One method of handling
containerized heterogenous waste
begins with sorting the contents by material type. In other
words, if the container holds clothing, rags, wood, plastic,
metal, and paper, the contents are removed and placed in
various piles: clothing, rags, and paper in one pile, wood
in a second pile, plastic in a third pile, and metal in a
fourth pile. The next container is then opened and
the procedure repeated, adding to the piles of material from the
first
container. The process is repeated until all containers have
been
emptied and the contents sorted.
Characterizing Heterogenous Waste: Methods and Recommendations at
82 (EPA 1992) & Dr. J.
S. Hirschhorn, p. 1852, ll. 3 - p. 1853, l. 10.
The DOE generator sites will not separate the wastes, but instead
will primarily rely on
acceptable knowledge, which is the knowledge of the processes
involved
in creating the waste,
to characterize debris waste. E. K. Hunter, p. 436, l. 18 - p.
437, l. 6 & p. 459, l. 25 - p. 460, l. 3.
Acceptable knowledge is appropriate to characterize waste when
there is
sufficient
knowledge to characterize the waste. E. K. Hunter, p. 459, ll. 5
- 12; 62 Fed. Reg. at 62083,
(Nov. 20, 1997).
Acceptable knowledge was originally intended for those large,
basic
industries, such as
steel making or chemical manufacturing, that over a long period
of time produced waste streams
for which there was an enormous amount of information. The WIPP
system is very different in
terms of the quality of information available. The applicants
acceptable knowledge is not
comprehensive enough, accurate enough, or reliable enough to make
critical decisions regarding
waste characterization. Dr. J. S. Hirschhorn, p. 1856, ll. 4 -
18 & p. 1878, l. 13 - p. 1880, l. 24.
The waste to be disposed at WIPP was generated as long ago as the
1970's from a variety
of different processes that have varied over time at more than
twenty facilities in approximately ten
different states. There are more than 500 waste streams from
all of the different sites, and
additional waste streams may be generated in the future. E. K.
Hunter, p. 460, l. 22 - p. 462, l. 2
& p. 539, ll. 16 - 24.
Acceptable knowledge is recommended to eliminate unnecessary
or redundant waste
testing. EPA guidance does not prohibit testing of mixed waste;
it only recommends against
unnecessary testing because each testing event may involve an
incremental radiation exposure.
Joint NRC/EPA Guidance on Testing Requirements for Mixed
Radioactive and Hazardous Waste
(Applicants Technical Material No. 8) at 62081; Dr. J. S.
Hirschhorn, p. 1804, l. 25 - p. 1807, l.
22, p. 1809, l. 2 - p. 1810, l. 10.
Although the permit applicants contend that their acceptable
knowledge is adequate, they
agree that they do not have all of the information that is
available in the DOE complex. E. K.
Hunter, p. 462, l. 13 - p. 463, l. 9.
The difficulties the DOE generator sites have accurately
characterizing the wastes were
poignantly demonstrated by a radiography videotape of waste
characterization activities at the Los
Alamos National Laboratory ( LANL ), which was shown by the
applicants at the hearing.
Applicants Exhibit 36; E. K. Hunter, p. 442, l. 21 - p. 443, l.
3.
Drum S816697, an actual waste drum from LANL, was shown. The
video showed a heterogeneous debris waste, which included tools,
containers, clothing, and other assorted items. It
was not a homogeneous solidified waste. Applicants Exhibit 36;
E. K. Hunter, p. 444, ll. 18 -21
& p. 471, l. 20 - p. 472, l. 2.
Nevertheless, the LANL Transuranic Waste Characterization
Sampling Plan, dated April 8,
1997, and the current edition dated September 1998 identified
drum S816697 as containing
solidified inorganic process solids including process leached
solids,
ash, filter cakes, salts, metal
oxides, fines, or evaporator bottoms stabilized in Portland or
gypsum
cement. Although the
documents identified the drum as containing homogeneous solid
waste, it did not contain that
waste, but rather contained heterogeneous debris waste. E. K.
Hunter, p. 472, ll. 12 - 17 & p.
473, l. 6 - p. 474, l. 8 & p. 527, l. 14 - p. 431, l. 23 & p.
689, ll. 14 20.
Radiolysis
Radiolysis is the decomposition of a substance as a result of
radiation. Organics may be
released from waste or waste containers as a result of
radiolysis. E. K. Hunter, p. 491, ll. 12 - 18.
Alpha particles from the decay of transuranic waste can destroy
the molecular structure of
plastic material and create new substances. B. Franke, p. 1911,
l. 8 - 23.
Radiolysis continues as long as radioactive decay continues.
Plutonium 239 has a half-life
of 24,000 years. As long as plastic is present and radioactive
decay is occurring, the plastic will
undergo radiolysis, and produce degradation products, such as
benzene and hydrogen chloride.
B. Franke, p. 1911, l. 24 - p. 1912, l. 22 & p. 1966, l.
16.
Benzene is a volatile organic compound ( VOC ) that is produced
by radiolysis of waste
intended to be disposed of at WIPP. B. Franke, p. 1917, l. 22 -
p. 1918, l. 3.
Benzene is a carcinogen. B. Franke, p. 1957, ll. 10 - 16.
The benzene produced by radiolysis will be in addition to the
benzene that is otherwise
contained in the waste. B. Franke, p. 1968, l. 6 - p. 1969, l.
5.
The degradation products will accumulate within closed rigid
containers. B. Franke, p.
1912, ll. 6 - 22.
Diffusion across rigid containers would not be expected. B.
Franke, p. 1926, ll. 6 - 16.
A DOE study Generation of Volatile Organic Compounds by Alpha
Particle Degradation
of WIPP Plastic and Rubber Material states that the predominant
gaseous products from
radiolysis are hydrogen, carbon oxides, and hydrogen chloride
(from chlorine containing organics).
B. Franke, p. 1916, ll. 1 - 16.
Radiolysis will produce corrosive acids. For example, radiolysis
of plastic materials that
contain chloride, such as polyvinyl chloride, will release a gas,
hydrogen chloride. Hydrogen
chloride is a hygroscopic substance, which means it attracts
water and water mist. When hydrogen
chloride reacts with water, hydrochloric acid is formed. B.
Franke, p. 1915, l. 10 - p. 1917, l. 21
& p. 1927, l. 15 - p. 1928, l. 4.
Hydrogen chloride would only be expected to diffuse through a
waste drum vent if it
remained a gas, e.g. it did not react with water and form
hydrochloric acid, and if there was
nothing preventing equilibrium from taking place, e.g. sealed,
rigid inner containers. B. Franke, p.
1927, ll. 6 - p. 1928, l. 4.
The scientific literature contains data regarding the generation
of hydrogen chloride gas as
a result of WIPP waste being subject to radiolysis. B. Franke,
p. 1928, ll. 5 - 21.
Visual examination of wastes intended to be disposed of at WIPP
has indicated that
radiolysis of plastic material has occurred within sealed, rigid
inner containers. B. Franke, p. 1945,
l. 15 - p. 1946, l. 12.
A technical advisor for the NMED concluded that hydrogen chloride
could be generated.
It also concluded, however, that hydrogen chloride would not be a
problem because enough would
not be generated to cause any of the waste to have a pH less than
two. The latter conclusion
assumes that the hydrogen chloride would not have reacted with
water to form hydrochloric acid
and that sealed, rigid inner containers did not prevent
equilibrium from taking place. The technical
advisor for NMED did not have any data to support the theory that
all of the hydrogen chloride
would be vented as a gas. B. Franke, p. 1929, l. 4 - p. 1935, l.
5.
The draft permit recognizes that radiolysis occurs and requires
the applicants to consider
radiolysis, but it does not include sufficient provisions
regarding radiolysis. B. Franke, p. 1951, l.
12 - p. 1952, l. 23.
Radiolysis is not adequately accounted for in the draft permit
because there is not
monitoring of some of the degradation products, such as hydrogen
chloride, and the monitoring
method for other degradation products, such as benzene, captures
only part of what is generated.
B. Franke, p. 1913, l. 15 - 25.
The applicants waste characterization is deficient because it
does not monitor for
substances such as hydrogen chloride and it does not account for
the gases that may be corrosive,
reactive or ignitable and are contained within sealed, inner
rigid containers. B. Franke, p. 1919, l.
8 - p. 1920, l. 22.
Chemical Incompatibility
The draft permit provides under a heading entitled Chemical
Incompatibility that Wastes
incompatible with backfill, seal and panel closure materials,
container and packaging materials,
shipping container materials or other wastes are not acceptable
at WIPP. Revised Draft Permit
II.C.3.d; Dr. J. S. Hirschhorn, p. 1771, l. 15 - p. 1772, l. 1.
The prohibition against chemically incompatible wastes is
important to protect, among
other things, the integrity of the waste drums. Dr. J. S.
Hirschhorn, p. 1777, ll. 6 - 24.
The applicants Exhibit No. 37, which is a videotape of a waste
drum from LANL, showed
a widespread pitting form of corrosion within the inside on the
bottom and sides of the drum.
This is evidence that the waste is incompatible with its
container. It is also evidence that there was
corrosion of the steel drum. The pitting may have been caused by
a liquid waste that has since
evaporated. Once corrosion starts it can continue. Dr. J. S.
Hirschhorn, p. 1772, l. 2 - p. 1773, l.
25 & p. 1775, l. 4 - p. 1776, l. 18 & p. 1816, ll. 9 - 16 & p.
1867, l. 21 - p. 1868, l. 22.
Waste that is not corrosive, pursuant to the regulatory
definition, may nevertheless be
chemically incompatible with its shipping container. Dr. J. S.
Hirschhorn, p. 1874, l. 8 - p. 1876,
l. 8.
The waste will be shipped in steel drums, and a visual
examination by the naked eye of
nine drums from LANL revealed evidence of rust in four of the
drums, including one drum where
the entire interior of the drum lid had a light coat of rust. E.
K.
Hunter, p. 475, ll. 2 - 10 & p.
481, ll. 3 - 6 & p. 481, l. 25 - p. 482, l. 5; Dr. J. S.
Hirschhorn, p. 1776, ll. 3 - 18.
Rust is an indication of corrosion in the everyday sense of the
word. E. K. Hunter, p.
482, l. 20 - p. 483, l. 13.
Chemical reactions can cause rust, and rising vapors within a
drum can
cause corrosion on
a drum lid. E. K. Hunter, p. 483, ll. 14 -16 & p. 483, l. 20 -
p. 484, l. 2.
Hydrogen chloride generated by the irradiation of plastic
(polyvinyl chloride) can cause
rust. Dr. J. S. Hirschhorn, p. 1833, ll. 12 - 15.
As little as 1% water or 4.4 pints in a 55-gallon drum, can
create a fair amount of
hydrochloric acid and cause corrosion and chemical
incompatibility. Dr. J. S. Hirschhorn, p.
1881, l. 24 - p. 1882, l. 6 & p. 1963, ll. 11 - 23.
The rust was evidence that the waste was incompatible with the
drum in
which it was
contained. Dr. J. S. Hirschhorn, p. 1776, l. 19 - p. 1777, l. 5.
For a heterogeneous waste, such as the debris waste stream,
which cannot be sampled
representatively, the only way to give meaning to the prohibition
against incompatible waste is to
require that every drum be opened and inspected for evidence of
corrosion
or chemical
incompatibility. Dr. J. S. Hirschhorn, p. 1777, l. 25 - p. 1779,
l. 9 & p. 1797, l. 19 - p. 1798, l.
24
If the visual inspection showed evidence of corrosion or chemical
incompatibility, such as
rust or pitting, then the waste should be prohibited from
disposal at WIPP.
Dr. J. S. Hirschhorn,
p. 1798 l. 25 - p. 1799, l. 7.
Corrosivity
The regulatory definition of corrosivity has two basic parts. A
waste is hazardous because
of its corrosivity if it is aqueous and has a very low or very
high pH.
(EPA has indicated that
waste is aqueous if it has 20% water.) A waste is also hazardous
if it is
a liquid and corrodes steel
at a certain rate. The regulatory definition does not apply to
solids.
Dr. J. S. Hirschhorn, p. 1779,
l. 10 - p. 1780, l. 25 & p. 1815, l. 6 - 13 & p. 1819, ll. 1 -
7.
Nevertheless, solids can be corrosive, and the U. S.
Environmental Protection Agency
( EPA ) developed a procedure to test solids for corrosivity.
Two federal agencies, the
Department of Transportation ( DOT ) and the Occupational Health
and Safety Administration
( OSHA ) also recognize that solids can be corrosive, and at
least four states have defined
corrosivity within their hazardous waste management programs to
apply to solids. Wastes from
two of these states, California and Washington, will be shipped
to WIPP.
A solid corrosive waste
may be given a different waste code by a state than that used by
EPA
because EPA does not apply
the corrosivity characteristic to wastes that are solids. Dr. J.
S. Hirschhorn, p. 1781, l. 1 - p.
1783, l. 2 & p. 1826, l. 6 - p. 1831, l. 4 & p. 1862, l. 2 - p.
1863, l. 1.
Waste that is a solid and is characterized as hazardous because
of its corrosivity, pursuant
to the regulatory definition of a state from which waste destined
for WIPP will originate, does not
become any less hazardous or corrosive simply because it is
shipped to New Mexico, whose
regulatory definition of corrosivity does not apply to solids.
Dr. J. S. Hirschhorn, p. 1783, ll. 3 -
18 & p. 1784, ll. 1 - 14 & p. 1786, l. 4 - p. 1787, l. 8.
Some rags have been shown to have a very low pH, and rags and
other cellulosic material
in waste drums destined for disposal at WIPP should be tested for
corrosivity. Dr. J. S.
Hirschhorn, p. 1784, l. 15 - p. 1786, l. 1.
If the visual inspection revealed rags or other cellulosic
material then those materials should
be tested for corrosivity by a test appropriate to test solids
for corrosivity. Dr. J. S. Hirschhorn, p.
1799 ll. 8 - 17.
Reactivity
The regulatory definition of reactivity in part provides that a
waste is hazardous if when it
is mixed with water it generates toxic gases that may pose a
danger. Dr. J. S. Hirschhorn, p. 1790,
l. 11 - p. 1791, l. 18.
Headspace gas sampling indicates that waste drums destined for
disposal at WIPP contain
toxic gases that can pose a danger if the gases are displaced by
water entering the drums. Under
certain circumstances, water can displace the toxic gas in the
waste drum and force it out into the
atmosphere. Dr. J. S. Hirschhorn, p. 1791, l. 19 - p. 1793, l.
5 & p. 1843, l. 5 - p. 1844, l. 16.
Headspace gas sampling should be conducted on all waste drums
intended to be disposed
of at WIPP, and if there is evidence of the presence of a toxic
gas, then an appropriate test should
be developed and implemented to determine if the waste is
reactive. Dr. J. S. Hirschhorn, p.
1793, ll. 6 - 21.
Toxicity
The toxicity characteristic is determined by the use of a test
known as the Toxicity
Characteristic Leaching Procedure (TCLP). The test determines
the concentrations of hazardous
constituents, including organics such as benzene and vinyl
chloride, that leach out of a waste. E.
K. Hunter, p. 487, l. 14 - p. 488, l. 16.
Benzene and vinyl chloride and other organics have been detected
in waste that is proposed
to be disposed of at WIPP. E. K. Hunter, p. 488, l. 17 - p. 489,
l. 25 & Revision No. 6, WIPP
RCRA Part B Permit Application, p. C-19, ll. 14-30 & Table C-3.
Nevertheless, the applicants do not intend to test for benzene as
part of the TCLP. E. K.
Hunter, p. 491, ll. 3 - 5.
Headspace Gas Analysis
The DOE generator sites attempt to confirm their acceptable
knowledge for heterogenous debris wastes primarily by
headspace gas analysis. E. K. Hunter, p. 438, l. 21 - p.
439, l. 5.
In a headspace gas analysis, a sample of the gas in the void
space above the waste in a
waste drum is collected and chemically analyzed. E. K. Hunter, p.
439, ll. 6 - 19 & p. 464, ll. 11.
Headspace gas analysis will not measure hazardous constituents
that are not in the gaseous
state. E. K. Hunter, p. 609, ll. 8 - l. 16.
If the headspace gas analysis reveals the presence of a
constituent that the acceptable
knowledge indicates should not be present, then either generator
has to explain the presence of
the constituent or the hazardous waste code associated with the
constituent has to be applied. E.
K. Hunter, p. 436, l. 18 - p. 437, l. 6
The headspace gas sampling assumes that there is equilibrium
between a gas in the
headspace of a drum and the gas in the interior of the drum. B.
Franke, p. 1914, l. 1 - 10.
The headspace gas analysis will not measure constituents within
sealed plastic bags within a
waste drum unless the gas escapes into the headspace. E. K.
Hunter, p. 464, l. 16 - p. 465, l. 13.
A DOE study concluded that about 90% equilibrium was reached
after approximately 245
days between the gas contained within approximately five layers
of plastic and that in the
headspace. The study did not examine diffusion across rigid
containers. The study also did not
examine diffusion of hydrogen chloride gas, and different gases
diffuse at different rates. B.
Franke, p. 1914, l. 11 - p. 1915, l. 9 & p. 1926, ll. 17 - 25;
Dr. J. S. Hirschhorn, p. 1880, l. 25
- p. 1881, l. 4.
Although gases may diffuse across plastic bags so that there is
equilibrium between the
gases inside and outside of the bags, there could still be gases
within the bags. Dr. J. S.
Hirschhorn, p. 1847, ll. 5 - 9 & p. 1886, ll. 7 - 18.
The headspace gas analysis also will not measure constituents
within sealed, rigid
containers such as plastic bottles. E. K. Hunter, p. 465, l. 14
- p. 466, l. 4.
The applicants do not otherwise take into account that sealed,
rigid containers may contain
toxic gases. Dr. J. S. Hirschhorn, p. 1794, ll. 13 - 20 & p.
1887, ll. 3 9.
Although the headspace gas samples will be analyzed for benzene,
the samples will not
capture the gas within rigid inner layers of confinement, such as
polymer bottles. B. Franke, p.
1918, l. 4 - p. 1919, l. 7.
Headspace gas sampling has revealed that a lot of benzene is
being produced from the
radiolysis of polyvinyl chloride or other plastics in the waste
intended to be disposed of at WIPP.
B. Franke, p. 1939, l. 21 - p. 1942, l. 6.
The waste drums have passive vents, which can be blocked if waste
in the drum is
physically against the vent opening. Because of the possibility
of the presence of sealed inner
containers and blocked passive vents, the headspace gas sampling
may not sample all gases
present, and an analysis showing the absence of toxic gases may
be a false negative. The presence
of a passive vent on a waste drum does not necessarily mean that
the vent is effectively allowing
gases inside the drum to be released from the drum. Dr. J. S.
Hirschhorn, p. 1793, ll. 6 - p.
1795, ll. 20 & p. 1884, l. 1 - p. 1885, l. 12.
The permit application submitted by the applicants provided that
100% of the waste drums
would undergo headspace gas analysis, and the applicants admit
that it is feasible to sample and
analyze the headspace gas of all of the waste drums. E. K.
Hunter, p. 466, ll. 7 - 12 & p. 467, ll.
6 - 8.
Although the applicants have since proposed to do headspace gas
analysis on less than
100% of the waste drums, they did not submit a revised permit
application to that effect and notice
was not given to the public of the proposed change. E. K.
Hunter, p. 466, l. 16 - p. 467, l. 1 & p.
718, ll. 21 - 24.
The permit should expand the list of constituents to be analyzed
as a part of headspace gas
sampling to include hydrogen chloride. It should also provide
for the sampling or removal of
sealed, rigid inner containers that are in the waste drums
intended to be disposed of at WIPP. B.
Franke, p. 1954, ll. 1 - 21.
Headspace gas should be sampled and analyzed for all of the
constituents on the toxicity
characteristic leaching procedure ( TCLP ) list. If the testing
revealed the presence of a toxic
constituent, then an appropriate test for reactivity should be
implemented.
Alternatively, if the
testing revealed the presence of a toxic constituent, then the
waste can be presumed to be a
reactive hazardous waste. Dr. J. S. Hirschhorn, p. 1800, ll. 5 -
24.
One way to address the problem associated with the accumulation
of toxic gases with
sealed, rigid inner containers is to sample the air within the
containers. Another way is to assume
that the sealed, rigid inner containers hold wastes that are
prohibited from disposal at WIPP. If the
problem is not addressed in that or some other way, then the
waste may not be adequately
characterized and prohibited waste might be disposed of at WIPP.
B. Franke, p. 1946, l. 24 - p.
1947, l. 10 & p. 1949, l. 3 - 18.
Radiography and Visual Inspection
Radiography is a standard x-ray technique where the inside of
a container is examined for
prohibited items. E. K. Hunter, p. 442, ll. 7 - 11.
The DOE waste generator sites also use radiography and
visual inspection to confirm their
acceptable knowledge. E. K. Hunter, p. 463, l. 19 - l. 25 &
p. 686, l.
22 - p. 687, l. 1.
The DOE generator sites must visually inspect or
radiograph every waste drum, i.e., 100%.
E. K. Hunter, p. 442, ll. 1 - 6 & p. 446, ll. 12- 16.
The permit application provided that radiography will be
used on 100% of stored waste
containers, but visual examination of 100% of that waste is
not required. Revision No. 6, WIPP
RCRA Part B permit Application, p. C-10 & E. K. Hunter p.
467, l. 14 - p. 468, l. 8 & p. 715, ll.
3 - 6 & p. 715, ll. 11 - 13.
Although the applicants claim concerns for worker safety is a
reason that visual
examination will not be performed on every waste drum, there
has not been any data collected
regarding worker exposure as a result of visual examination.
E. K. Hunter, p. 474, l. 14 - l. 22.
Closed drums have been routinely opened and various
procedures performed at DOE
facilities throughout the country. So these activities are
technically feasible and practical, and
DOE should be aware of the risks involved. DOE has not
reported that opening drums of waste
and sorting the materials has created an unacceptable risk.
Dr. J. S. Hirschhorn, p. 1801, l. 23 - p.
1808, l. 13 & p. 1856, l. 19 - p. 1857, l. 5.
Radiography is not 100% accurate, and each DOE generator
site will have an annually
calculated miscertification rate. By miscertification
rate is meant the discrepancy between
what is found via radiography and what is found by a visual
inspection of the same waste drum.
For example, the current miscertification rate" for LANL is
11%. Depending on its
miscertification rate, a DOE generator site will be required
to visually
inspect a portion of the
drums to check them against the radiography results. E. K.
Hunter, p. 446, l. 17 - p. 447, l. 2 & p.
474, l. 9 - l. 13 & p. 501, ll. 5 - 10 & p. 502, ll. 15 - 18
& p. 687, ll. 10 - 23 & p. 688, ll. 18 - 23.
The applicants have not established a threshold
miscertification rate, which if exceeded
by a DOE generator site would result in its waste
characterization process being deemed deficient
so that waste from that site will not be accepted at WIPP,
until it takes corrective actions so that the
threshold can be met. E. K. Hunter, p. 539, ll. 2 -
10.
The general two percent "miscertification rate" used in the
Permit Application is based on
work done at Idaho in the early 1990s, not at all related to
the actual characterization requirements
in the revised draft permit. C.M. Walker, p. 2806, l. 22 -
p. 2807, l. 11;
D. Hancock, p. 3584, ll.
10-13.
There is a need for site-specific miscertification rates to
reflect that there are different
processes, acceptable knowledge documentation, and capabilities
at the generator sites. The
miscertification rate should be based on site-specific
performance of the generator site. If a
historical baseline is used, it should be the highest
miscertification rate at any generator site to
provide for a margin of safety. D. Hancock, p. 3584, l. 17 - p.
3585, l. 7.
For about four months from December 1997 through March 1998,
radiography
was not
properly performed on approximately one thousand waste drums
at LANL. The radiography did
not reveal sealed containers greater than four liters that
were found during repackaging operations.
E. K. Hunter, p. 549, l. 18 - p. 551, l. 10 & p. 558, l. 6 -
p. 559, l. 1 & p. 550, l. 23 - p. 552, l. 2
& p. 568, l. 23 - p. 569, l. 15.
Waste drums that have in them sealed containers that are
greater than four liters in volume
are not acceptable for receipt at WIPP. E. K. Hunter, p.
445, ll. 10 - 16 & p. 559, ll. 2 - 10.
Sealed containers greater than four liters in volume could
contain liquid hazardous wastes
that are prohibited from receipt at WIPP. E. K. Hunter, p.
558, l. 14 - l. 22.
Radiography may not be able to determine whether a container
is sealed or not. E. K.
Hunter, p. 468, l. 13 - l. 24 & p. 573, ll. 8 - 11.
Radiography will not necessarily detect the difference
between a sealed container that is
completely filled with liquid and one that is completely
empty, i.e., a full container may appear as
though it was empty because the density gradients or
contrasts will not be present. Dr. J. S.
Hirschhorn, p. 1796, l. 11 - p. 1797, l. 18.
If visual examination or radiography revealed a sealed inner
container, then it should be
tested for the presence of toxic gases. If a toxic gas is
present , then an appropriate test for
reactivity should be implemented. Alternatively, if a toxic
gas is present, then the waste can be
presumed to be a reactive hazardous waste. Dr. J. S.
Hirschhorn, p. 1799, l. 18 - p. 1800, l. 4.
Nonmixed Waste
Section IV.B.2.b. of the Revised Draft Permit states:
Specific Prohibition -- the
PERMITTEES shall not dispose nonmixed TRU waste in any unit
specified in the Module ...
unless such waste is characterized in a manner identical to
the requirements of the Waste Analysis
Plan specified in Permit Condition II.C.1.
DOE has suggested: The Permittees shall not dispose of
nonmixed TRU waste in any
unit specified in the Module once this permit becomes
effective unless such waste is characterized
in a manner that substantially complies with the requirements
of the Waste Analysis Plan as
specified Permit Module II.C.1. (emphasis added). S.O.
Zappe, p. 2457, ll. 1-11.
NMED has stated that a standard of substantial compliance
is vague and unenforceable.
Further, there are elements of the Waste Analysis Plan that
require "full compliance." S.O. Zappe,
p. 2458, ll. 14-19.
In its testimony during the hearing, NMED revised proposed
condition IV.B.2.b: "Specific
Prohibition--The Permittees shall not dispose TRU mixed
waste in any underground hazardous
waste disposal unit if the underground hazardous waste
disposal unit contains nonmixed TRU
waste not characterized in accordance with the requirements
of the Waste Analysis Plan."
(emphasis added). S.O. Zappe, p. 2426, ll. 9-16.
NMED was not able to articulate a clear explanation of the
standard established by the
phrase "in accordance with." S.O. Zappe, p. 2630, l. 9 - p.
2631, l. 7.
This condition is important in order to determine if a
waste drum contains a prohibited
material, even if that material is not a hazardous waste.
Dr. J. S. Hirschhorn, p. 1893, l. 15 - p.
1894, l. 19.
The permit application provides that all transuranic waste,
whether or not it contains
hazardous waste, would be managed as mixed hazardous waste.
For example, the Part B permit
application submitted by DOE identifies the wastes it
intends to manage at WIPP. It specifically
states:
For purposes of
this application, all TRU waste is managed
as though it were mixed.
Part B Permit Application, Revision 7 at A-5, ll.
20-21 & S.O. Zappe, p. 2446, ll. 7-12.
The applicants further stated:
Part B Permit Application, Revision 6, at B-2, ll. 24-26
(emphasis added) & S.O. Zappe, p. 2446,
ll. 14-23.
In related documents, DOE expressly stated that it had no
plans or
intentions of disposing
of any wastes (neither hazardous, radioactive nor mixed) in the
WIPP prior to receipt of a RCRA
Part B Disposal Phase permit. Letter from DOE to NMED dated
February 14, 1994, Pleading
#130 - NMED Exhibit A, Non-Mixed TRU Waste, Attachment 1.
Successive versions of DOE s
disposal decision plan, from April 1994, through May 15, 1997,
showed that a hazardous waste
facility permit would issue before any waste would be disposed
of at WIPP. S.O. Zappe, p. 2574,
l. 1 - p. 2576, l. 23 & Exhibit 4 to Memorandum of SRIC and
CCNS in Support of Their Motion
for Summary Denial of the Permittees Application, February 12,
1999.
The Permit Application contained other citations reflecting
the
applicants' intent to manage
all TRU waste as mixed TRU waste. Pleading Log #130 - NMED
Exhibit A, Non-Mixed TRU
Waste, Attachment 2.
The applicants' decision to dispose of waste in a
proposed underground disposal unit after
the draft permit was issued calls into question the accuracy
and completeness of the application, it
subverts the public comment process, and it is a major
modification of the application. S.O.
Zappe, p. 2453, l. 13 - p. 2454, l. 13.
The draft permit issued by NMED relied on DOE s commitments
that no waste would be
disposed of at WIPP before a final permit was issued. That
commitment was critical and key to all
of the assumptions that went into developing the draft permit.
S.O. Zappe, p. 2455, ll. 6-15.
As NMED Secretary Maggiore advised DOE Secretary
Richardson:
First, DOE has stated
historically that no waste would be shipped to WIPP
until receipt of New Mexico s RCRA permit (letter from
George E. Dials to Judith Espinosa, received February
14, 1994). [Footnote
omitted.]
Furthermore, DOE stated in its
RCRA permit application that all
waste at
WIPP would be handled as mixed waste. Therefore,
implementation of a new policy to dispose of unknown
volumes of radioactive non-mixed
waste prior to the State s permit is a significant deviation
from these previous statements and commitments by DOE.
Second, disposal of
future non-mixed radioactive waste streams at WIPP prior
to receipt of the State s RCRA permit will cause further
delay
in approval of this permit and could serve to undermine the
permit.
. . .
With regard to the
potential to undermine the RCRA permit, there
are regulatory, legal and technical implications if DOE
disposes of non-
mixed radioactive waste without a permit. The permit
application is premised upon the assumption that all
waste would be handled as mixed waste and that no waste
would be disposed at WIPP prior to approval
of the
RCRA permit. DOE s determination to dispose of unknown
amounts of non-mixed radioactive waste without a permit
may constitute a
modification
to its permit application, and will further complicate the
RCRA
permitting
process.
Letter dated October 9, 1998, from NMED to DOE,
attached as Exhibit 6 to Memorandum of
SRIC and CCNS in Support of Their Motion for Summary Denial of
the Permittees Application,
February 12, 1999.
In their testimony, the applicants stated that their intent is
to manage
all TRU waste,
whether it is mixed and nonmixed, the same. R.F. Kehrman, p.
38, l. 3 & p. 217, ll. 1-2.
The
applicants further stated that when the facility is operated,
it will operate under a permit. R.F.
Kehrman, p. 159, ll. 9-10.
The general intent of permit condition IV.B.2.b. is to ensure
that there
is no prohibited or
non-mixed TRU waste that is disposed of in a RCRA-regulated
unit, which has not been
characterized in accordance with the requirements of the
permit Waste Analysis Plan. S.O. Zappe,
p. 2424, ll. 10-15.
If waste is disposed without undergoing the characterization
required by
the Waste
Analysis Plan, it would be prohibited and a violation of the
permit. S.O. Zappe, p. 2425, ll. 19-22.
The proposed condition would ensure that only wastes
characterized in
accordance with
the permit are disposed in RCRA-regulated units. S.O.
Zappe, p. 2426, ll. 17-19.
The provision of the Revised Draft Permit to require
characterization of non-mixed waste "in a
manner identical to" the requirements of the Waste Analysis
Plan ("WAP") is a much clearer and
stronger requirement and more easily enforce than the NMED
revision that waste be characterized
"in accordance with" the WAP. D. Hancock, p. 3558, ll. 4-
7.
The prohibition is necessary to ensure compliance with the
Hazardous
Waste Act and
RCRA, to protect human health and the environment, and to
reflect a critical commitment by the
applicants in their application, which if changed would
seriously raise questions about the accuracy
and completeness of the application. S.O. Zappe, p. 2427,
ll. 6-13.
Once mixed and non-mixed TRU waste is disposed, it is
impossible to
distinguish mixed
from non-mixed waste, it is impossible to determine whether
prohibited wastes have been disposed
with non-mixed waste, and it is impossible to know the amount
of volatile organic compounds in
the waste. It is also impossible to inspect the containers.
S.O. Zappe, p. 2441, l. 22 - p. 2442, l.
3; p. 2444, ll. 4-14; p. 2445, ll. 2-11.
The intent of the prohibition is to ensure that if any non-
mixed TRU
waste is put in a
hazardous waste disposal unit at WIPP, then that hazardous
waste disposal unit cannot be used for
mixed TRU waste. S.O. Zappe, p. 2634, ll. 18-23.
The applicants agree that the State of New Mexico has
authority over any
wastes disposed
in Panel 1. R.F. Kehrman, p. 216, ll. 22-24. (emphasis
added).
The applicants began shipments of waste stream TA-55-43, Lot
No. 1 from
the Los
Alamos National Laboratory ("LANL") to WIPP on March 26,
1999. D. Hancock, p. 3555, ll.
12-20.
The applicants intend to ship wastes to WIPP from LANL, from
the Idaho
National
Engineering Laboratory ("INEEL"), and from the Rocky Flats
Plant before a permit is issued. D.
Hancock, p. 3557, ll. 6-17.
As of June 23, 1999, DOE/WID have received 11 shipments --
66 standard
waste box
containers at WIPP from LANL, one shipment -- 42 55-gallon
drums at WIPP from INEEL, and
one shipment -- 26 55-gallon drums at WIPP from Rocky
Flats. The applicants claim that all of
these wastes are non-mixed waste. SRIC and CCNS Motion to
Supplement the Record, June 25,
1999.
The applicants admit that waste disposed in Panel 1, Room 7
before
issuance of the permit
will not be characterized in accordance with the final
permit. R.F. Kehrman, p. 221, ll. 11-14.
Remote-handled Waste
Remote-handled transuranic waste cannot be handled without
shielding and
it has a surface
dose rate of 200 millirem per hour or greater. Revised Draft
Permit, II.C.3.h.
Applicants have not provided any evidence of radiography of
remote-handled waste, any
headspace gas analysis for remote-handled waste, and no
characterization has been done of
remote-handled waste for disposal at WIPP. E.K. Hunter, p.
573, l. 25 - p. 574, l. 12 & p. 575, ll.
3-9.
There is insufficient waste characterization description in
the application regarding remote-
handled waste. S.O. Zappe, p. 2378, ll. 2-4.
Although the Revised Draft Permit prohibits remote-handled
waste, the
department could
not provide an opinion as to whether condition I.C.2. would
allow the applicants to make
modifications to the RH bay after providing notice. S.O.
Zappe, p. 2531, l. 21 - p. 2532, l. 1.
Non-defense waste
The WIPP Land Withdrawal Act limits WIPP to defense
transuranic waste.
Commercial
or non-defense waste is prohibited at WIPP. E.K. Hunter, p.
575, l. 23 p. 576, l. 5.
Defense and non-defense waste is commingled at Los Alamos
National
Laboratory. E.K.
Hunter, p. 580, ll. 16-24.
Waterflooding
Waterflooding is a process to inject water into oil-bearing
formations to
pump out oil as a
secondary recovery procedure. Dr. J.D. Bredehoeft, p. 2093,
ll. 9-18.
Waterflooding is typical everywhere, including southeastern
New Mexico,
and is a very
common practice. Dr. J.D. Bredehoeft, p. 2093, l. 25 - p.
2094, l. 4.
In the next couple of decades there is going to be quite a
bit of waterflooding around the
WIPP withdrawal boundary. Dr. J.D. Bredehoeft, p. 2103, ll.
4-8; p. 2104, ll. 19-20; & p. 2105,
ll. 18-20.
Waterflooding under high pressure can develop hydrofracs,
which are
cracks in the rock
that allows fluid to flow through the rock. Dr. J.D.
Bredehoeft, p. 2096, ll. 3-9.
In the Yates oil field in southeastern New Mexico,
waterflooding by
Texaco developed
hydrofracs. Dr. J.D. Bredehoeft, p. 2095, ll. 21-23.
At the Hartman well, a very large flow of water blew out the
well. Dr.
J.D. Bredehoeft, p.
2090, ll. 13-22.
The conclusion of consultants, including a consultant
frequently used by
DOE, was that the
blowout was caused by fracturing the anhydrite section of the
lower Salado formation and
migration for two miles to the Hartman well. Dr. J.D.
Bredehoeft, p. 2091, ll. 1-9.
The weight of the evidence is that what happened at Hartman
was hydraulic
fracture. Dr.
J.D. Bredehoeft, p. 2117, l. 10 - p. 2119, l. 3.
Only a small fraction of the brine lost from waterflooding by
Texaco blew
out at the
Hartman well. Dr. J.D. Bredehoeft, p. 2111, ll. 21-
25.
The geology of the Salado Formation with marker beds in the
area of WIPP
and where the
Hartman blowout occurred are not terribly different. Dr.
J.D. Bredehoeft, p. 2136, ll. 2-6.
Modeling done using data from the Hartman occurrence was a
reasonable
representation
of what occurred at Hartman. Dr. J.D. Bredehoeft, p. 2101,
ll. 1-11.
Using that modeling and applying it to
WIPP shows that a Hartman-like
event in which
35,000 barrels or 5,000 cubic meters of brine flowed in four
days would inundate 10 percent of
the WIPP facility. Dr. J.D. Bredehoeft, p. 2103, l. 20 - p.
2104, l. 3.
Under some circumstances of large amounts of water
injection, the entire
repository could
be flooded. Dr. J.D. Bredehoeft, p. 2110, ll. 15-24.
A similar event could happen at WIPP as occurred at the
Hartman well.
Dr. J.D.
Bredehoeft, p. 2103, ll. 9-14.
Such waterflooding and brine inflow into WIPP could occur
while WIPP is
an open
operating facility. Dr. J.D. Bredehoeft, p. 2109, ll. 9-
11.
It is fully possible that such a Hartman-like situation could
occur at
WIPP in the near term.
Dr. J.D. Bredehoeft, p. 2119, l. 14 - p. 2120, l. 4.
Hydrofracing could occur of Marker Bed 139, which is a few
feet below the
floor of the
underground disposal units. Dr. J.D. Bredehoeft, p. 2108, ll.
12-16.
Marker Bed 139 is connected to the repository by the
disturbed rock zone.
Dr. J.D.
Bredehoeft, p. 2153, ll. 7-11.
If the repository is filled with fluid, fluids and
contaminates could be
transported through
marker beds, drill holes, and shafts. Dr. J.D. Bredehoeft, p.
2113, ll. 14- p. 2115, l. 2.
Large amounts of fluids in the repository results in corrosion
of the
drums and generation
of hydrogen gas which causes a pressure buildup in the
repository, which can move contaminates
away from the waste rooms. Dr. J.D. Bredehoeft, p. 2115, l. 3
- 2116, l. 2.
To reduce the problem of corrosion and
gas pressure buildup, the steel
drums should be
eliminated. Dr. J.D. Bredehoeft, p. 2116, ll. 10-20.
In spite of state regulation, leaks do occur. Dr. J.D.
Bredehoeft, p.
2139, ll. 11-20.
A DOE contractor has concluded that nearby injection wells may
already be
the source of
leaks that affect water levels in the Culebra aquifer south of
the WIPP site. Dr. J.D. Bredehoeft,
p. 2146, l. 22 - p. 2147, l. 13.
Panel 1 Room Instability
In rock salt mines, failure is time dependent and the roof
gets worse
over time. J. Parker,
p. 1537, ll. 19-21.
Panel 1, consisting of seven rooms and associated drifts
South 1600 and
South 1950, was
excavated in 1986 and 1988 when waste emplacement was
expected to start in 1988. Dr. L.
Chaturvedi, p. 1036, ll. 7-15.
In Panel 1, now there is roof-failure in which the roof is
being supported artificially. J.
Parker, p. 1543, ll. 8-9, 13-25 & p. 1576, ll. 20-22.
The support systems, including rock bolts, in Panel 1 mask
the effects of
roof failure and
predictions of roof-fall. J. Parker, p. 1568, ll. 6-7 & p.
1560, l. 18.
Rock bolt failures cannot always be detected because broken
bolts can
hang in the hole and
not fall out. There may be more rock bolt failures at WIPP
than have been detected. J. Parker, p.
1642, l. 13 - p. 1643, l. 1.
In supported rooms in which the roof has failed, the failure
of the
supports can happen
singularly and be repaired or there could be a chain reaction
that wouldn't provide a warning. J.
Parker, p. 1560, ll. 20-24.
The support system could fail suddenly and a roof fall could
come suddenly. A chain
reaction roof fall at WIPP could happen so quickly that a new
support system could not be
installed to prevent it. J. Parker, p. 1568, ll. 11-12 & p.
1583, ll. 13-19.
There are no guarantees as to when
roof-fall will happen. Roof-fall in
Panel 1 cannot be
predicted more than a week or two in advance with any
certainty. J. Parker, P. 1568, l. 17-18; p.
1570, ll. 5-7 & p. 1570, ll. 8-10.
Abandoning Panel 1 and mining and using new rooms should be
done and
would be safer
and more economical. J. Parker, p. 1537, l. 25 - p. 1538, l.
1 & p. 1578, l. 24 - p. 1579, l. 6.
Abandoning Panel 1 and using freshly excavated Panel 2 as the
first panel
would be the
safest way to proceed. Dr. L. Chaturvedi, p. 1036, ll. 22-
25.
Accident scenarios regarding roof falls do not include the
likely scenario that a large
number of drums may be pierced by the stressed rock bolts and
they over-estimate the robustness
of the drums. Dr. L. Chaturvedi, p. 1059, l. 19 - p. 1060, l.
1 & p. 1060, l. 13 - p. 1062, l. 2.
Regulation by the Mine Safety and Health Administration
("MSHA") has not
prevented
roof falls in other mines. J. Parker, p. 1655, ll. 17-19 & p.
1656, l. 24 - p. 1657, l. 2.
MSHA's regulatory authority will not prevent roof falls at
WIPP. S.O.
Zappe, p. 2619, ll.
17-19.
Inspections by the MSHA at WIPP occur four times a year. WIPP
Act, Sec.
11(a). Dr. L.
Chaturvedi, p. 1156, ll. 1 - p. 1157, l. 23.
MSHA inspection reports have never addressed structural
integrity of
WIPP, nor have
MSHA inspectors evidenced the appropriate expertise to address
the integrity of the underground.
Dr. L. Chaturvedi, p. 1237, ll. 17-19 & p. 1238, ll. 9-
20.
An MSHA report from July 23, 1997 states that permittees were
impeding MSHA inspections and threatened the inspector. Dr. L.
Chaturvedi, p. 1256, l. 7 - p. 1257, l. 17.
If the permit precludes room stability, the WIPP project will
be essentially self-regulated in
this area. Dr. L. Chaturvedi, p. 1039, l. 22-25.
Permit Modification/Audit and Surveillance
Program
The audit program is the means by which the applicants
determine that
the generator sites
are characterizing waste in accordance with the Waste
Analysis Plan ("WAP"). C.M. Walker, p.
2719, ll. 12-15.
The revised draft permit audit and surveillance provision
gives the
applicants the flexibility
to determine how many sites and the waste stream(s) that are
to be audited.
S.O. Zappe, p. 2462,
ll. 3-15.
DOE's proposed limit of 30 days to review a final audit
record does not
provide sufficient
time for NMED, nor is there any basis in regulations for such
a limit. S.O. Zappe, p. 2461, l. 2 -
p. 2464, l. 19.
The audit and surveillance program in the revised draft
permit replaces
the requirement of
condition II.C.1 (last two sentences) of the draft permit
which required a permit modification to
demonstrate compliance with, and implementation of, the Waste
Analysis Plan. C.M. Walker, p.
2790, ll. 6-10.
The public comment process under the audit and surveillance
problem is
not equivalent to
and provides less public notice than that of the permit
modification process. C.M. Walker, p.
2790, l. 17 - p. 2791, l. 9.
Under RCRA, once a permit is issued, the major way to
provide public
notice is the
modification process. C.M. Walker, p. 2791, l. 10-19.
Without the permit modification process and the resulting
public notice
and comment,
NMED will have less information about compliance with the Waste
Analysis Plan than under the
audit and surveillance program. C.M. Walker, p. 2791, l. 20 -
p. 2792, l. 3.
Public comment provides information to
NMED that it otherwise would not
have. C.M.
Walker, p. 2774, ll. 4-18 & p. 2792, l. 4-9.
The flaws in the acceptable knowledge records and the processes
at the
generator sites are
not adequately dealt with by the audit and surveillance
process, and NMED's limited resources will
not discover the kinds of problems that exist through the audit
and surveillance process. D.
Hancock, p. 3564, l. 19 - p. 3565, l. 23.
CONCLUSIONS OF LAW
Introduction
The Resource Conservation and Recovery Act ( RCRA ) prohibits
the
treatment, storage
and disposal of hazardous waste without a permit issued by the
U.S. Environmental Protection
Agency ( EPA ) or an authorized state. 42 U.S.C. ¤
6925(a).
Congress
found that inadequate
controls on hazardous waste management will result in
substantial risks to human health and the
environment. 42 U.S.C. ¤ 6901(b)(5).
The permit is the linchpin of RCRA
s regulatory
scheme. Sierra Club v. Dept of Energy, 770 F.Supp. 578, 580
(D.Colo. 1991).
An authorized state hazardous waste management program operates
"in lieu of the federal
program." 42 U.S.C. ¤ 6926(b).
States may take primary responsibility for RCRA
implementation by installing an EPA-approved hazardous waste
management program. New
Mexico v. Watkins, 969 F.2d 1122, 1127 (D.C. Cir. 1992).
EPA authorized
New Mexico to
implement its base RCRA program in lieu of the federal program
effective January 25, 1985. New
Mexico v. Watkins at 1127; 50 Fed. Reg. 1515 (Jan. 11,
1985).
EPA authorized New Mexico to
implement the state hazardous waste management program in lieu
of the federal program for
mixed radioactive and hazardous waste effective July 25, 1990.
New Mexico v. Watkins at 1129;
55 Fed. Reg 28,397 (July 11, 1990).
EPA stated that the authorization suspends the applicability
of certain Federal regulations in favor of New Mexico s program,
thereby eliminating duplicative
requirements for handlers of hazardous waste in the State. 55
Fed. Reg.
at 28,397.
The New Mexico Hazardous Waste Act ( HWA ) governs the
treatment, storage and disposal of hazardous waste in New
Mexico. See N.M. Stat. Ann. ¤ 74-4-1, et seq.
This
includes the disposal of mixed radioactive and hazardous waste
at WIPP.
(DOE does not dispute
that the mixtures of radioactive and hazardous waste are subject
to the
HWA. See 52 Fed. Reg.
15,937 (May 1, 1987).)
The HWA requires that each person owning or operating a
hazardous
waste management facility have a permit. N.M. Stat. Ann. ¤ 74-4-
4(A)(6);
20 N.M.A.C. ¤
4.1.900; 40 C.F.R. Part 270.
The permit is issued pursuant to regulations promulgated by
the
New Mexico Environmental Improvement Board ( Board ). Id. The
Board promulgated
hazardous waste management regulations. 20 N.M.A.C. ¤¤ 4.1., et
seq.
The regulations for the
permitting of hazardous waste management facilities in
significant part incorporates corresponding
federal regulations. See 20 N.M.A.C. ¤¤ 4.1.500 & 900.
Recommended Denial
Hazardous waste "should be treated, stored, or disposed of so
as to minimize the present
and future threat to human health and the environment." 42
U.S.C. ¤ 6902(b).
The applicants
have the burden of proof that the permit should be issued. 20
N.M.A.C. ¤ 4.1.901.E.6.
The
applicants cannot meet the heavy burden to prove that the
issuance of a permit under the proposed
conditions will minimize the future threat to health and the
environment. Non-mixed wastes
A permit application must describe the facility, the wastes to
be disposed
of, and the
disposal operations. See generally 20 N.M.A.C. ¤ 4.1.900; 40
C.F.R. ¤ 270.13, 270.14 &
270.23.
A permit may not be issued without opportunity
for public review and comment.
N.M.S.A. ¤ 74-4-4.2.H.
An application for a permit shall contain information regarding
estimates with respect to
composition, quantity and concentration of any combinations of
any hazardous waste and other
solid waste to be disposed of, treated, transported or stored
and the time, frequency or rate at
which the waste is proposed to be disposed of, treated,
transported or stored. N. M. Stat. Ann. ¤
74-4-4.2(A)(1).
The permit application and other documents submitted by the
applicants identified the
facility and its operations by in part stating that nonmixed
transuranic waste would not be disposed
of at WIPP until a hazardous waste permit had been obtained.
NMED and the public relied on
those representations. The draft permit was issued on that
basis. The public submitted its
comments with that understanding.
The applicants have now disposed of waste at WIPP that they
claim as nonmixed transuranic waste in Panel 1 at WIPP. This
is a substantial deviation from the permit application.
Since that waste has not been characterized pursuant to the
terms of a final permit, as
recommended herein, the risks posed by that disposal to the
safe management of the mixed
transuranic waste, pursuant to the terms of a final permit, are
unknown. Accordingly, it is recommended that the pending
application for a permit should be denied.
This denial should be without prejudice to the submission of a
modified permit application that
accurately describes the past and planned disposal of nonmixed
transuranic waste at WIPP and its
effect on hazardous waste management operations at WIPP. As
an alternative to denial of the
permit application, the management of mixed transuranic waste
in Panel 1 at WIPP should be
prohibited in order to minimize any risks associated with mixed
tranuranic waste disposal in
proximity to the nonmixed waste, which has not been
characterized pursuant to the terms of a final
permit.
Panel 1 Instability
Pursuant to 40 C.F.R. ¤ 270.1(b)(4), incorporated in 20
N.M.A.C. ¤ 4.1.900, NMED can
deny a permit for one or more units at a facility.
Pursuant to 40 C.F.R. ¤ 264.31, incorporated in 20 N.M.A.C. ¤
4.1.500, a hazardous
waste facility must be designed, constructed, maintained, and
operated "to minimize the
possibility of ... any unplanned sudden or non-sudden release
of hazardous waste ... which could
threaten humn health or the environment." (emphasis
added).
There is a real possibility that the support system will
fail and a roof fall will come
suddenly. If so, human health and the environment will be
threatened. If a permit is issued for the operation of
WIPP, it should deny use of Panel 1 because its
use does not minimize the possibility of unplanned sudden
or non-sudden release of hazardous
waste. Further waste emplacement should be prohibited,
and permittees should be required to
provide and implement a closure plan for Panel 1, including
removal of all wastes and
decommissioning of the Panel.
Waterflooding
The permit application and other documents submitted by the
applicants did not identify
the potential for waterflooding and fluid injection near the
WIPP site, nor the possibility of
flooding the repository during operations or the post-closure
period. Such waterflooding could result in catastrophic
failure of the facility, including unplanned
sudden or non-sudden releases of large amounts of
contaminants from the repository, thereby
endangering public health and safety. See 20 N.M.A.C. ¤
4.1.900; 40 C.F.R. ¤ 264.31.
Accordingly, it is recommended that the pending application
should be denied. This denial
should be without prejudice to the submission of a modified
permit application that accurately
describes the potential for waterflooding and measures that
would be taken to eliminate or mitigate
potential contaminant releases.
Recommended Permit Conditions
Each RCRA permit shall include permit conditions
necessary to achieve
compliance with
the Act and regulations, including each of the
applicable requirements specified in parts 264 and
266 through 268 of this chapter. 20 N.M.A.C. 4.1.500; 40
C.F.R. ¤ 270.32(b)(1).
Each permit
also shall contain terms and conditions as the
Administrator or State Director determines
necessary to protect human health and the environment.
20 N.M.A.C. 4.1.500; 40 C.F.R. ¤
270.32(b)(2).
An owner operator of a hazardous waste management facility
must comply with performance standards for the treatment,
storage or disposal of all waste, including waste that is
not hazardous waste, received by the facility. N.M. Stat.
Ann. ¤ 74-4-4.A(5)(c).
The RCRA and HWA regulations set forth characteristics that
identify hazardous wastes.
The pertinent characteristics are ignitability, corrosivity,
reactivity, and toxicity. 20 N.M.A.C.
4.1.200; 40 C.F.R. ¤ 261, Subpart C.
A permit
application must include chemical and physical
analyses of the hazardous waste to be handled at the
facility. At a minimum, these analyses must
contain all of the information necessary to properly treat,
store, or dispose of the wastes. 20
N.M.A.C. 4.1.900; 40 C.F.R. ¤ 270.14(b)(2).
The generator must determine whether a waste has a hazardous
characteristic by either
testing the waste of or by applying knowledge of the hazard
characteristic in light of the materials
or the processes used. 20 N.M.A.C. ¤ 4.1.400; 40 C.F.R. ¤
262.11.
An owner or operator of a
hazardous waste management facility must obtain a detailed
chemical and physical analysis of a
representative sample of hazardous waste before storing or
disposing such waste. 20 N.M.A.C. ¤
4.1.600; 40 C.F.R. ¤ 264.13(a).
The purpose of the analysis is to assure that
owners/operators
have sufficient information on the properties of the waste to
able to treat, store, or dispose of the
waste in a safe and appropriate manner. 62 Fed. Reg. 62085,
(Nov. 20, 1997).
Process
knowledge or acceptable knowledge is only appropriate if
there is sufficient knowledge to
accurately characterize the waste. As stated by the Joint
NRC/EPA Guidance: However, testing
is not required if a generator has sufficient knowledge about
the waste and its physical/chemical
properties to determine that it is non-hazardous. It is
recognized that certain mixed waste streams,
such as wastes from remediation activities or wastes produced
many years ago, may have to be
identified using laboratory analysis, because of a lack of
waste or process information on these
waste streams. 62 Fed. Reg. 62083, (Nov. 20, 1997).
The applicants do not have sufficient
knowledge to characterize the debris waste stream, and
additional testing should be required, as
described below.
If a permit is issued, the following provisions, many of which
are contained in the revised
draft permit, are recommended for inclusion in a final permit:
Liquid wastes shall not be managed at WIPP. Waste shall
contain as little residual liquid
as is reasonably achievable by pouring, pumping and/or
aspirating, and internal containers shall
contain less than 1 inch or 2.5 centimeters of liquid in the
bottom of the container. Total residual
liquid in any payload container (e.g., 55 gallon drum, standard
waste box, etc.) may not exceed 1
percent volume of that container. See Revised Draft Permit
II.C.3.a.
Pyrophoric materials, such as elemental potassium, shall not
be managed at WIPP. See
Revised Draft Permit II.C.3.b.
Non-mixed hazardous wastes (i.e., hazardous wastes that are not
co-contaminated with
TRU wastes) shall not be managed at WIPP. See Revised Draft
Permit II.C.3.c.
Wastes that are chemically incompatible with backfill, seal
and panel closure materials,
container and packaging materials, shipping container
materials, and other wastes shall not be
managed at WIPP. See Revised Draft Permit II.C.3.d.
To adequately protect public health and
the environment, any waste drum that has evidence of rust,
pitting, or other form of corrosion or
other evidence that the contained waste is chemically
incompatible with the waste drum shall not
be managed at WIPP.
Wastes containing explosive or compressed gases shall not be
managed at WIPP. See
Revised Draft Permit II.C.3.e.
Wastes with polychlorinated biphenyl ( PCB ) concentrations
equal to or greater than 50
parts per million shall not be managed at WIPP. See Revised
Draft Permit II.C.3.f.
Ignitable, corrosive, and reactive wastes shall not be
managed at WIPP. See Revised Draft
Permit II.C.3.g.
Remote-handled TRU waste shall not be managed at WIPP. See
Revised Draft Permit
II.C.3.h.
Any waste container that has not undergone headspace gas
sampling and analysis shall not
be managed at WIPP. See Revised Draft Permit
II.C.3.i.
Any waste container that has not undergone either
radiographic or visual examination shall
not be managed at WIPP. See Revised Draft Permit
II.C.3.j.
To adequately protect public health
and the environment, for "debris waste streams," one hundred
percent visual examination shall be
required.
Any waste container from a waste stream which has not been
preceded by a
certified
Waste Stream Profile Form shall not be managed at WIPP. See
Revised Draft Permit II.C.3.k.
Unless the debris waste stream is segregated into
homogenous waste
streams that allow
for reliable representative sampling, every waste drum of the
debris waste stream shall be
visually examined for evidence of rust, pitting, or other
form of corrosion or other evidence that
the contained waste is chemically incompatible with the waste
drum. Any waste drum that has
evidence of rust, pitting, or other form of corrosion or
other evidence that the contained waste is
chemically incompatible with the waste drum shall not be
treated, stored, or disposed of at WIPP.
Unless the debris waste stream is segregated into
homogenous waste
streams that allow
for reliable representative sampling, every waste drum of the
debris waste stream shall be
examined visually for rags or other cellulosic material. Any
rags and cellulosic material intended to
be treated, stored, or disposed of at WIPP shall be tested
for corrosivity using an appropriate test
applicable to solids. Any waste that is determined to be
corrosive shall not be treated, stored, or
disposed of at WIPP.
Any waste that is a solid and is corrosive pursuant to the
applicable
corrosivity test of the
state in which the waste was generated shall not be treated,
stored, or disposed of at WIPP. See N.
M. Stat. Ann. ¤ 74-4-3.3 ( hazardous waste as used in the
HWA may include any material
imported into the state of New Mexico for the purposes of
disposal which is defined or classified
as hazardous in the state of origin ); see also 20 N.M.A.C.
4.1.300; 40 C.F.R. ¤ 262.20(b) ( A
generator must designate on the manifest one facility which
is permitted to handle the waste
described on the manifest. )
Unless the debris waste stream is segregated into
homogenous waste
streams that allow
for reliable representative sampling, then every waste drum
of the debris waste stream shall be
examined visually for sealed, rigid inner containers. Sealed
containers greater than four liters in
volume are prohibited at WIPP. Unless reliable
representative sampling is feasible, all sealed, rigid
inner containers intended to be treated, stored, or disposed
of at WIPP shall be tested for toxic
gases (i.e., all of the contaminants identified in Table 1 of
40 C.F.R. ¤ 261.24). If a toxic gas is
present, then an appropriate test for reactivity shall be
applied to
determine if the displacement of
the toxic gas by water would result in the release of a
sufficient quantity of the gas to be present a
danger to human health or the environment. If so, then that
waste shall not be managed at WIPP.
The toxicity characteristic leaching procedure (TCLP) shall
examine for
all of the
contaminants identified in Table 1 of 40 C.F.R. ¤ 261.24.
A threshold "miscertification rate" should be established at
no higher
than 11 percent. If a
generator site "miscertification rate" exceeds that
threshold, its waste characterization process will
be deemed deficient so that waste from that site will not be
accepted at WIPP until it takes
corrective actions so that the threshold can be met.
A standard of substantial compliance merely
requires compliance with the spirit of the
law rather than compliance with the exact provisions of the
law. See National Trust for Historic
Preservation v. Department of State, 834 F.Supp. 453, 455
(D.D.C. 1993), aff d & rev d in part
on other grounds, 49 F.3d 750 (D.C. Cir. 1995), citing
Wheeler v. District of Columbia Bd. of
Zoning Adjustment, 395 A.2d 85, 90 (D.C. Ct.
App.1978).
Substantial compliance will require
less than full compliance. This is an insufficient standard
to apply to a facility such as WIPP, and
DOE s suggested language for IV.B.2.b should be rejected. A
standard based on in in
accordance with is also vague, and it enacts no clear
standard of proof with which to judge
whether there is compliance.
If a permit is issued, it is recommended that the provision
read: The
Permittees shall not
dispose TRU mixed waste in any underground hazardous waste
disposal unit if the underground
hazardous waste disposal unit contains nonmixed TRU waste not
characterized in strict
compliance with the requirements of the Waste Analysis Plan.
(emphasis added). The strict
compliance language provides a clear, significantly less
malleable standard than that of
substantial compliance or in accordance with, and it
ensures protection
of human health and
the environment at WIPP. The potential for disputes deciding
whether DOE is in compliance with
the requirements of the Waste Analysis Plan will be lessened.
Anything less than strict
compliance presents exactly those dangers noted by NMED and
the public (e. g., failure to
adequately characterize the waste, failure to identify
prohibited items). If a permit is issued in spite of the
risk of waterflooding, in order to
adequately protect
public health and the environment, revised draft permit
condition III.C.1 shall be modified to
prohibit use of containers composed of steel, carbon steel,
or other metals subject to corrosion
when drums are in contact with large amounts of fluid in the
underground disposal units.
If a permit is issued, in order to protect public health
and the environment and to prohibit
construction that has not been permitted, it should prohibit
any modifications to the remote-
handled bay.
If a permit is issued, in order to protect public health and
safety and
to comply with the
requirements of the WIPP Land Withdrawal Act, it should prohibit
non-defense or commercial
waste.
If a permit is issued, permit condition II.C.1 should be revised
by adding:
The Permittees shall submit a
request to modify this Permit which demonstrates a
generator/storage site's compliance with, and implementation of,
the WAP.
The Permittees
shall not accept TRU mixed waste from the generator/storage site
prior to
the Secretary's
approval of the Permit modification.
If a permit is issued and the permit modification requirement
is not included, Permit
Condition II.C.2 (the Audit and Surveillance Program) should be
modified
to: (1) mandate the
Department s participation in the audits of generator sites;
(2) specify that the Department will
assess permit fees which would provide for its participation in
each and every audit; and (3)
include language clearly requiring that the final audit report
be made publicly available at the time
it is submitted to the Secretary.
Respectfully submitted this 25th day of
June, 1999.
SOUTHWEST
RESEARCH and
INFORMATION CENTER
and
CONCERNED
CITIZENS FOR NUCLEAR SAFETY
By:
KEVIN M. WARD
Harding, Shultz & Downs
1700
Lincoln Street,
Suite
1800
Denve
r, Colorado
80203
(303)
832-4400
FAX
(303) 832-6154
SOUTHWEST
RESEARCH and
INFORMATION
CENTER
By:
DON
HANCOCK
105
Stanford, SE
Albuquerque, NM
87105
505-346-1455
FAX 505-346-1459
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