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New Mexico Environment Department (NMED) made an opening statement. The NMED stated that its role is to hear public comment and respond to those comments. Some conditions in the Permit have both regulatory and technical components. Although the NMED will not be responding to recent comments during the Hearing, they will explain their imposed conditions. The NMED submitted a large binder of NMED's Direct Testimony Regarding Regulatory Process and Imposed Conditions.
Mr. Zappe is a Geologist III in the NMED's Hazardous and Radioactive Materials Bureau. Mr. Zappe received a M.S. in Geological Science, University of California, Riverside, and a B.S. in Physics, California State University, Fresno. Mr. Zappe has been the WIPP Permit preparer since 1994. Previously, Mr. Zappe was an exploratory geophysicist for Shell Oil and a technical trainer for geological modeling software. The Permit Application consists of two parts. Part A is a pre-printed form which identifies the owner/operator, location, types of waste, and types of activities requiring a permit. Part B is larger, less structured, and its requirements are specified in the regulations. There must be a chemical and physical description of the waste, descriptions of the disposal units, preparedness, monitoring, contingency closure and post closure plans, among other things. In addition, the Permit for WIPP would regulate container storage units and miscellaneous units (waste panels.) The completeness and accuracy of the Application will determine when or if a Final Permit will be issued. TECHNICAL COMPLETENESS DETERMINATION
Revision 6 was issued in April 1996. There were still some lingering deficiencies. The NMED decided not to continue the cycle of requesting more information since they probably would get back what they wanted from the Applicant anyway. They issued a Notice of Technical Completeness in June 1996. The same deficiencies persisted as before, but the NMED decided to address them by imposing conditions in the draft Permit. For instance, under waste characterization, the NMED prohibited all remote-handled (RH) waste. The DOE originally wanted the NMED to only observe the audit process, but the Permit requires the NMED to approve the audit. The NMED also changed some of the assumptions for the risk assessment for VOC releases from the repository. The DOE identified on their own that the groundwater monitoring program needed revision. However, the completeness determination was rescinded in June 1997 for various reasons, including that additional, new corrective action information was received. Revision 6.5 of the Application was issued in November 1997. The NMED issued a new Completeness Determination in January 1998. The first draft Permit was issued May 15, 1998. After the final Permit is issued, it can be modified if the NMED receives new information or if the Permittees request a modification. All modifications require public notice. WIPP WASTE INFORMATION SYSTEM (WWIS)
FINANCIAL ASSURANCE
The RCRA regulatory scheme provides for environmental protection from hazardous waste from "cradle to grave," including final cleanup of disposal sites. Under RCRA, those who benefit from disposal operations shall be responsible for the cleanup costs when the site is closed. Disposal site operators must work in a way that minimizes the possibility of the spread of contamination, always anticipating the closure of the facility. Disposal site operators must have enough money to complete final cleanup. The NMED is concerned that if an operator has a history of environmental noncompliance, the operator might disregard appropriate management of their wastes, driving up cleanup costs at the end of the project. The DOE requested a waiver of the financial assurance requirements in its Application. Mr. Zappe introduced a letter into the record which disclosed Westinghouse's environmental noncompliance record. This letter shows that Westinghouse is responsible for numerous facilities and details 307 discrete environmental violations and 55 Occupational Safety and Health Administration (OSHA) violations. More than 100 of the violations resulted in fines. The NMED finds no reason to believe that Westinghouse's operations at WIPP will be any different. The DOE has already claimed inadequate funding as a defense for not cleaning up contamination as a result of its operations at the Los Alamos National Laboratory (LANL) in New Mexico. Inadequate funding has been used at other federal facilities as a defense for not meeting obligations to comply with environmental laws. This reasoning has been used by the DOE at its Hanford, Washington facility for why the DOE did not clean up the tanks leaking radioactive and hazardous materials into the groundwater. [This contamination could move to the Columbia River in a short amount of time.] No other state has permitted a facility for mixed transuranic waste disposal. The EPA has not permitted any other mixed waste disposal site in any state. The Permittees must estimate in detail the closure and post-closure costs. The Permittees must also demonstrate financial capabilities with financial assurance. The NMED imposed what it estimates to be the real closure and post-closure costs in the draft Permit. In the Permittees Comment 179, the DOE proposes that DOE guarantee that if Westinghouse fails to perform the closure/post-closure properly, the DOE will ultimately be liable. The DOE proposes that Westinghouse should not have to show financial assurance. The regulations also require that the operator demonstrate financial assurance for normal operations and accidents through liability insurance. In the same Comment 179, Westinghouse's Waste Isolation Division (WID) proposes to submit a declaration of self-insurance. WID also suggests that the DOE will indemnify WID against claims of public liability. The NMED is not prepared to comment on or approve any of the suggestions found in Permittee's Comment 179 at this time. NON-MIXED WASTE PROHIBITION
Technical concerns include HEADSPACE GAS SAMPLING AND ANALYSIS FOR Volatile Organic Compounds (VOCs). [Volatile Organic Compounds (VOCs) are a broad range of organic compounds that vaporize at relatively low temperatures. VOCs are typically generated by chemical reactions that take place when the original compound is used as a cleaner, degreaser, or solvent. Carbon tetrachloride, methylene chloride, xylene and methanol are some of the most common VOCs in the WIPP waste. VOCs such as benzene are also generated by radiolysis.] Some of the VOCs are carcinogenic. The NMED is required to protect human health and the environment. Without information on VOCs in the headspace of the drums, the NMED cannot protect human health and the environment. The Permittees have failed to indicate whether VOCs would be present in the headspace of non-mixed waste containers in their Application. If there are VOCs in the non-mixed waste that are not characterized or reported [and it is probable that there will be], it will be impossible to know what contribution those VOCs will make. [It is unknown how many drums of "non-mixed" waste the DOE will bring to WIPP.] It will also be impossible to accurately determine the VOC room limits in the repository. [See below for more on the room-based limits.] The EPA has no intention of monitoring for VOCs at WIPP. Acceptable knowledge (AK) records are the basis for a mixed or non-mixed waste determination. If AK is not confirmed by Real Time Radiography (RTR), Visual Examination (VE), Solids Sampling, as well as headspace gas analysis, the NMED will have no confidence in their ability to use AK to determine whether the waste is mixed or not. Unless all of the waste is required to undergo either RTR or VE, there will be no way to determine if prohibited items will be disposed of at WIPP. If Solids Sampling is not required, it will be difficult to determine if the waste is mixed or non-mixed. It is important to know that all of the data has been validated to have confidence in the data. ENFORCEMENT CONCERNS
ROOM-BASED LIMITS
CRITICAL COMMITMENT BY THE DOE
The NMED has relied upon the DOE's statements that no waste would be shipped to WIPP before the Final Permit was issued. George Dials, the manager of the Carlsbad Area Office, stated in a letter dated February 14, 1994 that the DOE would not send any waste to WIPP before a Permit was issued. On May 18, 1998 the NMED first learned of the DOE's plans to send the TA-55-43 waste to WIPP before a final Permit was issued. The DOE's announcement was made on the Monday following the Friday the second draft Permit was issued. If the NMED had known of the DOE's change before the draft Permit was issued, the NMED would have had many questions. The NMED could have ordered the DOE to resubmit a new revised Application that would have accurately reflected the DOE's intentions. In the alternative, the NMED could have requested more information or even denied the Permit if the NMED believed that the DOE had knowingly given false information. Because the DOE's announcement came after the draft was issued, it became public comment instead of any of the above. The DOE's intention to ship non-mixed waste before a final Permit is issued is an attempt to subvert the public comment process. The DOE's announcement bypassed the right of the public to comment on the DOE's proposal to ship non-mixed waste to WIPP. The DOE's announcement necessitates a major modification of the Application. The DOE's commitment to manage all the waste as mixed waste is critical and key to all of the assumptions that went into making the draft Permit. The DOE's change in its commitment could cause NMED to deny the DOE the Permit. MODULE IV.B.2.b:
AUDIT AND SURVEILLANCE PROGRAM
The NMED's letter to George Dials, the WIPP Manager, of June 27, 1996 states that there does not need to be a Permit modification for suggested revisions and additional information. The NMED was vaguely aware that the DOE might dispose of non-mixed waste at WIPP before the Permit was issued, at that time, by October 1997. However, the Application still stated in many places such phases as "[o]nce the WIPP facility has obtained a hazardous waste permit, the facility will be used for the permanent disposal of TRU waste, including TRU mixed waste containing hazardous constituents regulated under the HWA." The Permit was issued the DOE would use WIPP to dispose of transuranic waste and transuranic mixed waste. The Permit does envision disposal operations continuing for non-mixed waste if a Permit has been issued but not renewed. However, this is after the initial issuance of a Permit. The May 18 letter was the first instance of the NMED receiving information that a specific waste stream from a specific site would come to WIPP with or without a Permit. This letter was not part of the administrative record. The letter was related to a non-permitting issue (enforcement) so Mr. Zappe did not consider it as a part of the Permit. The NMED considered the public comments received. Even if the non-mixed waste were characterized to the requirements of the draft Permit Waste Analysis Plan (WAP), it would not be sufficient. No Permit has been issued. The WAP in the draft Permit may be ultimately different from the final permit WAP. The DOE cannot characterize waste to satisfy the language of IV.B.2.b until the issuance of the final Permit. If the DOE disposes of non-mixed waste at WIPP before a final Permit is issued, the DOE could be subject to enforcement action. Under some circumstances the NMED can regulate non-mixed waste if it is being disposed of in a RCRA permitted facility. The EPA will do numerous inspections at the DOE generator sites and at WIPP. There is no indication that the EPA records are relevant to the RCRA waste. The WIPP facility is already regulated as a waste generator under RCRA. The NMED has inspected the facility as a generator of hazardous waste only. [For example, the waste generated from the lead-contaminated water is covered by RCRA, waste generation from the construction and other activities on-site.] These inspections do not extend to any proposed disposal operations covered in the Permit. In 1980 the EPA interpreted its financial assurance rules to state that the government can guarantee its own financial assurance. EPA's interpretation assumed that state and federal facilities would always have adequate resources. Now, 20 years later, the DOE is claiming they do not have adequate funding for clean-up. The DOE has attempted to claim that since the DOE is exempted from financial assurance requirements, their contractor, Westinghouse's Waste Isolation Division (WID) should be too. The EPA's regulations exempt only the state and the federal government, not private entities. The EPA clearly defers to the state to decide if the operator must prove financial responsibility. Again, there is some question if the DOE is financially secure. The NMED believes external regulation of non-mixed waste is a critical issue. There is an inherent conflict of interest between the DOE's mission and its self-regulation of safety. This conflict is aggravated by a long legacy of secrecy which is at the root of many of the safety problems and contamination at the DOE facilities around the country. The NMED changed the language found in IV.B.2.b [from "identical to" to "in accordance with"] after the DOE's January 1999 submittals. This is not a new NMED policy. It has been NMED's position that non-permitted waste is prohibited in the Permit. In II.C.3, the Treatment, Storage and Disposal Facilities (TSDF) Waste Acceptance Criteria (WAC) lists prohibitions on wastes not characterized to the WAC/WAP. The NMED has always intended to guarantee that no prohibited waste is disposed of at WIPP. The NMED has the discretion to enforce this matter as they see fit. In fact, new permittees are usually prohibited from even constructing a facility without a permit. The NMED determines if the facility design can protect human health and environment, before the facility is constructed. This requirement is part of the RCRA regulations. Yet, WIPP was constructed without a permit. The Land Withdrawal Act (LWA) requires the DOE to comply with the Solid Waste Disposal Act (SWDA), which includes RCRA. The NMED has interpreted this requirement to mean that WIPP must have a permit. The LWA states many times that the DOE must comply with the Solid Waste Disposal Act. In addition, applicable state authority makes it clear that the DOE must comply with RCRA at WIPP. In August of 1993 the NMED issued a draft permit for the test phase. Less than 2 months later the DOE changed their policy and dropped the test phase at WIPP. The NMED issued the revised first draft Permit on November 13, 1998 based on the public comments it received. The question was asked, "Why did the NMED incorporated one comment and not another?" The NMED's criteria were the compliance of the comments with the regulations and if the comments were consistent with the policy of the NMED. Except for what is found in the fact sheets and the Permit itself, the NMED's comment policy for the WIPP RCRA Permit is unwritten. When the final Permit is issued, the NMED will respond to all comments. Most changes to the Permit were made as a result of comments by the Applicants because the DOE made the most comments. The May 1998 draft Permit had several pages discussing the ground control program at WIPP. Most of the ground control program was stricken from the second draft. This ground control program revision was made in response to a comment received. The authority of the Mining Safety and Health Administration (MSHA) at WIPP is not related to RCRA. MSHA's regulatory authority will not prevent roof falls at WIPP. The final Permit will be issued to a defensible legal, technical and regulatory standard. In the first draft permit, there was language in II.C.3 referring to a treatment standard that was deleted in the second draft. That language was originally included because there was language in the Application which stated that waste would either be treated to standards for land disposal or would be covered by a No Migration Exemption. However, Congress amended the Land Withdrawal Act in 1996 and exempted WIPP from treatment standards. The intent of changing IV.B.2.b language from "in a manner identical to requirements of the WAP" to "in accordance with the WAP" is to make it consistent with the Application where all the waste is described as characterized in accordance with the WAP. There is a problem with the word "identical." It is a more difficult word in which to ensure compliance. NMED's suggested language, "in accordance with," is not more vague than "identical to." Once a drum of waste is placed underground at WIPP, it is considered disposed of. The regulations do not address moving or removing a drum after that. The NMED does not see the TA-55-43 waste stream as an enforcement issue. The NMED does not see the TA-55-43 waste stream as part of the Permit process. It is highly unlikely that the TA-55-43 waste is characterized to what the final WAP will be since final WAP has not been issued. If the DOE intends to ship waste before a Permit is issued, the accuracy and completeness of the DOE's Application is in question. There is no evidence in their Comments or on the record reflecting their intent to ship the TA-55-43 waste to WIPP without a permit. The remote-handled (RH) waste bay is not authorized for RCRA activities. Any use of this bay would require a Permit modification. It is NMED's intent, through its permitting process, that the WWIS be required to provide complete and accurate data on each waste drum shipped to WIPP. The NMED has concerns that the NMED will not have access to the WWIS. The NMED's access to the WWIS will also allow access to the public, just as with all of the NMED's records. However, access to the WWIS will not be like typical public access to written documents. The NMED has not considered procedures for public access to the WWIS. The WWIS will reside in an individual computer. The only access will be through that computer. The Land Withdrawal Act prohibits non-defense wastes at WIPP. The Applicants, in their Application, made statements supporting the non-defense waste prohibition. There are no prohibitions in the draft Permit modules for non-defense waste. [The TA-55-43 waste was generated from the production of plutonium battery packs for NASA's Cassini mission - a non-defense space mission producing non-defense waste.] Westinghouse may be under new ownership soon. Westinghouse has notified the NMED of the intent of Columbia Broadcasting System (CBS) to sell WID. The NMED has not received a final notice of transfer. There would probably have to be a Permit Modification on the new ownership. The NMED would probably want the same disclosure information as before. A letter from Keith Klein, the acting manager of the Carlsbad Area Office, to Chris Wentz, dated March 12, 1999 was introduced. The letter states that the DOE will ship the first non-mixed waste from LANL to WIPP by March 26, 1999 and will ship 1 truckload to WIPP every week for the next 16 weeks. Mr. Zappe had never seen the March 12, 1999 letter before. He said it was inconsistent with George Dial's 1994 letter stating that the DOE had no plans to ship waste to WIPP without a Permit. Mr. Zappe was asked if, considering Westinghouse's record of over 300 environmental violations, there was any limit to how bad an applicant could be before they were denied a Permit. There are provisions in the Hazardous Waste Act to deny the Permit if there is a history of willful disregard of environmental laws. However, the NMED has not developed any formal procedure to use in evaluating whether an Applicant should be denied a Permit under these provisions. If the Permit is issued and WID is sold there would have to be a Class 1 modification. A Class 1 modification requires prior agency approval and public notification. There are no provisions providing the public with the opportunity to comment on the modification, or for a hearing. A question was asked regarding how the agencies complied with the Environmental Justice requirements. The DOE and the EPA are federal agencies and receive federal funds. As such, these federal agencies are required to follow the President's Environmental Justice Executive Order No. 23898, dated February 11, 1994. [The Executive Order requires each federal agency to "make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations in the United StatesS."] The NMED was asked what provisions it has made to follow this Executive Order with respect to regulating the DOE. The DOE objected to the question. Mr. Zappe stated that he did not know what driver would be in the Permit to include this issue. The Hearing Officer sustained the objection. As a result, Mr. Zappe did not answer the environmental justice question. [It is EPA's policy to follow the principles of environmental justice when regulating under RCRA.] A bar-coding system is used to keep track of waste containers. Each drum
has a barcode, which is recorded in the WWIS. The barcode is checked after
the TRUPACT-II is opened at WIPP. There are no requirements to post
barcodes outside of each room underground. The WWIS contains a record of
where each drum of waste has been emplaced. [The DOE proposes to locate
the WWIS database on a single computer, thus limiting access to these
location records.] Information concerning the panel, room, column number
and column height are available on the WWIS.
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