January 15, 2004

Mr. Steve Zappe
New Mexico Environment Department
2905 E. Rodeo Park Drive, Building 1
Santa Fe, NM 87505-6303

Re: WIPP Class 2 Permit Modification Request - LANL Sealed Sources

Dear Mr. Zappe:

Concerned Citizens for Nuclear Safety (CCNS) strongly opposes the Department of Energy (DOE) proposed Class 2 permit modification request (PMR) that would apparently allow an unlimited number of sealed sources to be shipped from Los Alamos National Laboratory (LANL) to the Waste Isolation Pilot Plant (WIPP). The PMR is inaccurate, incomplete and does not provide an adequate basis that public health and the environment would be protected.

If approved, the proposed modifications will undermine existing safety standards for shipping waste through New Mexico and disposing of it at WIPP. CCNS strongly urges the New Mexico Environment Department (NMED) to deny all seven PMR. The PMR are incomplete, inaccurate and several lack a scientific basis. Thus, the PMR cannot be approved as submitted.

Regulations under the New Mexico Hazardous Waste Act (20 NMAC 4.1.900, incorporating 40 CFR 270.42(b)(6)(B)) provide that the New Mexico Environment Department (NMED) may deny a Class 2 modification. We ask again that the request be denied, as NMED denied a similar request on September 11, 2003.

The PMR should be denied because it is not properly a class 2 modification. Over the years in which DOE has submitted a PMR for sealed sources, CCNS has stated that the sealed sources PMR should be classified as a Class 3. The PMR would totally eliminate headspace gas sampling and analysis for all sealed sources, despite the fact that the need for such sampling and analysis was required as a result of a five-year permitting process, which included 19 days of public hearings. For most waste containers, the HWA permit requires 100 percent headspace gas sampling. For a limited number of waste streams, a statistical sample is required, which is less than 100 percent, but much more than zero. DOE is proposing no headspace gas sampling and analysis for the sealed sources.

DOE is attempting to assure us that the sealed sources meet the permit's requirements through acceptable knowledge (AK). During the permit hearing process it was conclusively demonstrated that AK can be faulty. Thus, NMED may not rely on AK to demonstrate that sealed sources contain no volatile organic compounds, are not leaking and are otherwise adequately characterized.

The General Accounting Office (GAO) strongly criticized the sealed sources program in its report Nuclear Nonproliferation: DOE Action Needed to Ensure Continued Recovery of Unwanted Sealed Radioactive Sources. GAO Report 03-483, April 2003. We have enclosed the report and request that it be included in the administrative record. The GAO will be preparing two other reports on this topic. CCNS strongly suggests that NMED keep an eye out for them.

The GAO report points out that many sealed sources are not defense waste and are thereby prohibited from disposal at WIPP. Id., p. 26. The report also said that DOE must develop new storage and disposal sites for those sealed sources and criticized DOE for not doing so even though it was given such a mandate 17 years ago. Id., p. 28. Thus, there is no need for the modification. Instead, DOE must develop a safe, secure site for all of its sealed sources, which is licensed by the Nuclear Regulatory Commission, and that site cannot be WIPP. Id., p. 26.

Further, the sealed sources were not included in the Transuranic Waste Baseline Inventory Report (TWBIR). As NMED stated in its proposed WIPP permit modification of November 26, 2003, NMED issued the permit "based on the assumption that all information contained in the permit application and the administrative record was accurate, including the representation that the TWBIR reflected the total DOE TRU waste inventory." Fact Sheet, p. 2. At the same time that NMED is considering a modification that would prohibit any waste that was not included in the TWBIR, it should not approve a modification that would allow for the sealed sources, which were not included in the TWBIR, to come to WIPP. Furthermore, the question remains whether the sealed sources are defense waste and prohibited from WIPP. As already noted above, there is ample additional reason to deny the request.

CCNS strongly urges NMED to deny the PMR because it is inaccurate, incomplete, and does not provide an adequate basis that public health and the environment would be protected.

Thank you for your consideration of our comments.

Joni Arends
Executive Director

Enclosure: U.S. General Accounting Office report GAO-03-483, łNuclear Nonproliferation: DOE Action Needed to Ensure Continued Recovery of Unwanted Sealed Radioactive Sources,˛ April 2003.

WIPP Permit Modifications