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WIPP: SRIC goes to the Supreme Court

Despite years of promises to not open the Waste Isolation Pilot Plant (WIPP), the world's first underground nuclear waste repository, until New Mexico issued the operating permit, the U.S. Department of Energy (DOE) began shipping waste to WIPP on March 26, 1999. During the following eight months, 44 shipments arrived at WIPP, bringing about 342 cubic meters of transuranic (TRU) waste. DOE said that all of the waste was non-mixed, meaning that it had no hazardous chemicals. DOE has maintained that at least 60 percent of the 168,500 cubic meters of contact-handled TRU waste destined for WIPP is mixed, radioactive and chemical waste.

When the State permit became effective on November 26, 1999 it included a provision (Condition IV.B.2.b) that stated:

Specific prohibition -- After this permit becomes effective, (1) the Permittees shall not dispose non-mixed TRU waste in any underground HWDU [Hazardous Waste Disposal Unit] unless such waste is characterized in accordance with the requirements of the WAP [Waste Analysis Plan] specified in Permit Condition II.C.1, and 2) The permittees shall not dispose TRU mixed waste in any underground HWDU if the underground HWDU contains non-mixed TRU waste not characterized in accordance with the requirements of the WAP.

Those words indicate that, first, all waste -- mixed and non-mixed -- had to be characterized (examined) to meet the permit's requirements. DOE had agreed in its permit application to handle all waste as if it were mixed. The second phrase says that because non-mixed waste not characterized according to the permit was emplaced in Panel 1 before the permit was issued that no mixed waste could be emplaced in that Panel.

While SRIC and other groups involved in the permit hearing agreed with that condition, DOE did not, as it wanted to bring mixed waste to WIPP and emplace it in Panel 1, rather than using Panel 2 for such waste. In November 1999, DOE filed suit in federal and state courts challenging that and other provisions of the permit. As part of the settlement of that suit, the New Mexico Environment Department (NMED) allowed DOE to submit a modification to the condition to allow mixed waste to be disposed in Panel 1.

On April 25, 2000, NMED approved the modification, without first providing any public notice or hearing. Because SRIC had also challenged the permit, we were aware of the settlement and objected to the modification. On May 1, 2000, SRIC and two individuals filed suit in the New Mexico Court of Appeals, asking that the modification be struck down because there was no public hearing.

The Court considered extensive briefing and held oral argument twice, a virtually unprecedented practice. On June 5, 2002, the Court of Appeals finally issued its ruling, holding 2 to 1 against SRIC. The majority stated that while SRIC's interpretation of the permit language was correct, NMED had made a "drafting error" so changing the condition was a "minor" modification that did not require a public hearing. Judge James Wechsler, in dissent, strongly disagreed with the majority, finding that the change was "major" and required a public hearing, and so the modification was invalid.

SRIC asked the Supreme Court to accept the case, which it agreed to do on July 26. Briefs will likely be filed in the fall.

WIPP: The Dangerous "Acceleration" Scheme

Since the WIPP permit was issued in October 1999, DOE has asked for hundreds of changes. Most of the modifications are for things that DOE included in its permit application. A few are to change conditions that NMED imposed. Several of the major ones are because DOE wants to expand WIPP and its mission.

Since mid-2000, virtually none of those major modifications has been approved, and they have been strongly opposed by SRIC and others. Some have been denied by NMED. Others were withdrawn by DOE. Many of those that were denied or withdrawn were resubmitted by DOE on June 28 as part of eight major modifications. Another modification is scheduled for a public hearing that will begin on August 26.

Rather than having public comment and hearings on that barrage of modifications concentrated in July and August, SRIC asked DOE and NMED to modify the schedule to either delay the public hearing or extend the public comment period until significantly after the hearing. Both agencies refused the requests. However, because of a subsequent request by the New Mexico Attorney General's office, it appears that the comment period on the June 28 modifications will be extended until at least the end of September.

Yet another modification (centralized confirmation facility or CCF) would allow waste drums to be opened at WIPP along with other currently prohibited activities. (See Voices, Summer 2001, page 2; Winter 2001, page 3.) On June 19, NMED issued a 33-page Notice of Deficiency (NOD) on that modification request, even though SRIC and others asked for NMED to deny the request. DOE asked for and received a 180-day extension on the timeframe to respond to the NOD.

The CCF modification, and any of those filed on June 28 that are determined to be "class 3" modifications, will ultimately be subject to additional public comment and public hearings. So decisions about those modifications will be made by a new NMED Secretary, appointed by the governor who will be elected in November. For the class 3 modification that goes to hearing on August 26 and on modifications that are deemed to be "class 2," this administration appears determined to make final decisions before the end of the year.

DOE's "Slush Fund"

Another part of the "acceleration" scheme comes from DOE in Washington, D.C. which wants Congress to give it wide leeway to come up with ways to save money and declare sites cleaned up more quickly than current schedules. An $800 million "Expedited Cleanup Fund" -- mostly from money taken from sites' current funding -- was included in President Bush's budget submitted to Congress in February.

The Alliance for Nuclear Accountability, a network of 32 groups including SRIC that work in the shadows of DOE facilities, has strongly opposed that "slush fund." While the House appears favorably disposed to the Fund, the Senate Appropriations Committee unanimously rejected it. In its July 24 report, the Committee strongly criticized the fund for its "general unfairness and inequity." The Committee also criticized DOE for entering into agreements with states: "It is completely unacceptable for the Department to enter into binding legal agreements with States when it is clear there is no money in the budget request to fully fund the final agreements." The Committee also stated that has "no confidence whatsoever that the Department is planning to fulfill each individual cleanup commitment" and found that lack of detailed information about the tasks that would be performed with Fund money to be "as shocking as it is arrogant." Congress should take final action on the Fund by early October.

Always looking for more money, even though it performs poorly with existing funds (see Voices, spring 2002, page 11), WIPP is seeking $50 million from the Fund. WIPP claims, though it has not provided the detailed basis that SRIC has requested, that if it gets that additional funding for the next 14 years, it would save approximately $8 billion over the following 20 years, as it would speed up shipments to WIPP.

The WIPP "plan" not only assumes that the CCF and other pending modifications are approved, but that the Savannah River Plant, South Carolina and Hanford, Washington would receive wastes from more than a dozen sites and then prepare the waste for shipments to WIPP. That approach not been approved by state regulators at those facilities, nor has it met other legal requirements.

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