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"I am Don Hancock. A brief resume has been distributed with the Notice of Rebuttal Testimony. "I will specifically address the NMED direct testimony related to non-mixed TRU waste and Permit Condition IV.B.2.b. "NMED's direct testimony discussed the DOE commitment to not dispose of any waste whether radioactive, mixed or hazardous at WIPP prior to receiving a permit. The NMED testimony did not include the fact that the identical DOE commitment was made to me, the nonprofit organization that I work for, and to the citizens of the state. Attachment 1 is a letter from George Dials on February 14, 1994 that contains the identical commitment included in the letter on the same date to then NMED Secretary Judith Espinosa, which was attachment 1 to the NMED direct testimony. "The DOE commitment was key not only to what the new application for a permit to dispose of wastes at WIPP would contain but also to the essential RCRA requirement of public participation in RCRA section 7004(b). RCRA also recognizes the essential role for citizens in the citizen suit provisions of RCRA section 7002. "On page 4 of its direct testimony, NMED stated that "the non-mixed waste prohibition is essential to ensure that the Applicants do not dispose unpermitted waste in a RCRA-regulated unit at any time." The intent of the prohibition has been violated as the Applicants have taken one shipment of waste to WIPP from Los Alamos, which arrived at WIPP this morning. And the Applicants intend to violate the letter of the prohibition within a few hours or days when they take the six standard waste boxes to Room 7 of Panel 1 for disposal. "Bill Richardson, Secretary of Energy, specifically stated DOE's intent on March 22: "This week, the Waste Isolation Pilot Plant (WIPP) will "begin disposal of radioactive transuranic waste from the Los Alamos National Laboratory." Attachment 2. "The actions of the Applicants to transport waste to WIPP, store wastes at WIPP, and dispose of wastes at WIPP prior to the issuance of a final permit under the Hazardous Waste Act is not included in the permit application. Clearly, the application is inaccurate and incomplete. Further, the facts in the record in this proceeding demonstrate the Applicants have knowingly and willfully violated the commitments made to NMED and to citizens in the February 14, 1994 letters. The applicants have not revised their application to reflect the actual conditions and operations of WIPP as of this time. Thus, SRIC believes the applicants are in violation of N.M.S.A. Section 74-4-4.2.D(6). "Even in this proceeding, the applicants did not introduce evidence to revise their application to make it complete and accurate. NMED must remand the Application for revision to address issues related to the wastes that DOE has shipped to WIPP. The Application must also be remanded to address the Applicants' intent to transport, store, and dispose wastes at WIPP in addition to the one shipment that arrived today at WIPP. "The applicants have not provided to the public, and presumably not to NMED, comprehensive information related to waste characterization of the specific wastes that were shipped to WIPP. Such information would include, but not be limited to: * how it complies with the application,
"SRIC believes that now that waste is at WIPP, the pending permit application must be remanded and a new permitting process initiated with a new permit application made available for public comment and NMED review. The existing permit application and the revised draft permit are incomplete and inaccurate, so SRIC recommends denial of the permit. SRIC also believes that NMED must now take enforcement action against the Applicants because prohibited wastes are stored at WIPP in areas that are included in the application and the revised draft permit. "Based on past performance regarding WIPP, NMED may not terminate the existing permitting process. It will face pressure to water down or eliminate any prohibition on non-mixed waste in the final permit so as to allow the wastes now at WIPP and other wastes to be stored and disposed at WIPP. "Not content with its existing violations of RCRA and the Hazardous Waste Act and its commitment to NMED and to citizens to not ship any wastes to WIPP without a permit, DOE intends further actions to break its commitment and to avoid citizen participation in the RCRA process. "On March 23, 1999, DOE informed SRIC and others that it intends to ship wastes to WIPP from the Idaho National Engineering Laboratory during the week of May 17, 1999. I also expect that DOE will soon state that it will begin shipping waste from the Rocky Flats Plant in Colorado to WIPP soon thereafter. "With the Sampling and Analysis Plan for LANL waste stream TA-55-43, Lot No. 1, the Applicants and the NMED did not provide for public involvement in the process, despite specific, repeated requests from SRIC, which are already in the record with our comments on the draft permit, dated August 11, 1998, and the comments dated January 18, 1999. "If NMED receives any waste characterization information from the Applicants regarding the INEEL and RFP wastes, it should make that information available to the public, solicit public comment on the information, and provide public notice of any meetings with Applicants to discuss those wastes. The Applicants should also provide that information to the public. "In an ironic sense, it is fitting that the public hearing on the proposed WIPP permit under the HWA and RCRA end on the day that wastes arrive at WIPP. We have gone through a permitting process that was not based on the Applicants real intent. The permit hearing is ending and we have a new reality that WIPP is not being operated as described in the application or in the testimony and evidence provided at this hearing. Although the hearing is ending, NMED's responsibilities under the Hazardous Waste Act do not end. NMED should act to deny the permit application."
The DOE said that the Land Withdrawal Act requires waste disposal to start by 1997. But in fact, Section 10 of the Land Withdrawal Act actually says that the DOE should complete all actions required under Section 7B to be able to dispose of waste by November, 1997; provided that, before that date all health and safety standards are met and all legal processes are completed. So the commitment is for the DOE, not for the NMED to issue a permit by 1997. Congress did not exempt WIPP from compliance with RCRA, which it could have if it wanted to. Judge Penn [in the case of State of New Mexico v. DOE, (D.D.C, Civ. Nos. 91-2527 and 91-2929)] has said that WIPP has interim status. SRIC has appealed that issue and will ask for Judge Penn's decision to be overturned and request that any waste disposed of at WIPP be sent back to the generator sites. A disposal facility with interim status may dispose of RCRA wastes, but it still has to comply with the RCRA interim status regulations. DOE has not even said that they have complied with the RCRA interim status regulations. The TA-55-43 waste stream is subject to some review by the NMED. The public should be involved with the review of that waste stream. This is why SRIC has objected to the deletion of the Permit Modification requirement for generator sites so that the public could participate in this review. SRIC submitted comments on the TA-55-43 waste stream that were not considered by the NMED. These comments showed that much of Lot 1 could be considered hazardous because there was no documentation on 11 of the drums to show they were not hazardous. It would not have been impossible for the NMED to consider SRIC's information if adequate time had been given by the NMED for public submissions. The NMED found the waste stream was not hazardous, but this is being contested in the D.C. federal Court of Appeals. Dr. Hirschhorn's declaration was submitted to Judge Penn in the above-entitled case. Mr. Franke's declaration was not submitted to Judge Penn, but was submitted in this proceeding. Both Dr. Hirschhorn and Mr. Franke were asked to work for SRIC and CCNS after January 25, 1999, when the Reply Brief was sent to Judge Penn. There were no declarations from Dr. Hirschhorn or Mr. Franke with that Brief. On February 1, 1999, SRIC and CCNS supplemented their Reply Brief with Dr. Hirschhorn's declaration. The IV.B.2.b provision is not part of the final Permit because there is not yet a final permit. But the DOE is aware that the NMED intends this section to ensure that DOE does not emplace unpermitted wastes in a hazardous waste facility at any time. SRIC has never received a letter from the DOE stating that George Dials' commitments are null and void. Secretary Richardson's statement was not part of the record before 4 days ago. The DOE's intention to ship non-mixed waste was officially mentioned in this permitting process on August 11, 1998 when SRIC submitted comments [not the DOE] and this was less than a year ago. Steve Zappe and the NMED did not consider the DOE's October 1997 letter to be a specific request or notification to ship waste. In fact, the TA-55-43 waste did not exist then. Pam Rogers made up the TA-55-43 waste stream after that date [October 1997]. On May 18, 1998, the NMED received a letter from the DOE saying they would be giving the NMED information on the TA-55-43 waste stream. In June and July 1998 [after the May 18, 1998 letter], the NMED said that the information submitted on that waste stream was inadequate. The DOE says that the NMED later found in December 1998 that the information was adequate. However, that December 1998 letter said that the waste could be "managed as non-hazardous waste at LANL," but the letter does not say that the waste can be shipped as such to WIPP. That December 1998 letter also says the NMED have given adequate response to public comments. That is not true, because the NMED did not respond to the comments received. Waste that is already disposed of at WIPP cannot be characterized to the requirements of the final Waste Analysis Plan (WAP). The prohibited items in the Treatment, Storage, and Disposal Facility Waste Acceptance Criteria (TSDF WAC) [Section II.C.3 of the draft Permit], even in small quantities, could have bad effects on the operation of the facility. The TSDF WAC was not part of the hazardous waste determination of the TA-55-43 waste stream because the TSDF WAC is not in final form yet. Section IV.B.2.b of the Permit is necessary, but the language "identical to" needs to be included in the Final Permit so that the requirements of Section IV.B.2.b are clear and enforceable. SRIC opposes the 2% miscertification baseline rate. This miscertification rate is based on work done at INEEL in the early 1990's. This work was not related to the requirements in the revised draft or final Permit. There is more recent data showing higher miscertification rates. The starting miscertification rates should be site-specific. The rate should be created through the performance of each site. If a baseline is used, it should be the highest. Twelve months is also much too long to use as the miscertification rate. The miscertification rate should be based on a shorter time to avoid shipping prohibited items under a miscertification rate that is too low. The Permit should build in strong safeguards. There needs to be a requirement for a Permit Modification for each site before it can send waste to WIPP. This requirement is necessary so that a process is established where real data may be put in front of the public. The Land Withdrawal Act specifically states that WIPP is for defense generated TRU waste only. Congress was aware that there was non-defense TRU waste in the DOE inventory. Congress specifically excluded non-defense TRU waste from disposal at WIPP. The TA-55-43 National Aeronautics and Space Administration (NASA) waste is outside the scope of the Land Withdrawal Act requirements. LANL has admitted that defense TRU and non-defense TRU waste is co-mingled. The most important point today is whether circumstances are so changed that the pending Permit Application must be denied. There have not been any other WIPP hearings where all sides spoke of the geology of the site and other things. The Environmental Protection Agency (EPA) hearings and the DOE National Environmental Policy Act (NEPA) hearings did not have this kind of technical presentation with cross-examination. SRIC asked the EPA to conduct a hearing like this, but the EPA did not. The RCRA Permit will be the only operating permit for the WIPP facility. EPA is interested in the long term only, not the day-to-day operations at WIPP. That is why this hearing is so important. Part of RCRA's purpose is public participation and that is also important. Mr. Hancock has seen drums at INEEL that were stamped "WIPP certified" that were characterized under conditions that were not even close to the Waste Analysis Plan (WAP) under the draft Permit. Characterization at other sites is suspect and needs miscertification rates based on actual experience. The citizens of the State of New Mexico need stringent requirements in the Permit so that characterization is not what George Dials, Keith Klein, or even Don Hancock says. Waste characterization will be what is in the final WAP. Citizens for Alternatives to Radioactive Dumping (CARD) lost its appeal with Judge Vasquez because they could not show a clear legal violation that could be a finding of nuisance. There was not enough time to fully present all the information that exists on the Lot No. 1 waste stream and its nature. The rush was caused by the DOE's haste to ship one shipment without the proper 14 day notice to the State of New Mexico and without giving the public adequate time to respond. The Land Withdrawal Act at no point requires waste to be shipped to WIPP at any particular time. We need more Continuous Air Monitors (CAM) in the WIPP facility to monitor for RCRA and radioactive releases. A member of the public said that a former radiographer at LANL stated
that LANL used to certify waste as "WIPP certified" even when the assay
machine was broken and when the RTR machine was not working and did not
give a clear picture. Figures from Acceptable Knowledge (AK) were simply
copied over onto the assay forms, etc. This activity was never caught by
any of the audits. If this type of activity were to occur in the future,
the NMED's audit procedures would not catch it either.
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