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Letter to New Mexico Environment Department, RE: Agency-Initiated WIPP Permit Modification

January 30, 2004

Steve Zappe
New Mexico Environment Department
2905 Rodeo Park Drive, Building 1
Santa Fe, NM 87505

RE: Agency-Initiated WIPP Permit Modification

Dear Steve,

Southwest Research and Information Center (SRIC) has long been concerned about the possibility of the Department of Energy (DOE) bringing waste to WIPP that is prohibited by law and by the WIPP permit. Thus, SRIC strongly supports the pending agency-initiated permit modification and urges NMED to incorporate it into the permit. SRIC also suggests that clarifying language be added to the modification.

WIPP is not designed to accommodate, nor is it approved under federal law (the WIPP Land Withdrawal Act of 1992, as amended) for, most of the Department of Energy (DOE) existing or future nuclear waste. The WIPP Act specifies that the land and the facility must be used exclusively for transuranic (TRU) waste from nuclear weapons production - "generated by atomic energy defense activities." Public Law 102-579, Section 2(19). Thus, WIPP cannot be used for low-level waste storage or disposal or high-level waste storage or disposal or commercial waste storage or disposal.

To emphasize the exclusive nature of the facility, the WIPP Act specifically bans high-level waste: "The Secretary [of Energy] shall not transport high-level radioactive waste or spent nuclear fuel to WIPP or emplace of dispose of such waste or fuel at WIPP." Section 12.

The WIPP Act further limit the types and amount of waste, including limits on the radioactivity of TRU waste and volume limits on the capacity of WIPP. Section 7.

The WIPP Act also specifically protects the State of New Mexico's legal authority over WIPP. Section 9(a)(2)(C), Section 9(d), Section 14(a), Section 14(b).

During the five-year permitting process that resulted in NMED issuing its WIPP permit on October 27, 1999, DOE and NMED relied upon the "Transuranic Waste Baseline Inventory Report" (TWBIR) of December 1995 and June 1996 to describe all of the waste that would be coming to WIPP. The waste characterization procedures and other requirements of the permit were based on the types and characteristics of the wastes included in that inventory. A different inventory could have resulted in different waste characterization requirements or in additional wastes being prohibited, along with those materials already prohibited in the permit. Module II.C.3.

On pages 3 and 4 of the Fact Sheet for this agency-initiated permit modification issued on November 26, 2003, NMED lists various actions and events that indicate that DOE intends to dispose of waste at WIPP that has not included in the TWBIR. Since the issuance of that Fact Sheet, DOE has taken an additional action that further supports the need for the modification.

On January 16, 2004, DOE noticed in the Federal Register the availability of the West Valley Demonstration Project Final Waste Management Environmental Impact Statement. Attachment 1. That notice states that the Preferred Alternative A is to "ship TRU waste to the Waste Isolation Pilot Plant (WIPP) in New Mexico." Alternative B is to ship TRU waste "for interim storage at one of five DOE sites: the Hanford, Site in Washington; the Idaho National Engineering and Environmental Laboratory (INEEL); the Oak Ridge National Laboratory (ORNL) in Tennessee; the Savannah River Site (SRS) in South Carolina; or WIPP. TRU wastes would subsequently be shipped to WIPP for disposal or interim storage at WIPP until disposal could be arranged." 69 Federal Register 2584. All West Valley waste is commercial, non-defense and is thereby excluded from WIPP. SRIC's comments of January 23 in opposition to those alternatives is Attachment 2.

Since DOE has now indicated that it would like to bring waste to WIPP that was not included in the TWBIR, the NMED must take action. The proposed permit modification would limit waste to that included in the TWBIR. Any exceptions to that requirement must be treated as a major permit modification that includes a public hearing, if requested.

The agency-initiated permit modification is prudent to protect public health and the environment and is consistent with NMED's authority under the Hazardous Waste Act. The modification also provides notice to the DOE that it should not contemplate bringing wastes to WIPP that are not included as the WIPP inventory in the TWBIR, including high-level waste that it wants to "reclassify" as well as commercial waste.

As the NMED Fact Sheet states, one purpose of the TWBIR, especially Revision 2, was to comply with Section 7(b)(6) of the WIPP Act, as enacted in 1992. Fact Sheet at 2. Thus, the TWBIR, Rev. 2 mentions sites and waste streams that are "not included in the WIPP inventory." Volume 1 at 5-1. See also especially Section 5.2 "Waste Streams Excluded from WIPP," and Table 5.2. The fact that sites that are prohibited from sending waste to WIPP (such as West Valley, New York) or waste streams that are prohibited at WIPP (such as Hanford tank wastes), are mentioned in the TWBIR should not provide any basis for those sites or waste streams to be allowed at WIPP. The permit modification should clearly include only those waste streams detailed in the TWBIR as being in the WIPP inventory.

Thus, SRIC suggests clarifying language for Module II.C.3.i as follows:

II.C.3.i. Documented waste inventory - wastes that are not directly traceable to waste streams included in the WIPP inventory in the "Transuranic Waste Baseline Inventory Report (Revision 2)", DOE/CAO-95-1121, December 1995, are not acceptable at WIPP unless specifically approved and listed in Table II.C.3.i below.

SRIC's suggested additional, clarifying language are the five words underlined. SRIC suggests that the same five words of clarifying language also be incorporated into Attachment B-1c, Page B-6 of 57, line 32.

If DOE attempts to bring waste to WIPP not included in the WIPP inventory in the TWBIR, SRIC urges NMED to revoke or suspend the WIPP permit, as allowed by state law. Section 74-4-4.2.D. NMSA 1978.

Therefore, SRIC supports the agency-initiated permit modification with the additional clarifying language and urges that it be incorporated into the WIPP permit.

Sincerely,

Don Hancock

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