Southwest Research and Information Center's (SRIC)
Rebuttal witness was
Mr. Hancock gave his rebuttal on the last day of the hearing,
March 26, 1999.
WRITTEN REBUTTAL TESTIMONY OF DON HANCOCK
"I am Don Hancock. A brief resume has been distributed with the Notice of
"I will specifically address the NMED direct testimony related to non-mixed
TRU waste and Permit Condition IV.B.2.b.
"NMED's direct testimony discussed the DOE commitment to not dispose of any
waste whether radioactive, mixed or hazardous at WIPP prior to receiving a
permit. The NMED testimony did not include the fact that the identical DOE
commitment was made to me, the nonprofit organization that I work for, and
to the citizens of the state. Attachment 1 is a letter from George Dials
on February 14, 1994 that contains the identical commitment included in the
letter on the same date to then NMED Secretary Judith Espinosa, which was
attachment 1 to the NMED direct testimony.
"The DOE commitment was key not only to what the new application for a
permit to dispose of wastes at WIPP would contain but also to the essential
RCRA requirement of public participation in RCRA section 7004(b). RCRA
also recognizes the essential role for citizens in the citizen suit
provisions of RCRA section 7002.
"On page 4 of its direct testimony, NMED stated that "the non-mixed waste
prohibition is essential to ensure that the Applicants do not dispose
unpermitted waste in a RCRA-regulated unit at any time." The intent of the
prohibition has been violated as the Applicants have taken one shipment of
waste to WIPP from Los Alamos, which arrived at WIPP this morning. And the
Applicants intend to violate the letter of the prohibition within a few
hours or days when they take the six standard waste boxes to Room 7 of
Panel 1 for disposal.
"Bill Richardson, Secretary of Energy, specifically stated DOE's intent on
March 22: "This week, the Waste Isolation Pilot Plant (WIPP) will "begin
disposal of radioactive transuranic waste from the Los Alamos National
Laboratory." Attachment 2.
"The actions of the Applicants to transport waste to WIPP, store wastes at
WIPP, and dispose of wastes at WIPP prior to the issuance of a final permit
under the Hazardous Waste Act is not included in the permit application.
Clearly, the application is inaccurate and incomplete. Further, the facts
in the record in this proceeding demonstrate the Applicants have knowingly
and willfully violated the commitments made to NMED and to citizens in the
February 14, 1994 letters. The applicants have not revised their
application to reflect the actual conditions and operations of WIPP as of
this time. Thus, SRIC believes the applicants are in violation of N.M.S.A.
"Even in this proceeding, the applicants did not introduce evidence to
revise their application to make it complete and accurate. NMED must
remand the Application for revision to address issues related to the wastes
that DOE has shipped to WIPP. The Application must also be remanded to
address the Applicants' intent to transport, store, and dispose wastes at
WIPP in addition to the one shipment that arrived today at WIPP.
"The applicants have not provided to the public, and presumably not to
NMED, comprehensive information related to waste characterization of the
specific wastes that were shipped to WIPP. Such information would include,
but not be limited to:
* how it complies with the application,
* how it complies with the Waste Acceptance Plan,
* how it complies with the TSDF waste acceptance criteria,
* how it complies with requirements related to prohibited items,
* how it complies with requirements for the WIPP Waste Information System
* how it complies with RCRA and HWA manifest requirements,
* how the parking area will be maintained now that radioactive wastes have
* how the Waste Handling Building and its areas covered by the permit
application will be maintained now that wastes are being managed and stored,
* how the underground hazardous waste disposal units will be maintained
with the six standard waste boxes -- and future containers -- emplaced,
* how derived waste from unpermitted wastes is stored and disposed,
* how hazardous waste generated from the radioactive waste at WIPP will be
managed at WIPP or other sites.
"SRIC believes that now that waste is at WIPP, the pending permit
application must be remanded and a new permitting process initiated with a
new permit application made available for public comment and NMED review.
The existing permit application and the revised draft permit are incomplete
and inaccurate, so SRIC recommends denial of the permit. SRIC also
believes that NMED must now take enforcement action against the Applicants
because prohibited wastes are stored at WIPP in areas that are included in
the application and the revised draft permit.
"Based on past performance regarding WIPP, NMED may not terminate the
existing permitting process. It will face pressure to water down or
eliminate any prohibition on non-mixed waste in the final permit so as to
allow the wastes now at WIPP and other wastes to be stored and disposed at
"Not content with its existing violations of RCRA and the Hazardous Waste
Act and its commitment to NMED and to citizens to not ship any wastes to
WIPP without a permit, DOE intends further actions to break its commitment
and to avoid citizen participation in the RCRA process.
"On March 23, 1999, DOE informed SRIC and others that it intends to ship
wastes to WIPP from the Idaho National Engineering Laboratory during the
week of May 17, 1999. I also expect that DOE will soon state that it will
begin shipping waste from the Rocky Flats Plant in Colorado to WIPP soon
"With the Sampling and Analysis Plan for LANL waste stream TA-55-43, Lot
No. 1, the Applicants and the NMED did not provide for public involvement
in the process, despite specific, repeated requests from SRIC, which are
already in the record with our comments on the draft permit, dated August
11, 1998, and the comments dated January 18, 1999.
"If NMED receives any waste characterization information from the
Applicants regarding the INEEL and RFP wastes, it should make that
information available to the public, solicit public comment on the
information, and provide public notice of any meetings with Applicants to
discuss those wastes. The Applicants should also provide that information
to the public.
"In an ironic sense, it is fitting that the public hearing on the proposed
WIPP permit under the HWA and RCRA end on the day that wastes arrive at
WIPP. We have gone through a permitting process that was not based on the
Applicants real intent. The permit hearing is ending and we have a new
reality that WIPP is not being operated as described in the application or
in the testimony and evidence provided at this hearing. Although the
hearing is ending, NMED's responsibilities under the Hazardous Waste Act do
not end. NMED should act to deny the permit application."
HIGHLIGHTS OF CROSS EXAMINATION OF DON HANCOCK
The DOE's action of shipping waste to WIPP without a NMED Hazardous Waste
Permit questions the integrity of the permit process. The commitment made
by the DOE is broader than the NMED or the DOE have said. Breaking this
commitment is just part of DOE's pattern of breaking commitments. Two
months after the test phase permit process; the DOE changed their mind and
dropped the test phase. Three days after the first draft of this permit
was released, the DOE said they would ship non-mixed wastes to WIPP. Near
the end of this permitting process, the DOE has broken the commitment again
by shipping to WIPP. The DOE will break its commitment in the future when
they ship wastes from the Idaho National Engineering and Environmental
Laboratory (INEEL) and the Rocky Flats Environmental Technology Site
(RFETS). There is also a larger pattern of broken commitments over the
last 25 years by DOE regarding WIPP and other DOE waste management
The DOE said that the Land Withdrawal Act requires waste disposal to start
by 1997. But in fact, Section 10 of the Land Withdrawal Act actually says
that the DOE should complete all actions required under Section 7B to be
able to dispose of waste by November, 1997; provided that, before that date
all health and safety standards are met and all legal processes are
completed. So the commitment is for the DOE, not for the NMED to issue a
permit by 1997. Congress did not exempt WIPP from compliance with RCRA,
which it could have if it wanted to.
Judge Penn [in the case of State of New Mexico v. DOE, (D.D.C, Civ. Nos.
91-2527 and 91-2929)] has said that WIPP has interim status. SRIC has
appealed that issue and will ask for Judge Penn's decision to be overturned
and request that any waste disposed of at WIPP be sent back to the
generator sites. A disposal facility with interim status may dispose of
RCRA wastes, but it still has to comply with the RCRA interim status
regulations. DOE has not even said that they have complied with the RCRA
interim status regulations.
The TA-55-43 waste stream is subject to some review by the NMED. The
public should be involved with the review of that waste stream. This is
why SRIC has objected to the deletion of the Permit Modification
requirement for generator sites so that the public could participate in
this review. SRIC submitted comments on the TA-55-43 waste stream that
were not considered by the NMED. These comments showed that much of Lot 1
could be considered hazardous because there was no documentation on 11 of
the drums to show they were not hazardous. It would not have been
impossible for the NMED to consider SRIC's information if adequate time had
been given by the NMED for public submissions.
The NMED found the waste stream was not hazardous, but this is being
contested in the D.C. federal Court of Appeals.
Dr. Hirschhorn's declaration was submitted to Judge Penn in the
above-entitled case. Mr. Franke's declaration was not submitted to Judge
Penn, but was submitted in this proceeding. Both Dr. Hirschhorn and Mr.
Franke were asked to work for SRIC and CCNS after January 25, 1999, when
the Reply Brief was sent to Judge Penn. There were no declarations from
Dr. Hirschhorn or Mr. Franke with that Brief. On February 1, 1999, SRIC
and CCNS supplemented their Reply Brief with Dr. Hirschhorn's declaration.
The IV.B.2.b provision is not part of the final Permit because there is not
yet a final permit. But the DOE is aware that the NMED intends this
section to ensure that DOE does not emplace unpermitted wastes in a
hazardous waste facility at any time.
SRIC has never received a letter from the DOE stating that George Dials'
commitments are null and void. Secretary Richardson's statement was not
part of the record before 4 days ago. The DOE's intention to ship
non-mixed waste was officially mentioned in this permitting process on
August 11, 1998 when SRIC submitted comments [not the DOE] and this was
less than a year ago.
Steve Zappe and the NMED did not consider the DOE's October 1997 letter to
be a specific request or notification to ship waste. In fact, the TA-55-43
waste did not exist then. Pam Rogers made up the TA-55-43 waste stream
after that date [October 1997]. On May 18, 1998, the NMED received a
letter from the DOE saying they would be giving the NMED information on the
TA-55-43 waste stream. In June and July 1998 [after the May 18, 1998
letter], the NMED said that the information submitted on that waste stream
was inadequate. The DOE says that the NMED later found in December 1998
that the information was adequate. However, that December 1998 letter said
that the waste could be "managed as non-hazardous waste at LANL," but the
letter does not say that the waste can be shipped as such to WIPP. That
December 1998 letter also says the NMED have given adequate response to
public comments. That is not true, because the NMED did not respond to the
Waste that is already disposed of at WIPP cannot be characterized to the
requirements of the final Waste Analysis Plan (WAP). The prohibited items
in the Treatment, Storage, and Disposal Facility Waste Acceptance Criteria
(TSDF WAC) [Section II.C.3 of the draft Permit], even in small quantities,
could have bad effects on the operation of the facility. The TSDF WAC was
not part of the hazardous waste determination of the TA-55-43 waste stream
because the TSDF WAC is not in final form yet. Section IV.B.2.b of the
Permit is necessary, but the language "identical to" needs to be included
in the Final Permit so that the requirements of Section IV.B.2.b are clear
SRIC opposes the 2% miscertification baseline rate. This miscertification
rate is based on work done at INEEL in the early 1990's. This work was not
related to the requirements in the revised draft or final Permit. There is
more recent data showing higher miscertification rates. The starting
miscertification rates should be site-specific. The rate should be created
through the performance of each site. If a baseline is used, it should be
the highest. Twelve months is also much too long to use as the
miscertification rate. The miscertification rate should be based on a
shorter time to avoid shipping prohibited items under a miscertification
rate that is too low. The Permit should build in strong safeguards.
There needs to be a requirement for a Permit Modification for each site
before it can send waste to WIPP. This requirement is necessary so that a
process is established where real data may be put in front of the public.
The Land Withdrawal Act specifically states that WIPP is for defense
generated TRU waste only. Congress was aware that there was non-defense
TRU waste in the DOE inventory. Congress specifically excluded non-defense
TRU waste from disposal at WIPP. The TA-55-43 National Aeronautics and
Space Administration (NASA) waste is outside the scope of the Land
Withdrawal Act requirements. LANL has admitted that defense TRU and
non-defense TRU waste is co-mingled.
The most important point today is whether circumstances are so changed that
the pending Permit Application must be denied.
There have not been any other WIPP hearings where all sides spoke of the
geology of the site and other things. The Environmental Protection Agency
(EPA) hearings and the DOE National Environmental Policy Act (NEPA)
hearings did not have this kind of technical presentation with
cross-examination. SRIC asked the EPA to conduct a hearing like this, but
the EPA did not.
The RCRA Permit will be the only operating permit for the WIPP facility.
EPA is interested in the long term only, not the day-to-day operations at
WIPP. That is why this hearing is so important. Part of RCRA's purpose is
public participation and that is also important.
Mr. Hancock has seen drums at INEEL that were stamped "WIPP certified" that
were characterized under conditions that were not even close to the Waste
Analysis Plan (WAP) under the draft Permit. Characterization at other
sites is suspect and needs miscertification rates based on actual
experience. The citizens of the State of New Mexico need stringent
requirements in the Permit so that characterization is not what George
Dials, Keith Klein, or even Don Hancock says. Waste characterization will
be what is in the final WAP.
Citizens for Alternatives to Radioactive Dumping (CARD) lost its appeal
with Judge Vasquez because they could not show a clear legal violation that
could be a finding of nuisance. There was not enough time to fully present
all the information that exists on the Lot No. 1 waste stream and its
nature. The rush was caused by the DOE's haste to ship one shipment
without the proper 14 day notice to the State of New Mexico and without
giving the public adequate time to respond. The Land Withdrawal Act at no
point requires waste to be shipped to WIPP at any particular time.
We need more Continuous Air Monitors (CAM) in the WIPP facility to monitor
for RCRA and radioactive releases.
A member of the public said that a former radiographer at LANL stated
that LANL used to certify waste as "WIPP certified" even when the assay
machine was broken and when the RTR machine was not working and did not
give a clear picture. Figures from Acceptable Knowledge (AK) were simply
copied over onto the assay forms, etc. This activity was never caught by
any of the audits. If this type of activity were to occur in the future,
the NMED's audit procedures would not catch it either.