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Connie Walker received a B.S. and a M.S. in Geology, Colorado School of Mines and a B.S. in Geology, Colorado State University. Ms. Walker has more than 17 years of environmental consulting experience, including the performance and management of numerous RCRA permitting tasks, with an emphasis on groundwater monitoring, waste characterization, and corrective action. On behalf of the EPA and other clients, Ms. Walker has reviewed/written RCRA Part B permit applications, Subpart X permit applications, closure/post-closure plans, corrective measures studies, interim measures evaluations, RCRA facility investigation workplans and reports, RCRA facility assessments, and RCRA sampling programs. Ms. Walker has conducted training programs for compliance monitoring and compliance evaluation, and developed quality assurance project plans. Ms. Walker has participated in and managed WIPP related projects for over 10 years, including providing support to the EPA Office of Solid Waste (OSW) on both the WIPP Test and Disposal Phase No-Migration Variance Petition. Ms. Walker worked as a Techlaw consultant to the EPA Office of Radiation and Indoor Air (ORIA) on the WIPP Compliance Certification Application review. Ms. Walker worked as a Techlaw consultant to the NMED on the WIPP Test Phase and Disposal Phase Permit Applications. Currently, Ms. Walker is a member of the NMED WIPP Support Program for Techlaw. Techlaw is the technical consultant for the NMED on the Applicant's Permit. SECTION IV.B.2.b--NON-MIXED WASTE--GASEOUS VOCs.
The NMED would have no confidence in the waste coming to WIPP if it is not characterized to the final WAP. Prohibited items could be in the waste as well as explosive, reactive, corrosive, and ignitable wastes. The EPA's final decision on the Compliance Certificate did not address the hazardous component of the waste. The EPA's Office of Radiation and Indoor Air (ORIA) regulations are not duplicative of the state RCRA regulations. ORIA inspections do not extend to RCRA issues. The EPA does not evaluate Headspace Gas Sampling and Analysis, Acceptable Knowledge, Visual Examination, or Radiography. AUDIT PROGRAM
THE DOE'S COMMENTS ON THE AUDIT
1. The DOE wants the NMED to approve the Final Audit Reports within 30 days. The NMED, however, feels 30 days is too short a time. 2. The DOE wants the NMED to participate in the audits and resolve any problems before the end of the audit itself. The NMED is currently reviewing testimony (both oral and written) presented in this Hearing on the mandatory participation of the NMED in the audits. The NMED might need time after the audit is over to review all information. 3. The NMED may have to review the actual characterization and actual data to ensure that the DOE is complying with the characterization process. The NMED would examine actual results to see if those results function properly in the characterization process. 4. The DOE originally thought the audit approval should not be required for generator sites already approved by the EPA. Now the DOE no longer believes EPA's ORIA is a substitute for NMED audits. 5. The DOE said the Final Audit Report should not be available for public review and comment, stating that it would be duplicative and unnecessary. However, the law requires the public to be involved. As with any document, the public may examine the Final Audit Report, submit comments, and the agency is required to read and comment on the public's comments. The NMED may also create more of a role for the public to be involved in the process for the Final Audit Reports. 6. The DOE does not want to be tied to the 45-day notice requirement to NMED to schedule audits. The DOE requests more flexibility. The NMED is currently revising the 45-day notice requirement and will require some general notice of the audits. MISCERTIFICATION RATE FOR RADIOGRAPHY
The results of the Reed and Molecke study on radiolysis apply only to the waste that was experimented on, not to all waste. Ms. Walker does not know what percentage of the waste is identical to the experimental waste. Reed and Molecke say the generation of VOCs is not important from the perspective of regulatory compliance. Even if the non-mixed waste were characterized in accordance with the terms of the WAP of the revised draft Permit, the NMED would not necessarily have confidence in the results because the draft Permit is not applicable at this time. The final WAP has not been issued. The final WAP will be the applicable waste characterization standard. The audits are the only mechanism to ensure that the equivalent of fingerprinting is being performed correctly at the DOE generator sites. The NMED would raise as many issues as possible during the audit; however, limiting audit issues that may arise during the review of the Final Analysis Report does not allow the NMED to meet its regulatory responsibilities. Documentation may be generated during the audit, and it may be voluminous. There may be voluminous AK to review. The audit report is a public record. Any document reviewed by the NMED allows public comment to the NMED, even in the absence of a comment period. The audit provision is the linchpin for demonstrating compliance with the WAP. Audit review criteria should not include actual waste characterization data. Examples of how waste characterization is implemented will be examined and some data will be examined as part of the audit process. If it appeared that the DOE/WID was providing inadequate data, the NMED could ask for more actual data. The NMED has access to any data in the operating record and in the WWIS. Other procedures in the Application that could demonstrate compliance with the WAP are the Quality Assurance Plan (QAP) and the Quality Assurance Project Plan (QAPjP). The QAPjP describes how a generator site meets the requirements of the WAP. It road maps operations that address compliance with the WAP. The QAPjP typically repeats specific requirements and enumerates Standard Operating Procedures (SOP). These procedures may be site-specific technical elements of the WAP. No site has submitted a SOP to the NMED. After the final Permit is issued, QAPjPs and SOPs must be provided prior to site audits. LANL would be required to continue to apply the 11% miscertification rate for VE after the final Permit is issued. The actual miscertification rates are different from the 2% rate in the draft Permit. The NMED will revisit this issue. The audit checklists are necessary. Proper implementation of the WAP should include information on prohibited items. The intent of AK is to identify prohibited items and the timeframe when the AK package is assembled. After the Permit process is completed, the QAPjP, SOP, and other documents will set forth the required AK procedures at each site. If mandatory AK is not available, supplementary AK will fill in the gaps. In this case, the waste will be redesignated as "newly generated" and will be subject to the VE requirements of newly generated waste. The DOE, under its own procedures, has certified 3 sites to send waste: the Idaho National Engineering and Environmental Laboratory (INEEL), the Rocky Flats Environmental Technology Site (RFETS), and the Los Alamos National Laboratory (LANL). The draft Permit does not contain actual procedures on waste analysis. The NMED is not required to concur with the DOE's certification of these 3 sites. Throughout the DOE's Application, there are references to radiolysis. There is, however, no section addressing radiolysis. Radiolysis was not included in the first draft Permit, but was included in the second draft due to public comment. This is an example of public comment providing information to the NMED to help them protect human health and the environment. Section II.C.3.a-k lists prohibited items under the Treatment, Storage, and Disposal Facility Waste Acceptance Criteria (TSDF-WAC). For instance, liquids are used in some processes at generator sites. In the absence of a prohibition on liquids in the final Permit, the NMED would have no control over whether liquid waste could be disposed of at WIPP. In the absence of adequate characterization, prohibited liquids could be disposed of at WIPP, thus endangering human health and the environment. Some of the VOCs from the liquids are carcinogenic. The same regulatory problems could occur with other prohibited items such as explosives, PCBs, and ignitable, corrosive, or reactive waste. Headspace gas analysis is used as a confirmatory process on all the drums and to assess underground gas concentrations. However, headspace gas analysis does not measure the actual concentrations of gas in the drums. The first draft Permit required the waste to be treated to land disposal treatment standards under RCRA. Typical land disposal facilities regulated under RCRA are required to treat the waste before disposal. The NMED received many comments on this section of the first draft Permit and this requirement was deleted from the second draft. The treatment standards were deleted in order for the draft Permit to conform to the Land Withdrawal Act provision exempting WIPP from RCRA land disposal requirements. However, this Land Withdrawal Act provision was known before the first draft Permit was written. Treatment of the waste would have reduced the amount of VOC emissions. In the first draft Permit no waste could be disposed of at WIPP without a Permit Modification for each individual site (Section II-C-1). Any kind of Permit Modification requires public notice. [Modifications are classified as Class I, Class II, and Class III.] Class I modifications provides for notifications. More public involvement is required for Class II modifications. Class III modifications can include hearings. The II.C.2 audit requirements added to the second draft partially replace the deleted portions of II-C-1. The Permit modification requirements provide for more public notice and comment than that required by the audit process. The NMED is reviewing the various comments on this subject. More public comment allows the NMED to receive additional information; less public comment inhibits NMED's ability to protect public health and the environment. Although the EPA inspections do not require the evaluation of headspace gases or solid sampling, the NMED requires both. The EPA has certified LANL to characterize and ship debris waste in the May 1990 certification rule. The EPA has not certified any other LANL waste streams in the EPA Certification Rule (homogenous solids or soils/gravel). Once the Permit is in place, the new provisions of IV.B.2.b could address the TA-55-43 waste stream. Techlaw and the NMED reviewed all public comment on the TA-55-43 waste stream and the Sampling and Analysis Plan (SAP). The NMED's review is considered by the NMED to be an enforcement issue, not a permitting issue. Southwest Research and Information Center's (SRIC) and CCNS's comments on the SAP, which were not reviewed by the NMED when they were submitted, are also considered a separate issue from the Permit even though they were resubmitted to NMED as comments to the draft Permit. The 2% miscertification standard was developed using VE data at the Idaho National Engineering and Environmental Laboratory (INEEL). The miscertification standard was published in 1994. VE was used as a DOE characterization process prior to 1994. The DOE has not updated the miscertification rate to reflect recent data. The 2% miscertification rate is based only on the DOE's data and analysis. The NMED has not established a miscertification rate for the final Permit or for the final WAP. The EPA's final rule on their Compliance Certification does not include regulations relating to miscertification procedures or rates. The NMED will be the only external agency [federal or state] establishing a miscertification rate. The Permit will require the annual review of the miscertification rate at each site. The rate will be assessed in the first year and that rate will be used the following year. The miscertification rate is established on an annual basis for each site. The miscertification rate issue is being further assessed by the NMED. For example, if the Oak Ridge National Laboratory (ORNL), a DOE generator site, starts to ship waste in 2002, ORNL would use the baseline 2% miscertification rate. The baseline rate would apply even though the waste streams differ at the various DOE sites. The ability to accurately characterize waste also varies. [Ms. Walker first learned of the differing site rates at this Hearing.] ORNL could hypothetically ship hundreds or thousands of drums to WIPP based on the 2% miscertification rate for a year before review. The 2% miscertification rate would apply even if ORNL's historical miscertification rate was much higher. There are no requirements to exhume or reexamine drums emplaced under a lower rate if the rate is found to be much higher. There is no miscertification limit in the Permit that would result in the prohibition of a generator site to ship to WIPP. VE is a testing technique used to verify radiography (or used in place of radiography). If prohibited items are found during VE, a non-conformance report must be made to the DOE within 5 days and to the NMED within 30 days. Prohibited items should be identified in the AK before radiography or VE, both of which are used to confirm the AK. The VE becomes supplemental to AK. When VE shows prohibited items that were not listed in the AK, that waste will not be shipped until the item is removed or the situation is resolved in some way. The discovery of a prohibited item indicates that there is an omission in the AK. Since AK is the entire process, including the verification, the omission of a prohibited item is not considered an "error" of AK. There are many elements in the Permit that could prevent the shipment of a waste stream to WIPP. Some examples are if an audit has not been completed, if manifests are not available, or if prohibited items or incompatible materials are in the waste stream, etc. There is no monitoring for tritium in the headspace gas sampling and analysis. It is possible that the presence of PCBs could not be known, even through VE. The presence of PCBs could be known only through AK and testing. Some chemical components of the waste could be chemically altered after they are sealed in a container. For example, headspace gases are chemically altered by radiolysis. There is nothing in the Permit that defines the duties of the NMED personnel during the audit. The DOE issues a yearly calendar of audits. When the DOE believes a site
is ready to be audited, the DOE schedules an audit.
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