Presentation of the New Mexico Environment Department (NMED)
TECHNICAL TESTIMONY OF CONSTANCE MARIE WALKER - March 19, 1999.
Connie Walker received a B.S. and a M.S. in Geology, Colorado School of
Mines and a B.S. in Geology, Colorado State University. Ms. Walker has
more than 17 years of environmental consulting experience, including the
performance and management of numerous RCRA permitting tasks, with an
emphasis on groundwater monitoring, waste characterization, and corrective
action. On behalf of the EPA and other clients, Ms. Walker has
reviewed/written RCRA Part B permit applications, Subpart X permit
applications, closure/post-closure plans, corrective measures studies,
interim measures evaluations, RCRA facility investigation workplans and
reports, RCRA facility assessments, and RCRA sampling programs. Ms. Walker
has conducted training programs for compliance monitoring and compliance
evaluation, and developed quality assurance project plans. Ms. Walker has
participated in and managed WIPP related projects for over 10 years,
including providing support to the EPA Office of Solid Waste (OSW) on both
the WIPP Test and Disposal Phase No-Migration Variance Petition. Ms.
Walker worked as a Techlaw consultant to the EPA Office of Radiation and
Indoor Air (ORIA) on the WIPP Compliance Certification Application review.
Ms. Walker worked as a Techlaw consultant to the NMED on the WIPP Test
Phase and Disposal Phase Permit Applications.
Currently, Ms. Walker is a member of the NMED WIPP Support Program for
Techlaw. Techlaw is the technical consultant for the NMED on the
SECTION IV.B.2.b--NON-MIXED WASTE--GASEOUS VOCs.
Radiolysis will create VOCs in the non-mixed waste containers, and some of
those VOCs are listed in the draft Permit. However, Ms. Walker does not
know if VOCs will be in all the non-mixed waste containers or how much
there will be. This very uncertainty means that the NMED's concerns about
the characterization of the non-mixed waste are valid regarding VOCs.
The NMED would have no confidence in the waste coming to WIPP if it is not
characterized to the final WAP. Prohibited items could be in the waste as
well as explosive, reactive, corrosive, and ignitable wastes. The EPA's
final decision on the Compliance Certificate did not address the hazardous
component of the waste. The EPA's Office of Radiation and Indoor Air
(ORIA) regulations are not duplicative of the state RCRA regulations. ORIA
inspections do not extend to RCRA issues. The EPA does not evaluate
Headspace Gas Sampling and Analysis, Acceptable Knowledge, Visual
Examination, or Radiography.
Normally under RCRA regulatory scheme, the Permittees must inspect and, as
necessary, analyze all waste received at the disposal facility
("fingerprinting"). The Application, however, does not include provisions
for on-site fingerprinting, only self-regulation. The DOE proposes that
the audits will be used to check the generator sites' characterization.
The DOE/WID will travel to each generator site to perform the audits. The
original audit program, as described in the DOE's Application, was revised
in the draft Permit by the NMED's imposed conditions. The audit ensures
the generator sites comply with the WAP. The NMED's approval of the WAP is
conditioned on the audit. The NMED will not be approving a generator site,
only the Permittees' audit of the generator site.
THE DOE'S COMMENTS ON THE AUDIT
The DOE is not opposed to the NMED's participation in the audits but wants
to establish some ground rules:
1. The DOE wants the NMED to approve the Final Audit Reports within 30
days. The NMED, however, feels 30 days is too short a time.
2. The DOE wants the NMED to participate in the audits and resolve any
problems before the end of the audit itself. The NMED is currently
reviewing testimony (both oral and written) presented in this Hearing on
the mandatory participation of the NMED in the audits. The NMED might need
time after the audit is over to review all information.
3. The NMED may have to review the actual characterization and actual
data to ensure that the DOE is complying with the characterization process.
The NMED would examine actual results to see if those results function
properly in the characterization process.
4. The DOE originally thought the audit approval should not be
required for generator sites already approved by the EPA. Now the DOE no
longer believes EPA's ORIA is a substitute for NMED audits.
5. The DOE said the Final Audit Report should not be available for
public review and comment, stating that it would be duplicative and
unnecessary. However, the law requires the public to be involved. As with
any document, the public may examine the Final Audit Report, submit
comments, and the agency is required to read and comment on the public's
comments. The NMED may also create more of a role for the public to be
involved in the process for the Final Audit Reports.
6. The DOE does not want to be tied to the 45-day notice requirement
to NMED to schedule audits. The DOE requests more flexibility. The NMED
is currently revising the 45-day notice requirement and will require some
general notice of the audits.
MISCERTIFICATION RATE FOR RADIOGRAPHY
The DOE has proposed a 2% error percentage rate guideline for the Visual
Examination (VE) of the radiography of the drums for sites that do not have
an established historical miscertification rate. [The miscertification
rate is the error rate between the results of the radiography of the drum
and the results of the visual examination of the drum. Generator sites
that do not have historical miscertification rates are allowed under the
draft Permit to begin verifying radiography by visually examining 2% of the
waste drums. Each site, however, is unique in its ability to characterize
waste.] There has been testimony that the historical miscertification rate
for the Rocky Flats Environmental Technology Site (RFETS) is 3.6%. The
historical miscertification rate for the Los Alamos National Laboratory
(LANL) is 11%. The NMED is looking at this issue and may revise the
percentage to be used as a baseline.
HIGHLIGHTS OF CROSS-EXAMINATION OF CONNIE WALKER:
The results of the Reed and Molecke study on radiolysis apply only to the
waste that was experimented on, not to all waste. Ms. Walker does not know
what percentage of the waste is identical to the experimental waste. Reed
and Molecke say the generation of VOCs is not important from the
perspective of regulatory compliance.
Even if the non-mixed waste were characterized in accordance with the terms
of the WAP of the revised draft Permit, the NMED would not necessarily have
confidence in the results because the draft Permit is not applicable at
this time. The final WAP has not been issued. The final WAP will be the
applicable waste characterization standard.
The audits are the only mechanism to ensure that the equivalent of
fingerprinting is being performed correctly at the DOE generator sites.
The NMED would raise as many issues as possible during the audit; however,
limiting audit issues that may arise during the review of the Final
Analysis Report does not allow the NMED to meet its regulatory
responsibilities. Documentation may be generated during the audit, and it
may be voluminous. There may be voluminous AK to review. The audit report
is a public record. Any document reviewed by the NMED allows public
comment to the NMED, even in the absence of a comment period. The audit
provision is the linchpin for demonstrating compliance with the WAP.
Audit review criteria should not include actual waste characterization
data. Examples of how waste characterization is implemented will be
examined and some data will be examined as part of the audit process. If
it appeared that the DOE/WID was providing inadequate data, the NMED could
ask for more actual data. The NMED has access to any data in the operating
record and in the WWIS.
Other procedures in the Application that could demonstrate compliance with
the WAP are the Quality Assurance Plan (QAP) and the Quality Assurance
Project Plan (QAPjP). The QAPjP describes how a generator site meets the
requirements of the WAP. It road maps operations that address compliance
with the WAP. The QAPjP typically repeats specific requirements and
enumerates Standard Operating Procedures (SOP). These procedures may be
site-specific technical elements of the WAP. No site has submitted a SOP
to the NMED. After the final Permit is issued, QAPjPs and SOPs must be
provided prior to site audits.
LANL would be required to continue to apply the 11% miscertification rate
for VE after the final Permit is issued. The actual miscertification rates
are different from the 2% rate in the draft Permit. The NMED will revisit
The audit checklists are necessary. Proper implementation of the WAP
should include information on prohibited items. The intent of AK is to
identify prohibited items and the timeframe when the AK package is
assembled. After the Permit process is completed, the QAPjP, SOP, and
other documents will set forth the required AK procedures at each site. If
mandatory AK is not available, supplementary AK will fill in the gaps. In
this case, the waste will be redesignated as "newly generated" and will be
subject to the VE requirements of newly generated waste.
The DOE, under its own procedures, has certified 3 sites to send waste:
the Idaho National Engineering and Environmental Laboratory (INEEL), the
Rocky Flats Environmental Technology Site (RFETS), and the Los Alamos
National Laboratory (LANL). The draft Permit does not contain actual
procedures on waste analysis. The NMED is not required to concur with the
DOE's certification of these 3 sites.
Throughout the DOE's Application, there are references to radiolysis.
There is, however, no section addressing radiolysis. Radiolysis was not
included in the first draft Permit, but was included in the second draft
due to public comment. This is an example of public comment providing
information to the NMED to help them protect human health and the
Section II.C.3.a-k lists prohibited items under the Treatment, Storage, and
Disposal Facility Waste Acceptance Criteria (TSDF-WAC). For instance,
liquids are used in some processes at generator sites. In the absence of a
prohibition on liquids in the final Permit, the NMED would have no control
over whether liquid waste could be disposed of at WIPP. In the absence of
adequate characterization, prohibited liquids could be disposed of at WIPP,
thus endangering human health and the environment. Some of the VOCs from
the liquids are carcinogenic. The same regulatory problems could occur
with other prohibited items such as explosives, PCBs, and ignitable,
corrosive, or reactive waste.
Headspace gas analysis is used as a confirmatory process on all the drums
and to assess underground gas concentrations. However, headspace gas
analysis does not measure the actual concentrations of gas in the drums.
The first draft Permit required the waste to be treated to land disposal
treatment standards under RCRA. Typical land disposal facilities regulated
under RCRA are required to treat the waste before disposal. The NMED
received many comments on this section of the first draft Permit and this
requirement was deleted from the second draft. The treatment standards
were deleted in order for the draft Permit to conform to the Land
Withdrawal Act provision exempting WIPP from RCRA land disposal
requirements. However, this Land Withdrawal Act provision was known before
the first draft Permit was written. Treatment of the waste would have
reduced the amount of VOC emissions.
In the first draft Permit no waste could be disposed of at WIPP without a
Permit Modification for each individual site (Section II-C-1). Any kind of
Permit Modification requires public notice. [Modifications are classified
as Class I, Class II, and Class III.] Class I modifications provides for
notifications. More public involvement is required for Class II
modifications. Class III modifications can include hearings.
The II.C.2 audit requirements added to the second draft partially replace
the deleted portions of II-C-1. The Permit modification requirements
provide for more public notice and comment than that required by the audit
process. The NMED is reviewing the various comments on this subject. More
public comment allows the NMED to receive additional information; less
public comment inhibits NMED's ability to protect public health and the
Although the EPA inspections do not require the evaluation of headspace
gases or solid sampling, the NMED requires both. The EPA has certified
LANL to characterize and ship debris waste in the May 1990 certification
rule. The EPA has not certified any other LANL waste streams in the EPA
Certification Rule (homogenous solids or soils/gravel). Once the Permit is
in place, the new provisions of IV.B.2.b could address the TA-55-43 waste
Techlaw and the NMED reviewed all public comment on the TA-55-43 waste
stream and the Sampling and Analysis Plan (SAP). The NMED's review is
considered by the NMED to be an enforcement issue, not a permitting issue.
Southwest Research and Information Center's (SRIC) and CCNS's comments on
the SAP, which were not reviewed by the NMED when they were submitted, are
also considered a separate issue from the Permit even though they were
resubmitted to NMED as comments to the draft Permit.
The 2% miscertification standard was developed using VE data at the Idaho
National Engineering and Environmental Laboratory (INEEL). The
miscertification standard was published in 1994. VE was used as a DOE
characterization process prior to 1994. The DOE has not updated the
miscertification rate to reflect recent data. The 2% miscertification rate
is based only on the DOE's data and analysis. The NMED has not established
a miscertification rate for the final Permit or for the final WAP.
The EPA's final rule on their Compliance Certification does not include
regulations relating to miscertification procedures or rates. The NMED
will be the only external agency [federal or state] establishing a
miscertification rate. The Permit will require the annual review of the
miscertification rate at each site. The rate will be assessed in the first
year and that rate will be used the following year. The miscertification
rate is established on an annual basis for each site. The miscertification
rate issue is being further assessed by the NMED.
For example, if the Oak Ridge National Laboratory (ORNL), a DOE generator
site, starts to ship waste in 2002, ORNL would use the baseline 2%
miscertification rate. The baseline rate would apply even though the waste
streams differ at the various DOE sites. The ability to accurately
characterize waste also varies. [Ms. Walker first learned of the differing
site rates at this Hearing.] ORNL could hypothetically ship hundreds or
thousands of drums to WIPP based on the 2% miscertification rate for a year
before review. The 2% miscertification rate would apply even if ORNL's
historical miscertification rate was much higher. There are no
requirements to exhume or reexamine drums emplaced under a lower rate if
the rate is found to be much higher. There is no miscertification limit in
the Permit that would result in the prohibition of a generator site to ship
VE is a testing technique used to verify radiography (or used in place of
radiography). If prohibited items are found during VE, a non-conformance
report must be made to the DOE within 5 days and to the NMED within 30
days. Prohibited items should be identified in the AK before radiography
or VE, both of which are used to confirm the AK. The VE becomes
supplemental to AK. When VE shows prohibited items that were not listed in
the AK, that waste will not be shipped until the item is removed or the
situation is resolved in some way. The discovery of a prohibited item
indicates that there is an omission in the AK. Since AK is the entire
process, including the verification, the omission of a prohibited item is
not considered an "error" of AK.
There are many elements in the Permit that could prevent the shipment of a
waste stream to WIPP. Some examples are if an audit has not been
completed, if manifests are not available, or if prohibited items or
incompatible materials are in the waste stream, etc.
There is no monitoring for tritium in the headspace gas sampling and analysis.
It is possible that the presence of PCBs could not be known, even through
VE. The presence of PCBs could be known only through AK and testing. Some
chemical components of the waste could be chemically altered after they are
sealed in a container. For example, headspace gases are chemically altered
There is nothing in the Permit that defines the duties of the NMED
personnel during the audit.
The DOE issues a yearly calendar of audits. When the DOE believes a site
is ready to be audited, the DOE schedules an audit.