served on 3/21/00. For this Court to

exclude this evidence under these circumstances

would be contrary with Due Process of law required

by both the New Mexico and U.S. Constitutions.

This Court granted Oral Argument for the

DOE and Appellees concerning the identical NM

state permitting proceedings for the WIPP Project

(Case No. 99-20877). For this instant appeal (99-

20980), there are very serious unanswered

questions described above relating to public safety

and environmental integrity. There are not many

cases within this Court that involve such serious

matters that are so widespread in possible effect.

ate

E.g.: the WIPP Projectmanages the National

Transuranic Waste Program involving 23 other sites

spread over 14 states.

So, this appeal not only potentially affects

thousands of New Mexicans, but literally many

thousands of other American citizens and workers.

This Court, under these circumstances, is obligated

to do its very utmost to insure that the public’s

safety is not overlooked. Henceforth, an Oral

Argument is being requested by Appellant to

responsibly discuss and hopefully develop a solution

to the safety issues within this appeal.

Prayer for Relief

For the reasons outlined above, Appellant

prays that this Court place a stay on its Dismissal of

this instant appeal, restore the excluded / omitted

evidence that already was stipulated to be part of the

Record Proper, and grant the Motion for Rehearing

and Oral Argument. The Constitution of the State of

New Mexico notes:

“the courts must not only be

impartial, unbiased and fair, but,

in addition, no suspicions to the

contrary may be permitted to

P.2d 732 (1966}.” See NMSA 1978

Constitution of the State of NN

Appellees were contacted and oppose this

motion.

a

In accordance with 28 U.S.C. § 1746 and

18 U.S.C. § 1001, I declare under penalties of

perjury that the above statements are true and

correct to the best of my knowledge, information

and belief.

Dated: February 7", 2001

Respectfully submitted,

s/Tod N. Rockefeller, pro se

319 Sunnyview Street

Carlsbad, NM 88220

: (505) 628 - 3541

(Unlisted # due to Harassment Calls)

AFFIDAVIT OF SERVICE

Tod N. Rockefeller, being duly sworn, states that he

mailed this true and correct copy of the

foregoing Motion for Rehearing to:

Deputy Secretary Paul R. Ritzma

New Mexico Environment Department

1190 St. Francis Drive

Santa Fe, NM 87502

New Mexico Environment Department

Susan McMichael, Richard Mertz

P.O. Box 26110

Santa Fe, NM 87502

New Mexico Court of Appeals

Patricia C. Rivera Wallace, Clerk

Case No: 99-20980

237 Don Gaspar Ave., Rm. 116

Santa Fe,NM 87501

with sufficient first class postage attached thereto on

this 7" day of February, 2001.

s/Tod N. Rockefeller

Subscribed and sworn to before me this 7" day of

February, 2001

My commission expires: February 16, 2002

s/Brenda A. Johnson

Notary Public

Seal: Brenda A. Johnson, Notary Public,

State of New Mexico

ais

Exhibit CR-1

of Appendix - 6

The relevant portions of this exhibit contain

the following:

From the U.S. Code Online via GPO access [Laws in

effect as of Jan.6, 1999]

Title 42 - The Public Health and Welfare

Chapter 82 - Solid Waste Disposal

Subchapter III - Hazardous Waste

Management

Sec. 6926. Authorized State hazardous

waste programs

(b) Authorization of State program

Such State is authorized to carry out such

program in lieu of the Federal program under this

subchapter in such State and to issue and enforce

permits for the . . . disposal of hazardous waste

. . . equivalent to the Federal program under this

subchapter ....

NEW MEXICO STATUTES

1978 ANNOTATED

Chapter 74

Environmental Improvement

Pamphlet 120

Seal: Great Seal of the State of

New Mexico * 1912 *

2000 REPLACEMENT PAMPHLET

74-4-4. Duties and Powers of the board.

ce

A. The board shall adopt regulations for the

management of hazardous waste ..

that are equivalent to and no more stringent than

federal regulations adopted by the federal

environmental protection agency .. ..

NM ADMINISTRATIVE CODE (NMAC)

TRANSMITTAL FORM

File Stamp: Filed With State Records

Center 2000 May 15 PM 2:42

NMAC Title No.20: Environmental

Protection

NMAC Chapter No.4: Hazardous Waste

NMAC Part No.1: Hazardous Waste

Management

Effective Date of Rule: 6/14/2000

s/Jimi S. Gadzia

Chief, Environmental Improvement Board

Date Signed: 5/12/00

NMAC 20.4.1.1100 COMPLIANCE WITH OTHER

REGULATIONS. Compliance with this part does not

relieve a person of the obligation to comply with all

other applicable state and federal regulations.

File Stamp: Filed With State Records Center

2000 May 15 PM 2:43.

ee

Exhibit CR-2

of Appendix - 6

_ The relevant portions of this exhibit contain

the following:

Violations of Environmental, Health and Safety Laws

and Standards By Dept. of Energy’s Waste Isolation

Pilot Plant (WIPP) Project Declaration of Tod

Rockefeller former Environmental Scientist

Department of Energy, Carlsbad Area Office (CAO)

September 1, 1998

I make this declaration to notify the State of

New Mexico of the following safety risks/violations,

environmental law violations, and violations of the

New Mexico Hazardous Waste Act (NMHWA)

concerning the DOE’s WIPP Project in Carlsbad, New

Mexico. These allegations that I make need to be

reviewed and investigated for validation. I can

provide assistance and testimony to accomplish

this.

A. WIPP RH-72B Shipping Cask Potential

Clean Air Act (CAA) Violation and Potential

Imminent Danger (Potential Compromise of

Containment Seal).

B. DOE Cover-up of Environmental

Monitoring Errors from the EPA.

C. WIPP RCRA Part B Permit Application /

Clean Air Act Violations.

D. Westinghouse, Waste Isolation Division’s

(WID) Violation of a Mine Safety and Health

Administration (MSHA) Safety Regulation.

E. DOE/WID Violation of a DOE Safety

Incident Reporting Regulation (DOE Order 5000.3B).

|

Fe tae india PL

A. RH-72B Shipping Cask

Attachment A-1 is the first of five attachments

which each support what | state within this

declaration and clearly demonstrate my honest

concern for safety. This review of mine was of WID’s

draft Comment Resolutions for the Safety Analysis

Report for Packaging (SARP) of the proposed shipping

cask for transporting high level radioactive waste to

the WIPP Site over our nation’s highways. This

cask has serious implications for Clean Air Act

compliance and trucking safety. I was temporarily

assigned to work on the approval of this SARP by

from 6/95 to 11/95. In 4/96 I was assigned to the

CAO’s Assurance Team (QA), but still received a copy

of the WIPP contractor’s draft Comment Resolutions

to the SARP. As soon as I looked at these draft

Comment Resolutions major problems immediately

became apparent to me. Because of this I began my

review, even though it was an area that I was no

longer assigned to. Soon after I called the WIPP

contractor to obtain Nuclear Regulatory Commission

(NRC) Regulatory Guides, necessary for my review, I

received four new atypical work assignments from

my Team Leader. Along with the new work

assignments came the comment that I would have to

“put the SARP review on hold.” Besides my difficulty

in obtaining the necessary NRC Regulatory Guides

and the new work assignments and comment, the

fact that the NRC Guides not being readily available

is an indicator. No satisfactory epartment of

Energy review of the SARP

Page 1 of 9

NM Court of Appeals, Case No. 20,980

[Record Proper - 002023]

- 13-

T. ROCKEFELLER

WIPP PROJECT DECLARATION

INDEX OF ATTACHMENTS

4/18/96 RH-72B SARP draft Comment

Resolutions Review - Bolt Issue

Round 1 Questions, RH-72B SARP/ WID

draft Comment Resolutions {with my

working notations)/ O-ring issue

Outline of Attempts to Issue CAO Corrective

Action Report 97-001, then 97-007.

10/21/96 Version of draft CAR 97-001

Included

Draft /Final Excerpts of the WIPP

Environmental Monitoring Plan for CY 1996

(WIPP RCRA Part B Permit Application

Appendix D-5)

4/26/95 CAO Assessment Report/ WID’s

5/18/95 Response/ 11/3/95 Ltr. To CAO

Legal Counsel

Page 8 of 9

NM Court of Appeals, Case No. 20,980

[Record Proper - 002030 |

3 S45

oy wie * tae —

T. ROCKEFELLER WIPP PROJECT DECLARATION

CERTIFICATE OF SERVICE

I certify that the attached documentation was sent via

regular mail, unless otherwise indicated below, this 3rd

day of September, 1998 to each of the following: ;

Peter Maggiore, Secretary; R. Mertz, Counsel; S.

Zappe; NM Environment Depart. P.O. Box 26110 Santa

Fe, NM 87502 (505) 827-1561

Thomas Udall, NM State Attorney General, also

Lyndsay Lovejoy & Geoff Fettus P.O. Drawer 1508 Santa

Fe, NM 87504-1508 (505) 827-6695

Caron Balkany & Suzanne Westerly, Concerned

Citizens for Nuclear Safety 107 Cienega St. Santa Fe, NM

87501 (505) 986-1973

Janet Greenwald & Pia Gallegos, Citizens for

Alternatives to Radioactive Dumping 144 Harvard SE

Albuquerque, NM 87106 (505) 266-2663

Don Hancock, Southwest Public Information &

Research Center P.O. Box 4524 Albuquerque, NM 87106

(505) 262-1862

Edward Slavin, Jr., Attorney 35 SE 8" Terrace

Deerfield Beach, Florida 33441 (954) 725-0094

s/Tod N. Rockefeller

319 Sunnyview St.

Carlsbad, NM 88220

(505) 887-7461

Page 9 of 9

NM Court of Appeals, Case No. 20,980

[Record Proper - 002031 |

|

Exhibit CR- 3

of Appendix - 6

AFFIDAVIT OF ACKNOWLEDGMENT

Don Hancock, Director of the Nuclear Waste Safety

Program of Southwest Research and Information Center,

hereby affirms that he was served with Tod N,

Rockefeller’s written technical testimony, dated January

14, 1999. The Technical Testimony was submitted

regarding the New Mexico Environment Department’s

Hazardous Waste Act permit proceedings for the Waste

Isolation Pilot Plant. The testimony included exhibits and

attachments. There were five attachments that total 30

pages and were labeled as Attachments

A-1, A-2, B, C, and D.

s/Don Hancock Date: 12/26/2000

The foregoing affidavit of acknowledgment was signed

before me on this 26" day of December, 2000.--

s/Karen Hughes

My commission expires: 6/2/2004

Seal: KAREN HUGHES, NOTARY PUBLIC,

STATE OF NEW MEXICO

ee ee TRIER LEON NE3 oy oe

AFFIDAVIT OF ACKNOWLEDGMENT

I, Joni Arends, Waste Programs Director for

Concerned Citizens for Nuclear Safety (CCNS), being

duly sworn, state that I was served with Tod N.

Rockefeller’s written Technical Testimony dated

January 14, 1999. The Technical Testimony was for

the Hazardous Waste Act application by the US.

Department of Energy for its Waste Isolation Pilot

Plant (WIPP) facility. Furthermore, within Exhibit

CH-4C of Mr. Rockefeller’s testimony was Mr.

Rockefeller’s September 1, 1998 sworn Declaration

that included five attachments. The five attachments,

which totaled 30 pages, were enclosed with and were

part of the Declaration and were labeled as

Attachments A-1, A-2, B, through D.

Dated: January 8,2001. —s/Joni Arends

ACKNOWLEDGMENT

STATE OF NEW MEXICO}

COUNTY OF SANTA FE }

The foregoing instrument was acknowledged

before me this 8" day of January, 2001, by Joni Arends.

s/Jennifer Koomoa, Notary Public

My commission expires: Aug. 15, 2004

Seal: Official Seal, Jennifer Koomoa, Notary Public,

State of New Mexico

SP

AFFIDAVIT OF ACKNOWLEDGMENT

Janet Greenwald a member of Citizens for

Alternatives to Radioactive Dumping (CARD), being

duly sworn, state that she and CARD had been

served with Tod N. Rockefeller’s written Technical

Testimony dated January 14, 1999. The Technical

Testimony was towards the New Mexico

Environment Department’s NM Hazardous Waste

Act permitting proceedings of the United States

Department of Energy’s Waste Isolation Pilot Plant

Project. Furthermore, that within Exhibit CH-4C of

this testimony was a 9/1/98 sworn Declaration of

Mr. Rockefeller that included five attachments. The

five attachments, which totaled 27pages, were

enclosed with and were part of the Declaration and

were labeled as Attachments A-1, A-2, B, thru D.

s/Janet Greenwald Date: Dec. 15, 00

ACKNOWLEDGMENT

STATE OF NEW MEXICO }

SS

COUNTY OF BERNALILLO}

The foregoing instrument was acknowledged before

me this 15" day of December, 2000, by Janet

Greenwald.

s/Becca Jay S. Wieder

My Commission expires: November 6, 2003.

Seal: Becca Jay S. Wieder, Notary Public

State of New Mexico.

- 18-

OORT OR PERT OT

APPENDIX - 7

Pages 19 thru 64

Violations of Environmental, Health and Safety

Laws and Standards By Department of Energy’s

(DOE’s) Waste Isolation Pilot Plant (WIPP) Project

Declaration of Tod Rockefeller

former Environmental Scientist

DOE, Carlsbad Area Office (CAO)

September 1, 1998

I make this declaration to notify the State of

New Mexico of the following safety risks/violations,

environmental law violations, and violations of the

New Mexico Hazardous Waste Act (NMHWA)

concerning the DOE’s WIPP Project in Carlsbad, New

Mexico. These allegations that I make need to be

reviewed and investigated for validation. I can provide

assistance and testimony to accomplish this.

A. WIPP RH-72B Shipping Cask Potential

Clean Air Act (CAA) Violation and Potential Imminent

Danger (Potential Compromise of Containment Seal).

B. DOE Cover-up of Environmental Monitoring

Errors from the EPA.

C. WIPP RCRA Part B Permit Application /

Clean Air Act Violations.

D. Westinghouse, Waste Isolation

Division’s (WID) Violation of a Mine Safety and Health

Administration (MSHA) Safety Regulation.

E. DOE/WID Violation of a DOE Safety

Incident Reporting Regulation

(DOE Order 5000.3B).

ae.

- A. RH-72B Shipping Cask

clearly demonstrate my honest concern for safety.

This review of mine was of WID’s draft Comment

Resolutions for the Safety Analysis Report for

Packaging (SARP) of the proposed shipping cask for

transporting high level radioactive waste to the WIPP

Site over our nation’s highways. This cask has

serious implications for Clean Air Act compliance

and trucking safety. I was temporarily assigned to

work on the approval o° this SARP by from 6/95 to

11/95. In 4/96 I was assigned to the CAO’s

Assurance Team (QA), but still received a copy of the

WIPP contractor’s draft Comment Resolutions to the

SARP. As soon as I! looked at these draft Comment

Resolutions major problems immediately became

apparent to me. Because of this I began my review,

even though it was an area that I was no longer

assigned to. Soon after I called the WIPP contractor

to obtain Nuclear Regulatory Commission (NRC)

Regulatory Guides, necessary for my review, I

received four new atypical work assignments from

my Team Leader. Along with the new work

assignments came the comment that I would have to

“put the SARP review on hold.” Besides my difficulty

in obtaining the necessary NRC Regulatory Guides

and the new work assignments and comment, the

fact that the NRC Guides not being readily available

is an indicator. No satisfactory Department of

Energy review of the SARP

Page 1 of 9

NM Court of Appeals (Ct. App.), Case No. 20,980

| Record Proper - 002023 |

- 20 -

ee ee

T. ROCKEFELLER WIPP PROJECT DECLARATION

could ever be done without the NRC Guides. To

obtain these Guides, I had to state that I would get

them from the NRC myself, if not supplied. Shortly

after this, I obtained what I needed. What does this

fact communicate?

Since my workload drastically changed, I had to do

some of my work on the four new assignments on my

own personal time. I wanted to get back to my SARP

review because | felt that it was important to the

project, there were significant safety deficiencies that

could affect environmental compliance, and I had

such a strong desire to contribute. My review was not

easy to complete on my own, especially considering

my other work and the intense scrutiny that it would

certainly be subjected to, but I worked hard and

completed it nonetheless. I outlined fourteen

comments as not being resolved, but number 2.3 is

most significant. Comment 2.3's significance lies in

its history. The last page of my review itself is an

attachment outlining my attempt to resolve this

comment five months earlier in November of 1995.

The fact of the matter is that my review pointed out

the former CAO manager,

George Dials’ violation of DOE Order 5480.3 par.

6.2.(c). This safety regulation requires “Heads of Field

Organizations” to “Perform an independent objective

review and evaluation of contractors’ safety analysis

reports for packaging designs.”

I was never given any opportunity to review how the

safety issue concerning the bolts for this cask-was

allegedly resolved. There is no evidence to lead me to

believe that this issue does not represent an

imminent Danger to the residents of New Mexico.

a.

Also, during my 4/96 review of the WID Round 1

draft Comment Resolutions for the SARP of the RH-

72B cask, I identified another safety deficiency. This

issue is related to the potential compromise of the

Containment Seal of this cask in addition to the

bolts. What I am referring to, which was allegedly to

be resolved by WID and Packaging Technologies, Inc.,

was concerning the minimum compression of the

cask’s O-rings to maintain the Containment Seal. I

pointed out a cask dimensional error which would,

from my specific calculations, not allow the O-rings

to reach the minimum compression required. The

WIPP Project had at least five engineers (3 WID & 2

Pac Tech) involved with working on the RH-72B cask.

From 11/14/95 to 4/18/96 all of these engineers

failed to properly resolve Comment 2.16 (not 2.17 -

see Pac Tech’s 4/11/96 FAX, Attach. B) concerning

these O-rings and the cask’s ability to maintain an

adequate Containment Seal during normal operating

conditions. The WIPP claims to have such a

thorough system and program of quality control.

These two issues above put all WIPP Quality

Assurance actions and responsibilities in question.

Did anyone, associated with the WIPP Project, check

any of the WID RH-72B SARP Round 1 draft

Comment Resolutions aside from myself prior to

4/18/96 ?

In any professional organization, other than those

operating and managing the WIPP Project, an

individual who reviews a plan, document, or report

and makes comments; receives copies of the

proposed/draft resolutions towards the comments

made for review and validation. I was the individual

who possessed the expertise and who made the effort

to

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i

Page 2 of 9

NM Ct. App., Case No. 20,980

[ Record Proper - 002024 |

T. ROCKEFELLER WIPP PROJECT DECLARATION

make the 4/18/96 comments concerning the RH-72B

shipping cask SARP, yet I was never allowed to review

and validate any of the resolutions. Why was this

done ? The safety issue resolutions concerning the

RH-72B’s bolts and O-rings should be validated by

the State of New Mexico. Otherwise, there is a

potential Imminent Danger to the residents of this

state.

As an example of the difficulty and care which must

be taken in resolving such matters, are serious

problems with the casks being used to store spent

nuclear fuel. Reported by the National Conference of

State Legislatures in their High-Level Radioactive

Waste Newsletter was an article describing the NRC’s

difficulties with the cask manufacturer. The NRC has

issued a demand for information to the

Sierra Nuclear Corporation due to design and

fabrication problems with the VSC-24 spent-fuel dry-

storage casks. - The NRC said, “Numerous NRC

inspection findings indicate that since 1992, Sierra

Nuclear’s quality assurance and corrective action

programs have failed to identify and correct design

control and fabrication deficiencies.” Further

information on this is available via the Internet at

http: //www.nrc.gov/OPA/reports/cask.htm.

I have pointed out two serious design problems with

the WIPP RH-72B shipping cask that are related to

maintaining the. Containment Seal. This is most

2.

important and it would be in the public’s best

interest to independently evaluate what I have

brought to light. Does the State of New Mexico need

to become involved with problems, after it is too late,

with the WIPP RH-72B cask that are similar to the

NRC’s difficulties described above ? :

B. DOE Cover-up of Material Facts concerning

Environmental Monitoring Errors from the EPA

sree

The draft CAO Corrective Action Report (CAR) which I

had attempted to issue (CAR 97-001) was concerned,

in part, with errors involved with monitoring of liquid

radiological effluents at the WIPP Site. The CAO

went to great lengths over two months to prevent the

issue of this CAR. This was done to cover-up these

material facts, related to environmental monitoring

errors, from the EPA. The DOE’s activities here

relate to an allegation of the criminal violation of Title

18 United States Code, Section 1001. I can provide,

explain, and testify to all of the attachments

associated with this violation listed within

Attachment B, if the need arises.

C. WIPP RCRA Part B Permit Application/ Clean Air

Act Violations

I performed the primary review for the CAO of the

WIPP Environmental Monitoring Plan (EMP) due to

my assigned areas. The EMP is Appendix D-5 of the

WIPP RCRA Part B Permit Application to the New

Mexico Environment Department (NMED). There

were no problems, other than two editorial

corrections that I noted, in the draft EMP DOE/WIPP

96-2194. This did not last, however, when I was

giving the final EMP a quick review shortly after I

received it. It turns out that a 72 hour radon ‘cool-

down’ that was in the draft EMP,

=

for initiation of decay counting of air monitoring

filters, had been removed from the final version

without my knowledge from section 5.3.2.. I also

reviewed all of the associated operational procedures

to find an absence of a ‘cool-down’ specified also.

Once I was aware of this,

Page 3 of 9

NM Ct. App., Case No. 20,980

{ Record Proper - 002025 |

T. ROCKEFELLER WIPP PROJECT DECLARATION

however, I was afraid to bring it up to the CAO

managers. I did not know if there was some kind of

hidden agenda again as with the RH-72B cask.

There are two radon isotopes, radon-220 and radon-

222. The problem that radon causes with air

monitoring of radionuclides suspended in the

atmosphere is due not to radon itself, but to its decay

daughters. Radon is a gas, but its decay daughters

are electrically charged and adhere to air

sampling filters. This condition requires a radon

‘cool-down’ of at least 48 hours prior to initiating a

decay count of the filter to obtain accuracy. Radon-

222 is not a problem due to the half-lives of its decay

daughters totaling less than one hour. However,

radon-220's decay daughter half-lives total close to

eleven hours, therefore . . . the radon ‘cool-down’.

This condition represents a violation of the Clean Air

Act (CAA), National Emission Standards for

Hazardous Air Pollutants (NESHAPS), 40 CFR Section

61.93 (b) Emissions Monitoring... ..

-25-

Also, the detection of potential accidental releases of

radionuclides at the WIPP is compromised, which

amounts to possible Reckless Endangerment, or at

the very least Negligent Endangerment of the

workers at the WIPP repository and nearby residents.

D. Westinghouse WID’s Violation of a Mine Safety

and Health Administration (MSHA) Safety |

Regulation (30 CFR Subpart C, Section 57.4200 (b)(2))

This violation was outlined within a 4/26/95 CAO

Assessment Report of WID Hazardous Waste

Operations (CAO:TNR 95-1138). Observation /

Finding 2, noted that: “2. Satellite Accumulation

Area (SAA) No. 7B (underground), which stores

flammables, had no fire extinguisher within sight or

a sign directing an operator to one.”

WID’s response dated 5/18/95 (WS:95:03323,

DA:95:2348) states that: “A fire extinguisher is

located at the intersection of the E300/N260 drift.

This fire extinguisher is visible from SAA No. 7B.”

The SAA No. 7B was located at least 30 feet from

“the intersection of the E300/N260 drift.” To be

visible from this SAA, the fire extinguisher would

have had to have been hanging from the ceiling of

the middle of the drift intersection. It was actually

located around the corner of the intersection out of

sight.

When the assessment was conducted during 3/23

and 3/24/95, the Observation/ Finding described

above was verified and validated by a CAO coworker

and WID employee at the SAA No. 7B location.

WID’s denial of this deficiency prevented outlining of

its cause and to implement steps to prevent it from

occurring again. Since any fire within an

- 26 -

underground facility can be potentially the cause of

loss of life, WID’s denial of this serious safety

violation should be considered Negligent

Endangerment of the workers within the WIPP

repository.

Any fire, especially of a container containing

flammables, in the underground just might cause

panic if there is no fire extinguisher within sight of

the fire. In worst case people could die. A fire

extinguisher was not “strategically located” as 30

CFR 57.4200 (b)(2) requires. WID’s response noted

that “SAA No. 7B was permanently deactivated on

May 12, 1995.”, but I was

Page 4 of 9

NM Ct. App., Case No. 20,980

[ Record Proper - 002026 |

T. ROCKEFELLER WIPP PROJECT DECLARATION

still quite concerned about the deficiency. |

brought the subject up with WID managers and my

CAO supervisor several times, but the denial just

continued. On 10/27/95 1 brought the matter to

the attention of the former CAO manager George

Dials, and also within a 11/3/95 letter to the CAO

Legal Counsel, Cooper Wayman. Please reference

Attachment D. All of these efforts of mine were

ignored.

a.

Additional Examples of the DOE and WID’s Trend of

Covering-up Safety Issues

Two newspaper articles published in the

Carlsbad Current Argus depict the DOE and WID’s

efforts to cover-up material facts related to safety.

The first article titled WIPP Critic Asked to Talk

dated 6/18/82 notes:

SANTA FE (AP) - A consulting engineer

who has criticized tests conducted at

the proposed Waste Isolation Pilot Plant

near Carlsbad has been asked to

present his case before a state task force.

Richard Murphy contends technical

evaluations of the proposed low level

nuclear waste disposal site were

conducted improperly .. .

State Health and Environment

Secretary George Goldstein said he has

sent a letter asking Murphy appear

before the state’s environmental

evaluation group,...

Murphy also said reports on the site

failed to include comments about

pockets of toxic hydrogen sulfide gas.

“... The gas is toxic, but it does not

represent as great a danger as some

people would believe,” Goldstein said.

Despite the knowledge of the potential presence of

pockets of toxic hydrogen sulfide gas not

representing a major risk or danger, the information

was omitted from the WIPP technical evaluation.

— oe

These facts that were omitted in this report alone,

would not represent anything significant. It could

have just been a simple oversight or error.

However, when this instance is combined with

numerous other instances which are quite similar,

a trend is clearly established.

E. DOE/WID Violation of a DOE Safety Incident

Reporting Regulation DOE Order 5000.3B -

Occurrence Reporting and Processing System

(ORPS)

The second article is titled WIPP Team Cleans Up

Lab Spill dated 6/22/94. This article notes the

following:

A laboratory container leak at the

Waste Isolation Pilot Plant near

Carlsbad Tuesday prompted the

evacuation of about 100 employees

while the WIPP emergency response

team cleaned the spill and removed it

from the facility.

The 100 milliliter - about 3.38 ounces - container of

dimethyldichlorosilane was discovered on its side

in a closed laboratory refrigerator at about noon

Tuesday in the analytical laboratory. . .

Page 5 of 9

NM Ct. App., Case No. 20,980

[ Record Proper - 002027 |

a

T. ROCKEFELLER WIPP PROJECT

DECLARATION

The Employees in the building were

evacuated as a safety precaution at

about 2 p.m., ...

~ The former CAO manager, George Dials, sent us

home that day (6/21/94) shortly after we evacuated

the building. DOE Order 5000.3B requires

reporting of “off-normal” incidents and/or those

which may be the cause of “external interest.”

When I attempted to convince several coworkers,

involved with the DOE’s ORPS at the WIPP, that the

lab spill incident should be reported, I was treated

with great hostility. One coworker tried to justify

this cover-up because the analytical lab was in the

same building as office space. This coworker stated

to me that “office space occurrences are excluded”

from reporting to the DOE’s ORPS. So this is

supposed to mean that if an office space catches fire

and kills two dozen people, the incident does not get

reported even as an “off-normal” event with the

DOE’s ORPS ? This is preposterous. Another

coworker told me that the

incident was being reported on a DOE weekly

Operations Report. Neither of the excuses noted

above, however, justify the clear violation of the

DOE safety incident reporting regulation.

The DOE’s CAO and WID violated this regulation, to

cover-up material facts related to a minor safety

incident, which is a report that is internal to the

DOE only. The article in the Carlsbad Current

Argus about the WIPP spill was right next to an

article titled Explosion Rips Chemical Plant

concerning a very similar chemical to the WIPP

chemical.

. 3.

LK

The other article noted that “at least 39 people” were

injured, and that it forced “closing one of the

nation’s busiest highways.” Do you not think that

all of this clearly demonstrated some “external

interest” and that it just might be considered an

“off-normal” event to require DOE ORPS reporting ?

This is another example of the CAO and WID’s

disregard for regulations meant to protect the safety

of WIPP workers, New Mexico residents, and the

environment.

Conclusion

The DOE and WID have long held the practice at the

WIPP of denying and covering-up all material facts

leading to concerns of environmental, health and

safety issues with the project. This is unfortunately

a matter of fact due to such a powerful propensity of

DOE and WID managers to engage in such cover-

ups. There are serious and harmful effects

concerning this practice such as the problems noted

with the WIPP’s operation, the Environmental

Protection Implementation Plan (EPIP), the WIPP

Environmental Monitoring Plan (EMP), and the RH-

72B shipping cask. These safety risks,

environmental law violations, and violations of the

New Mexico Hazardous Waste Act (NMHWA) must be

brought to a halt by the New Mexico Environment

Department (NMED) and New Mexico State Attorney

General. Otherwise, the DOE and WID will give no

thought to doing so until people are killed or the

environment suffers serious damage which people

become aware of after it is too late.

I have provided documented evidence of the

violation and potential additional violation of the

NMHWA. Section 74-4-4.2 D notes that :

ee

“The secretary may deny any permit

application . . . pursuant to the

Hazardous Waste Act if the applicant

or permittee has:

(4) exhibited a history of willful

disregard of | environmental laws

of any state or the United States... ..

(6) violated any provision of the

Hazardous Waste Act ....

Ref. also 74-4-13 , Imminent Hazards.

Page 6 of 9

NM Ct. App., Case No. 20,980 i

{| Record Proper - 002028 |

T. ROCKEFELLER WIPP PROJECT DECLARATION

I have provided substantial evidence to support my

allegations that the DOE and WID have violated the

Clean Air Act, a Mine Safety and Health

Administration safety regulation, Title 18 United

States Code, Section 1001, and have created

Imminent Hazards for the residents of New Mexico

with the operation of the WIPP Project. Due to this,

it would seem very appropriate for the NMED

Secretary to “commence a civil action in district

court for...” an “injunction” towards the operation

of the WIPP Project. Also, assessment of a civil

and/or criminal penalty towards the DOE and WID,

and issuance of a Compliance Order to address all

validated violations of the NNUHWA. The WIPP RCRA

Part B Permit should also be suspended pending

resolution and completion of all of the above.

a

wc TR a

If the WIPP Project does go into active operation, it

must do so only with open and honest sharing of

all relevant information with encouragement to all

individuals involved to do so. This is essential to

the protection of New Mexico residents and the

environment.

The information that I have given, is confidential

and it may not be shown to any individual(s), other

than those to whom I have made distribution to,

without my prior written consent. In accordance

with 28 U.S.C. § 1746 and 18 U.S.C. § 1001, I

declare under penalties of perjury that the above

statements are true and correct to the best of my

knowledge, information and belief.

This is the 1 day of September, 1998

s/Tod N. Rockefeller

319 Sunnyview St.

Carlsbad, NM 88220

(S05) 887-7461

nohardrock@cavemen.net

Page 7 of 9

NM Ct. App., Case No. 20,980

[ Record Proper - 002029 |

-_.

T. ROCKEFELLER WIPP PROJECT

DECLARATION

INDEX OF ATTACHMENTS

SS

A-1 4/18/96 RH-72B SARP draft Comment

Resolutions Review - Bolt Issue

A-2 Round 1 Questions, RH-72B SARP/ WID

draft Comment Resolutions (with my

working notations)/ O-ring Issue

B. Outline of Attempts to Issue CAO

Corrective Action Report 97-001, then 97-

007. 10/21/96 Version of draft CAR 97-

001 Included

Cc. Draft/Final Excerpts of the WIPP

Environmental Monitoring Plan for CY

1996 (WIPP RCRA Part B Permit

Application Appendix D-5)

D. 4/26/95 CAO Assessment Report/ WID’s

9/18/95 Response/ 11/3/95 Ltr. To CAO

Legal Counsel

Page 8 of 9

NM Ct. App., Case No. 20,980

| Record Proper - 002030 |

- 34-

a. eae

T. ROCKEFELLER WIPP PROJECT

DECLARATION

CERTIFICATE OF SERVICE

I certify that the attached documentation was sent

via regular mail, unless otherwise indicated below,

this 3% day of September, 1998 to each of the

following:

Peter Maggiore, Secretary; R. Mertz, Counsel;

S. Zappe; NM Environment Depart.P.O. Box 261 10

Santa Fe, NM 87502 (505) 827-1561

Thomas Udall, NM State Attorney General,

also Lyndsay Lovejoy & Geoff Fettus P.O. Drawer

1508 Santa Fe, NM 87504-1508 (505) 827-6695

Caron Balkany & Suzanne Westerly,

Concerned Citizens for Nuclear Safety 107 Cienega

St. Santa Fe, NM 87501 (505) 986-1973

Janet Greenwald & Pia Gallegos, Citizens for

Alternatives to Radioactive Dumping 144 Harvard

SE Albuquerque, NM 87106 (505) 266-2663

Don Hancock, Southwest Public Information

& Research Center P.O. Box 4524 Albuquerque,

NM 87106 (505) 262-1862

Edward Slavin, Jr., Attorney 35 SE 8g”

Terrace Deerfield Beach, Florida 33441

(954) 725-0094

s/Tod N. Rockefeller

319 Sunnyview St.

Carlsbad, NM 88220

(505) 887-7461

Page 9 of 9

NM Ct. App., Case No. 20,980

| Record Proper - 002031 |}

. 35 -

ATTACHMENT A-1

To APPENDIX - 7

United States Government Dept. of Energy

Carlsbad Area Office

memorandum Carlsbad, NM 88221

Date: APR 18 1996

Reply to

ATTN of: CAO: AT: TNR 96-0951

Subject: CAO Review of WID’s Draft Comment

Resolutions to Round 1 Questions on

the Safety Analysis Report for

Packaging (SARP) for the Remote-

Handled Transuranic Waste

Packaging, Model 72-B.

To: D.E. Watkins, Acting Team Leader,

CAO National TRU Programs

I have pointed out where some of Westinghouse’s

Waste Isolation Division’s (WID’s) draft comment

resolutions will create serious delay problems with

the approval of this SARP. Fourteen comments have

not been resolved by WID.

~ 2H

In some cases, as in comment number 2.17, the

draft resolution communicates uncooperativeness.

I think that it is essential to this process that the

deficiencies, which | have pointed out, be

addressed before these draft resolutions are

submitted to the primary evaluators (Argonne

National Laboratory, East [ANL-E)).

It is certain that ANL-E and DOE Headquarters will

assure that all of their comments are thoroughly

resolved before they pass the SARP on to the

Nuclear Regulatory Commission for final approval.

s/Tod Rockefeller

Environmental Scientist

CAO Assurance Ream

1 attachment

oe:

Kent Hunter, CAO

Bob Spooner, CAO

Mike Brown, CAO

J.J. Garcia, WID

WASTE ISOLATION PILOT PLANT

a hoe Lenina nin a rintdantin

DOCUMENT NAME: Draft Comment Resolutions to

the Safety Analysis Report For Packaging for the

RH72-B Shipping Cask

REVISION: - -

DOCUMENT DATE: March 27, 1996

REVIEWER: T. Rockefeller

REVIEW INSTRUCTIONS/ACCEPTANCE CRITERIA:

1. Take note of all issues brought up and

address each fully.

2. Formulate planning and responses to be

complete so that further questions do not arise.

3. Take into consideration other areas which

could be affected.

FORWARD RESULTS TO: Bob Spooner

COMMENTS DUE BY: As agreed

Com No. Comment

1.4 Comment not addressed (see attached)

1.22 see attached

1.27 Resolution Incomplete (see attached)

a4 Same as 1.4

2.3 Comment not addressed (see attach.)

2.5 Comment not addressed (see attached)

2.17 Comment not addressed (see attached)

3.2 Comment not addressed (see attached)

>

Ls

Com No. Comment

3.7 TYPO

3.11 Comment not addressed (see attached)

3.17 Comment not addressed (see attached)

Fu Comment not addressed (see attached)

9.1 Comment not addressed (see attached)

9.2 Resolution needs clarification (see attach.)

s/Tod Rockefeller Date: 4/16/96

Attachment to

CAO Review of Proposed WID Responses to the

RH72-B SARP Comments ¥.

16 APRIL 96

1.4 The comment requires that “components of the

packaging are designed, fabricated, examined, and

tested to the applicable ASME Code requirements.”

Referencing a document that in turn makes further

references with no direct link to specific components

provides no useful information. This is not being

evaluator friendly and demonstrates a lackadaisical

attitude.

1.22 Reference to where “limits for allowable

external temperature and radiation levels” can be

found is not provided.

1.27 The comment notes inclusion of the welding

specification as an Appendix to Chapter 1 in the

SARP. This is not addressed.

2.3 The NUREGs state that the appropriate Parts

of 10 CFR provide the “regulatory basis” for each

guide. Ref. NUREG/CR 7.10 Section A dtd. 6/86.

~ 50 -

The resolution notes that “the purpose of NUREG

/CR-1815 is not to preclude defects, but to ensure

that any material flaws will not propagate cracks

and result in sudden, catastrophic failure.” It is

also stated that the requirements of “71.85(a) are

ensured through the application of a NRC-approved

QA system.” NUREG/CR-1815 establishes “critical

flaw size” related to “fracture-critical components.”

I agree that the RH72-B bolting is not a

“fracture-critical component” with the applied

material property requirements. The redundancy of

the bolting in this application agrees with that

categorization. My agreement, however, is

contingent upon assurance of high quality material,

as specified, for the production of the bolts. If the

quality of the material or heat treatment involved

was questionable, this condition could affect the

RH72-B cask’s effectiveness especially under a

worst-case scenario. The 10 CFR Part 71.85(a)

notes that “no cracks, pinholes, uncontrolled voids,

or other defects which could significantly reduce the

effectiveness of the packaging” be present. An

“approved QA system” does not insure this as

structured in this SARP.

All of the bolting has been categorized as

“Category B” material in the SARP. Ref. 1.2.4.7.1

and Table 1.2.4.7-1. For “Category B” materials

“procurement of materials need not be from the

Approved Suppliers List” and that “traceability of

materials is not required.” Conversely, Table

1.2.4.7-1 requires material certifications for the

“Category B” bolting material from non-approved

suppliers. I do not agree with this methodology for

assuring the quality of the bolting material,

especially with consideration of the counterfeit

fasteners issue. Even if the chance of the bolts or

raw material used being counterfeit was slim or

remote, I do not believe it is worth taking chances.

- 40 -

a ee

ae ee)

My suggestion dated 11/22/95 (attached) directed

towards resolving this comment, minus the Charpy

Impact Transition Curve, would be valuable here _ if

not ignored again.

2.5 The comment notes that “the initial

temperature difference between the outer cask and

the lead will range from 50 F to 250 F at the time of

the lead pour” and that “this issue needs to be

addressed.”

Stating that “thermal stresses in the cask

sheils are minimized through the carefully controlled

fabrication techniques of the lead pour process” and

that “post-fabrication inspections... are carried out

to further ensure that any fabrication-induced

distortions. . . are not in excess of the toleration

limits” do not address the issue. What has been

asked for is for some detail concerning how

fabrication stresses will be minimized during the lead

pour. What are these “carefully controlled

fabrication techniques” . . . a moderate level of detail

is being requested, not very general promises. The

resolution to 2.12 provides specific detailing. Why is

there such a drastic difference between resolutions?

Is it not very important to resolve all of the comments

expeditiously?

2.17 The comment notes “for example”, that

means more than one. To address only the one

“example” provided is like an insult to the

evaluators. Dealing with the evaluators in this

manner, I stress very highly, is most definitely what

must never be done!

3.2 The comment notes that “the maximum

allowable decay heat and hydrogen gas generation

rate limits . . . are given for only five content codes.”

«it .

“The SARP has not explained . . . how these codes

represent the bounding condition for all of the

permissible contents.” The resolution makes a

promise to expand the codes in the future. This is

not an “explanation”. A “worst-case” code should be

estimated to establish a “baseline analysis” as done

for the shielding analysis in 5.1.

3.11 The comment notes “maximum allowable

decay heat limits for all the permissible contents.”

The resolution deals only with five content codes in

Table 3.4.4.4-4. As in 3.2 a “baseline analysis”

would resolve this comment.

7.2 The catch-all response of reference to the

NRC’s approval of the SARP for the TRUPACT-II

without any specific references is no resolution of

this comment. Additionally, the NRC is not

performing the primary evaluation of this SARP.

Perhaps, however, if a few specific examples were

related from the TRUPACT-II SARP, that may be

adequate for resolving this comment.

9.1 The SARP Quality Level Categories originate

from the “Vectra QA Program” and not the CFRs.

See the explanation within 2.3 for why this

comment has not been addressed.

9.2 The lead obtained for producing the shielding

is Quality Level B, while the vendor making the lead

pour is an Approved Supplier or Quality Level A

would possibly resolve this comment.

1 attachment

- 42 -

ATTACHMENT

To 4/16/96 RH-72B SARP Review

United States Government Dept. of Energy

Carlsbad Area Office

memorandum Carlsbad, NM 88221

Date: NOV 22 1995

Reply to

ATTN of: CAO: WST: TNR 95-2961

Subject: Comments made towards the Safety

Analysis Report for Packaging (SARP)

on the 72B RH-TRU Cask.

To: Todd Burrington, TRU Waste Program,

WID.

To address the comment contained within paragraph

2.3 of Chapter 2, Structural, the following could be

applied:

Each material or heat lot certification of raw stock

utilized for the manufacture of all of the bolting

material for the 72-B RH TRU waste shipping cask

shall be thoroughly tested. This testing shall include

those tests that ensure adequate ductility and

strength while also providing assurance that the

material is 100% defect free.

The required testing, for each material certification,

shall consist of a Charpy Impact Transition Curve to

establish that the temperature at which nil-ductility

occurs satisfies

4S

the requirements of NUREG / CR-1815. Also, the

performance of room temperature Tensile and

Charpy Impact testing shall establish that the

ultimate tensile, ductility and toughness

characteristics are appropriate for each application.

Additionally, when each heat lot of raw material is

purchased for manufacture of the bolting hardware,

100% ultrasonic flaw detection testing can be

stipulated as a requirement from the supplier. An

appropriate size of defect can be noted for the reject

level for this testing to ensure compliance with

NUREG / CR-1815 and corresponding ASME Boiler

and Pressure Vessel Code.

Lastly, after completion of the final machining of the

bolting material, a Liquid Penetrant Inspection (LPI)

can be performed. This LPI testing would detect any

surface defects resulting from machining or

handling. These kind of material inspections are

routinely performed to satisfy the U.S. Navy’s Level I

Subsafe requirements and will adequately guarantee

the quality of the 72-B cask bolting material.

s/Tod N. Rockefeller

Environmental Specialist

ce:

Bob Spooner, CAO

Kent Hunter, CAO

Denny Brown, CAO

- 44 -

PM he ne iS haga a

te

te eee ennre Ic

What follows below is a hand written notation

applied to the bottom of the November 22, 1995 U.S.

Government Memorandum directly above: This

notation was made to this Memo and included as

part of Tod N. Rockefeller’s 1/14/99 written

Technical Testimony concerning the NM State

permitting proceedings. (NM Ct. App., Case No.

20,980 ) This notation stated:

Two work days subsequent to the date

of this letter, which was 11/27/95, I

was reassigned to the CAO’s Quality

Assurance (QA) group, the “CAO

Assurance Team.” Within this new

“Team”, I was not assigned functions

other than Clerk duties. American taxpayers

were ‘shelling out’ $ 60,000 a

year for a Clerk.

s/Tod N. Rockefeller

Dated: 1/14/99

This reassignment of Petitioner Rockefeller

was a typical example of the United States

Department of Energy’s (DOE’s) retaliations against

him for identifying safety-related problems. The

DOE’s retaliations culminated in Petitioner’s removal

from federal service on 12/10/99 for putative “poor

performance”. The work demonstrated within

Attachment A-1 above is a highly technical and

expert review of the SARP for the Model RH-72B

nuclear waste shipping cask.

- 45 -

ATTACHMENT A-2

To APPENDIX - 7

The relevant portions of this exhibit contain the

following:

Facsimile Transmittal Sheet

Dated: 11/14/95

Seal: DEPARTMENT OF ENERGY

UNITED STATES OF AMERICA

OFFICE OF FACILITY SAFETY ANALYSIS, EH-32

To: Bob Spooner, Fax No.: 505 / 887-0707

Phone: 505 / 234-7474, Subject: 72B,

No. of Pages: 16

From: Ashok Kapool, Phone: 301 / 903-6838

Fax No.: 301 / 903-9691, UNCLASSIFIED

FACSIMILE

Hand Written Note:

Bob

Final Round 1 Questions.

If any questions, please call me.

Thanks.

Ashok

U.S. DEPARTMENT OF ENERGY

19901 GERMANTOWN ROAD

GERMANTOWN, MD 20874

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11/14/95 301/903-9691

ATTACHMENT

Round 1 Questions

Safety Analysis Report for Packaging

Model 72-B, RH-TRU Waste Package

Docket 95-19-9518

Chapter 1, General Information and Drawings

The following 2 questions address the Packaging

Quality Assurance Requirements of 10 CFR 71,

Subpart H.

1.1 Make the SARP a controlled document in

accordance with 10 CFR § 71.113.

1.2. Provide in the SARP lists of all drawings and

specifications with revision number as

required in 10 CFR § 71.113 for document

control.

The following 2 questions address the NRC Design

Guidance for Type B Packagings plus the

requirements in 10 CFR § 71.37(b), § 71.85(a), and §

71.119.

1.3 Section 1.2 of Chapter 1 should provide .. ..

Round 1 Questions, 72-B Waste Package, page 8

Chapter 2, Structural

2.16 Provide information on the magnitude of

motions that the O-rings can tolerate without

resulting in reduction in the degree of leak

tightness that they can maintain. Provide the

basis for this magnitude.

- @7 «

2.16 Show that the movements that will be

cont’d experienced by the container lid

relative to the container body will be

less than this magnitude.

Westinghouse Electric Corporation

Government Operations

WD:96:02051 HA:96:04553

Waste Isolation Division (WID)

Box 2078

Carlsbad, NM 88221 March 27, 1996

Mr. D.E. Watkins, Acting Team Leader

National TRU Programs

Carlsbad Area Office

U.S. Department of Energy

P.O. Box 3090

Carlsbad, NM 88221-3090

Subject: Round 1 Questions on Safety Analysis

Report for the Remote-Handled

Transuranic Waste Packaging,

Model 72-B, Docket 95-19-9518

Dear Mr. Watkins:

The WID is providing the draft resolution for Round

1 Questions on the Safety Analysis Report for

Packaging (SARP) for the Remote-Handled

Transuranic (RH-TRU) Waste Packaging, Model

72-B, Docket 95-19-9518. It is requested that the

draft resolutions be distributed to the DOE

reviewers for immediate consideration. The draft

resolutions outline either a direct response to each

question or the revision plan that states how the

final documentation will be changed to answer the

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:

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question raised. In parallel, the revised SARP pages

and drawings are being prepared in accordance with

draft resolutions. This approach is being

implemented to expedite the final revisions and

complete the review process of the SARP.

If during the review of the draft resolutions a

question arises, please feel free to contact us by

phone or if warranted, we will provide expertise to

the reviewers location to aid in question resolution.

s/Wayne H. Caplinger

RH-TRU 72-B Q1 Resolutions

(Draft Resolutions)

Author/Editor: Westinghouse - WID

Reviewer: U.S. DOE - Round 1 Questions

Date: March 22, 1996

Project No. 763434.01.04

Page 22 of 47

Report Title : SARP, Model 72-B, RH-TRU Waste

Package (Docket 95-19-9518),

Revision 0, December 1994.

Comment No. 2.16 : Provide information on the

magnitude of motions that the O-rings can tolerate

without resulting in reduction of leak tightness . . ..

Resolution: The Inner Vessel closure seal

configuration consists of three O-ring bore seals,

each located on a different diameter of the IV lid.

... In order to determine the minimum compression

which may occur on the IV containment O-ring, the

largest tolerance stackup on the lid, flange, and O-

ring groove dimensions will be utilized. ...

, =

The minimum possible residual O-ring compression

is thus [(0.272 - 0.232)/0.272] x 100% = 15%.

During Mr. Rockefeller’s 4/16/96 review of

the draft resolution for Comment 2.16, he applied

his hand written working notes of his findings on

this page (22 of 47) which were as follows:

No margin for safety regarding leak

tightness of O-rings.

E.g.: Min. possible O-ring compression

is 15 %. Min. residual compression

req’d to maintain leak-tight sealing

capability is 15 %. No margin for error.

Actual dimensions establish the min.

O-ring compression to be 14%!

Mr. Rockefeller was not allowed, by the DOE,

to be part of the resolutions (after 4/18/96) to his

own comments and inquiries.

~ ©

ATTACHMENT B

To APPENDIX - 7

EPA “Deposition”, Attach. B Index

Waste Isolation Pilot Plant (WIPP)

Project Problem Area

The DOE's Carlsbad Area

Misrepresentation to the

*Clean Air Act - Faulty Radionuclide Air Monitoring

(Attach. B-16)

Attachments

2. My 4/22/94 review of the “Draft” WIPP Land

Mgm’t Implementation Plan.

This is an early demonstration of the

problem area and my attempt at correction.

My letter dated 12/19/96 - Cancellation of CAO

Corrective Action Report (CAR)

97-007 (formerly 97-001). This was “Issue III”

of my 6/6/97 Whistleblower report.

4. E-Mail concerning the EPA Audit of the CAO’s

QA Program dtd. 12/17/96.

S. My handwritten revisions of the 12/11/96

version of CAR 97-007 to address the 7"

Round or last CAO effort to prevent my issue

of this CAR.

6. 12/11/96 version of CAO CAR 97-007.

oe

10.

5

12.

13.

14.

My request to Ms. Lee Chism of the CAO

Assurance Team (CAO-AT) for a new CAR

number after Mr. Denny Brown (CAO-AT

Team Leader) had reassigned

97-001.

12/10/96 version of 97-001 with the CAO’s

6" Round of required changes.

This version of 97-001 shortly prior to

12/10/96 was noted to require a change of

the “Response Due Date” (the 96 should be

97). Between “7” & “8” Mr. Brown came up

with additional required changes noted on

this version (Round 5).

11/1/96 version of 97-001 with the CAO’s 4°

Round of required changes.

10/21/96 version of 97-001 with the CAO’s

3 Round of required changes.

Corrected version of the cover letter to issue

the CAO CAR 97-001 dtd. 10/21/96.

Unmarked 10/21/96 version of CAR 97-001.

( ATTACHED )

The CAO’s 2™ Round of required changes

dated 10/21/96 for the draft CAR submitted

prior to 10/17/96.

My response dated 10/18/96 to the CAO’s 1*'

Round of required changes or “Draft CAR

Review Comments”.

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a The CAO’s 1* Round of required changes

dated 10/17/96.

3. WIPP Environmental Monitoring Plan (EMP)

Draft and Final Version Excerpts.

The final EMP had the air monitoring ‘radon

cool-down’ omitted without my knowledge.

( see Attachment C - below )

Tod Rockefeller

former Environmental Scientist

WIPP Site Team,

Carlsbad Area Office,

U.S. Dept. of Energy

os.

EPA 1/5/98 “ Deposition” Attachment B -12

United States Department of Energy

CORRECTIVE ACTION REPORT

1. CAR No. 97-001 2. Activity Report No: -

3. Page 1 of 1

4. Controlling Document: CAO Information Mgmn’t

Plan (IMP) CAO - 94 - 1 dtd. April 1994.

S. Affected CAO Team Leader: Wayne Walker

6. Responsible Organization: WID

7. Discussed With: Dave Kump, Max Bennet &

Hardy Bellow.

8: Requirements: The CAO Information

Management Plan (IMP) CAO - 94 - 1001 dtd. April

1994 contains the current requirements for

document control of all DOE / WIPP reports or

plans.

9. Conditions Adverse to Quality:

a. The content of section 5.2.1 of the WIPP

Environmental Protection Implementation Plan

(EPIP), DOE / WIPP - Draft - 2199, is inconsistent

with the section title. E.g.: 5.2 Radiological Effluent

Monitoring; 5.2.1 Effluent Monitoring - Liquid

Releases: the content of this section discussed Non-

radiological liquid effluents only. In addition,

radiological liquid effluent monitoring was discussed

nowhere else within the EPIP. This is in violation of

the CAO IMP Section 1.5.5 which states that “CAO

documents should show clarity of expression and

consistency of format.”

~~.”

b. WID’s current procedure for controlling

their documents, WP 15 - 102, contains references

to WP 15 - 103 and 15 - 104, which were

superseded in 1994. This is in violation of the

CAO IMP Section 1.5.11 which states that: - - - .

c. The CAO IMP requires that a review form

(similar to IMP Fig. 1-6 ) be included with draft DOE

/ WIPP plans or reports. Also, the distribution /

review / approval cycle must be recorded on a form

(similar to IMP Fig. 1-4 ) with a CAO approval

signature. Neither of these requirements were

fulfilled for the recent drafts of the EPIP or the

Environmental Monitoring Plan.

d. IAW section 1.5.11 of the CAO IMP:

“When a superseding document is issued , a

statement to that effect must appear on the title

page.” This was not done for DOE / WIPP - Draft -

2199 and DOE / WIPP 96 - 2194.

e. The WP 15 - PS manual replaced the

“WIPP Documentation Plan” WP 15 -1 in June

1994, yet there is a binder in the CAO set of

controlled documents with a label and status sheet

within it noting: “WIPP Documentation Plan”, “WP

15 -1", “As of 08/02/96". Also, the WID Index

notes WP 15 -101 as being “replaced by 15 - PS

3001, 2, & 3.” The procedure 15 - PS 3001 does

not exist. This is in violation of Section 1.5.11 of

the CAO IMP which states: - - - .

10. Suggested Actions: A thorough review of

requirements contained within the CAO IMP and

past / current documentation control practices

should be completed to formulate a corrective

action plan to assure compliance with the IMP.

— -

12. Applicable Types of Actions: Remedial: _X_,

Investigative: X_ , Root Cause: _X_, Actions to

Preclude Recurrence: _X

13. CAR Initiator : s/Tod Rockefeller

Date: 10/21/96

14. Response Due Date : 11/22/96

15. Concurrence: s/Wayne Walker ,

Affected Team Leader

Date: 10/21/96

s/Thomas J. Reese ,

for Assurance Team Leader

Date: 10/21/96

What follows below is a hand written notation

applied to the bottom of the 10/21/96 Corrective

Action Report directly above. This notation was

made to this CAR and included later as part of Tod

N. Rockefeller’s 1/14/99 written Technical

Testimony concerning the NM State permitting

proceedings. (NM Ct. App., Case No. 20,980) This

notation stated:

The deficiencies that I outlined above

clearly demonstrate that the WIPP

contractor’s Quality Assurance Program

was quite ineffective. The DOE’s

Carlsbad Area Office (CAO ) went to

great lengths to prevent my issue of this

report in order to cover-up these material

facts from the EPA.

s/Tod Rockefeller Date: 1/18/99.

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ATTACHMENT C

To APPENDIX - 7

The relevant portions of this exhibit contain

the following:

DRAFT Version of the

DOE Waste Isolation Pilot Plant (WIPP )

Environmental Monitoring Plan (EMP )

DOE / WIPP 96 - 2194

Section 5.3.2:

Effluent Monitoring - Airborne Emissions

4" Paragraph -

After Transuranic waste is received at the WIPP,

filters (samples ) from the systems at Stations A, B,

and C will be collected (at two cubic feet per

minute)

each working day, and counted for gross alpha and

beta activity, after a 72-hour period to allow for

the decay of radon progeny. Selected effluent air

samples will be analyzed for specific radionuclides

on site (Table 5 - 2 ) or at an off-sit lab if significant

gross alpha or beta activity is indicated.

FINAL Version of the

DOE Waste Isolation Pilot Plant (WIPP )

Environmental Monitoring Plan (EMP )

DOE / WIPP 96 - 2194

Section 5.3.2:

Effluent Monitoring - Airborne Emissions

4" Paragraph -

After Transuranic waste is received at the WIPP,

filters (samples ) from the systems at Stations A, B,

and C will be collected (at two cubic feet per minute)

each working day, and counted for gross alpha and

beta activity. ** Selected effluent air samples will be

analyzed for specific radionuclides on site (Table 5 -

2 ) or at an off-sit lab if significant gross alpha or

beta activity is indicated.

= “ after a 72-hour period to allow for the decay

of radon progeny. ” ( OMITTED )

s/TR (Tod Rockefeller )

Date : 5/30 97

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ATTACHMENT D

To APPENDIX - 7

The relevant portions of this exhibit contain

the following:

United States Government Dept. of Energy

Carlsbad Area Office

memorandum Carlsbad, NM 88221

Date: APR 26 1995

Reply to

ATTN of: CAO: TNR 95-1198

Subject : Assessment of WID Hazardous Waste

Operations.

To: Warren Bodily, Manager,

Environmental Programs, WID

Please respond to the five items outlined on the

attached report within thirty calendar days from

the above date. Please provide detailed

explanations and / or proposed corrective actions

where appropriate. If you have any questions,

please do not hesitate to call me on extension 7447.

s/Tod Rockefeller

Environmental Scientist

Attachment

cc w/o attachment:

K. Hunter, CAO

D. Brown, CAO

D. Robertson, WID

= =

Attachment

CAO ASSESSMENT / PROGRAM

REVIEW REPORT

Date of Activity : 3/23 & 3/24/95

Assessor : Tod Rockefeller

Activity Description : Review of WID hazardous

waste operations and Satellite Accumulation Areas

(SAAs ).

Observations / Findings :

3.

Revision of 02-601, Nonradiological

Hazardous Waste Management, is handled in

a confusing manner. E.g.: there were 13

individual changes made to this procedure,

including hand written markings, prior to its

first revision.

Satellite Accumulation Area (SAA ) No. 7B

(underground ) , which stores flammables ,

had no fire extinguisher within sight or a sign

directing an operator to one.

Kee em em em em em em ee em ee ee ee ee ee ee

Westinghouse Electric Corporation

Government Operations

WD:95:03323 DA:95:2348

Waste Isolation Division (WID)

Box 2078

Carlsbad, NM 88221 May 18, 1995

Mr. V. Daub, Manager

Office of National TRU Waste Operations

U.S. Department of Energy

Carlsbad Area Office

P.O. Box 3090

Carlsbad, NM 88221-3090

Subject : Review of WID Hazardous Waste

Operations and Satellite

Accumulation Areas

Reference: Letter from Mr. T. Rockefeller to Mr.

W. H. Bodily, CAO:TNR 95-1138,

dated April 26, 1995, Subject,

“Assessment of WID Hazardous Waste

Operations”

Dear Mr. Daub:

Attached is the response to observations / findings

noted during a review of the hazardous waste

operations and Satellite Accumulation Areas (SAAs )

performed on March 23 and 24, 1995.

If you have any questions regarding this matter

please contact Mr. W. H. Bodily at extension 8990.

s/L. R. Fitch, Manager Environment,

Safety, Health, and Regulatory Compl.

Attachments

7,

WID Attachment to

May 18, 1995 Letter Above

Observation / Finding :

2. Satellite Accumulation Area (SAA ) No. 7B

(underground ) , which stores flammables ,

had no fire extinguisher within sight or a

sign directing an operator to one.

Response :

WP 06 - HM 3109, Nonradiological Satellite Waste

Accumulation Area Inspection, Attachment 1, states

“Fire extinguisher and spill control materials are

available in the area. ”

A fire extinguisher is located at the intersection of

the E 300 / N 260 drift. This fire extinguisher is

visible from Satellite Accumulation Area No.7B.

Satellite Accumulation Area No. 7 B was

permanently deactivated on May 12, 1995.

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———_—_— — eee et ---

United States Government Dept. of Energy

Carlsbad Area Office .

memorandum Carlsbad, NM 88221

Date : NOV 03 1995

Reply to

ATTN of : CAO: WST: TNR 95-2926

Subject : CAO Review of WID RCRA Hazardous

Waste Operations.

To: Cooper Wayman, Legal Counsel,

Carlsbad Area Office

Within each of the following four areas, concerning

RCRA regulated nonradiological hazardous wastes

generated at the WIPP Site, I have become aware

of weaknesses. Due to the potential for liabilities,

even those that are relatively minor, to arise the

nature of the WIPP Project points out that these

activities would be a productive direction for the

CAO to place consideration and concerns.

1. Operations: Satellite Accumulation Area

(SAA ) No. 7B (underground ), which stored

flammables , had no fire extinguisher within

sight or a sign directing and operator to one.

Ref. CAO Assessment Report dated 4/26/95

(TNR 95-1138 ).

WID’s response dated 5/18/95 did not

address this noncompliance properly. They

did not acknowledge the deficiency,

investigate the root cause, or offer corrective

action to prevent recurrence of this safety -

related issue.

- 63 -

Procedures : WID’s revision of 02 - 601,

Nonradiological Hazardous Waste

Management. Revision of this procedure was

handled in a confusing manner. WID’s

procedure Change Process WP 15 - PS 3003

and WP 13 - 1 allow “ minor “ handwritten

changes to be made without the procedure

progressing to the next revision level.

Thirteen handwritten changes were applied to

this procedure prior to its revision. Some of

the changes were illegible and lacked

direction as to where they were being applied.

Also, most of these changes did not meet

WID’s own definition of being “ minor “.

Ref. WP 13 - 1 also CAO: TNR: 95 - 1138.

s/Tod N. Rockefeller

Environmental Scientist

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