Presentation of the New Mexico Environment Department (NMED):
New Mexico Environment Department (NMED) made an opening statement. The
NMED stated that its role is to hear public comment and respond to those
comments. Some conditions in the Permit have both regulatory and technical
components. Although the NMED will not be responding to recent comments
during the Hearing, they will explain their imposed conditions. The NMED
submitted a large binder of NMED's Direct Testimony Regarding Regulatory
Process and Imposed Conditions.
TECHNICAL TESTIMONY OF STEVEN ORVIL ZAPPE; March 18, 1999.
Mr. Zappe is a Geologist III in the NMED's Hazardous and Radioactive
Materials Bureau. Mr. Zappe received a M.S. in Geological Science,
University of California, Riverside, and a B.S. in Physics, California
State University, Fresno.
Mr. Zappe has been the WIPP Permit preparer since 1994. Previously, Mr.
Zappe was an exploratory geophysicist for Shell Oil and a technical trainer
for geological modeling software.
The Permit Application consists of two parts. Part A is a pre-printed form
which identifies the owner/operator, location, types of waste, and types of
activities requiring a permit. Part B is larger, less structured, and its
requirements are specified in the regulations. There must be a chemical
and physical description of the waste, descriptions of the disposal units,
preparedness, monitoring, contingency closure and post closure plans, among
other things. In addition, the Permit for WIPP would regulate container
storage units and miscellaneous units (waste panels.) The completeness and
accuracy of the Application will determine when or if a Final Permit will
TECHNICAL COMPLETENESS DETERMINATION
DOE has revised the Permit at least
5 times. Mr. Zappe described the Technical Completeness Determination
process. First, certain elements have to be present in the Application.
Then there must be enough information to satisfy the technical and legal
requirements. The Application can be complete but technically inadequate.
This is common with permit applications. Then the NMED can submit a
request for more information or make a more formal request through a Notice
of Technical Deficiency. For the WIPP Application there were at least 3
requests for more information on all aspects of the Application because it
had serious deficiencies. When Revision 5.2 was submitted in January 1996,
the NMED issued the more formal Notice of Deficiency (NOD) citing
specifically waste characterization, risk assessment, the monitoring plan,
and the closure plan.
Revision 6 was issued in April 1996. There were still some lingering
deficiencies. The NMED decided not to continue the cycle of requesting
more information since they probably would get back what they wanted from
the Applicant anyway. They issued a Notice of Technical Completeness in
June 1996. The same deficiencies persisted as before, but the NMED decided
to address them by imposing conditions in the draft Permit. For instance,
under waste characterization, the NMED prohibited all remote-handled (RH)
waste. The DOE originally wanted the NMED to only observe the audit
process, but the Permit requires the NMED to approve the audit. The NMED
also changed some of the assumptions for the risk assessment for VOC
releases from the repository. The DOE identified on their own that the
groundwater monitoring program needed revision.
However, the completeness determination was rescinded in June 1997 for
various reasons, including that additional, new corrective action
information was received.
Revision 6.5 of the Application was issued in November 1997. The NMED
issued a new Completeness Determination in January 1998. The first draft
Permit was issued May 15, 1998. After the final Permit is issued, it can
be modified if the NMED receives new information or if the Permittees
request a modification. All modifications require public notice.
WIPP WASTE INFORMATION SYSTEM (WWIS)
The WIPP Waste Information System (WWIS) is a computerized database which
contains waste characterization information on all waste shipped to WIPP.
The draft Permit requires that the original records be maintained on-site
at the WIPP facility. The NMED requires the information in the WWIS to
determine if the Permittees are complying with the Permit requirements.
The NMED must have access to the original records and the WWIS records.
However, the DOE, in its Application to the NMED for the permit, did not
allow the NMED to have access to all of these records. Only summarized
characterization information would be reported on a waste stream basis and
transmitted when requested to the NMED. Summarized information is not the
same as the original records and information from the WWIS. Hardcopies of
the information are only available at the generator sites, most of which
are out of state. Only original records satisfy the regulatory
requirements. It is unclear if the NMED would have free access to the
records at DOE sites in other states.
Owners and operators of hazardous waste disposal facilities are required to
fulfill the RCRA financial assurance requirements. [FINANCIAL ASSURANCE is
of two kinds: 1. Westinghouse will have money to do closure and cleanup
any problems they may have created. 2. Liability insurance to prove that
if anyone is harmed by the contractor's actions, that there is money to pay
for them. Financial assurance can be provided in several different ways as
described in RCRA.] State and federal governments are exempt. No state
may impose requirements less strict than those applied by the Environmental
Protection Agency (EPA). New Mexico must be consistent with the federal
RCRA requirements and have adequate enforcement to ensure compliance. EPA
has stated that the state regulations must include financial assurance.
New Mexico's financial assurance requirements are identical with and
equivalent to the EPA's requirements.
The RCRA regulatory scheme provides for environmental protection from
hazardous waste from "cradle to grave," including final cleanup of disposal
sites. Under RCRA, those who benefit from disposal operations shall be
responsible for the cleanup costs when the site is closed. Disposal site
operators must work in a way that minimizes the possibility of the spread
of contamination, always anticipating the closure of the facility.
Disposal site operators must have enough money to complete final cleanup.
The NMED is concerned that if an operator has a history of environmental
noncompliance, the operator might disregard appropriate management of their
wastes, driving up cleanup costs at the end of the project.
The DOE requested a waiver of the financial assurance requirements in its
Mr. Zappe introduced a letter into the record which disclosed
Westinghouse's environmental noncompliance record. This letter shows that
Westinghouse is responsible for numerous facilities and details 307
discrete environmental violations and 55 Occupational Safety and Health
Administration (OSHA) violations. More than 100 of the violations resulted
in fines. The NMED finds no reason to believe that Westinghouse's
operations at WIPP will be any different.
The DOE has already claimed inadequate funding as a defense for not
cleaning up contamination as a result of its operations at the Los Alamos
National Laboratory (LANL) in New Mexico. Inadequate funding has been used
at other federal facilities as a defense for not meeting obligations to
comply with environmental laws. This reasoning has been used by the DOE at
its Hanford, Washington facility for why the DOE did not clean up the tanks
leaking radioactive and hazardous materials into the groundwater. [This
contamination could move to the Columbia River in a short amount of time.]
No other state has permitted a facility for mixed transuranic waste
disposal. The EPA has not permitted any other mixed waste disposal site in
The Permittees must estimate in detail the closure and post-closure costs.
The Permittees must also demonstrate financial capabilities with financial
assurance. The NMED imposed what it estimates to be the real closure and
post-closure costs in the draft Permit.
In the Permittees Comment 179, the DOE proposes that DOE guarantee that if
Westinghouse fails to perform the closure/post-closure properly, the DOE
will ultimately be liable. The DOE proposes that Westinghouse should not
have to show financial assurance.
The regulations also require that the operator demonstrate financial
assurance for normal operations and accidents through liability insurance.
In the same Comment 179, Westinghouse's Waste Isolation Division (WID)
proposes to submit a declaration of self-insurance. WID also suggests that
the DOE will indemnify WID against claims of public liability.
The NMED is not prepared to comment on or approve any of the suggestions
found in Permittee's Comment 179 at this time.
NON-MIXED WASTE PROHIBITION
Provision IV.B.2.b of the draft Permit says that no non-mixed waste can be
disposed of at WIPP unless it is characterized identically to the
requirements of the Waste Analysis Plan (WAP). The NMED suggests changing
the words "identical to" to "in accordance with." The NMED wants to make
it clear that if waste does not meet the waste characterization
requirements of the WAP, the waste will be prohibited from disposal at
WIPP. Characterization is the linchpin to safe disposal. If what is in
the waste is unknown, the proper methods to treat, store, and dispose of
the waste safely cannot be determined. If the DOE disposes of any
non-mixed waste that has not been characterized in accordance with the WAP
in any waste panel at WIPP, the NMED will not allow any mixed waste to be
disposed of in that panel.
Technical concerns include HEADSPACE GAS SAMPLING AND ANALYSIS FOR Volatile
Organic Compounds (VOCs). [Volatile Organic Compounds (VOCs) are a broad
range of organic compounds that vaporize at relatively low temperatures.
VOCs are typically generated by chemical reactions that take place when the
original compound is used as a cleaner, degreaser, or solvent. Carbon
tetrachloride, methylene chloride, xylene and methanol are some of the most
common VOCs in the WIPP waste. VOCs such as benzene are also generated by
radiolysis.] Some of the VOCs are carcinogenic.
The NMED is required to protect human health and the environment. Without
information on VOCs in the headspace of the drums, the NMED cannot protect
human health and the environment. The Permittees have failed to indicate
whether VOCs would be present in the headspace of non-mixed waste
containers in their Application. If there are VOCs in the non-mixed waste
that are not characterized or reported [and it is probable that there will
be], it will be impossible to know what contribution those VOCs will make.
[It is unknown how many drums of "non-mixed" waste the DOE will bring to
WIPP.] It will also be impossible to accurately determine the VOC room
limits in the repository. [See below for more on the room-based limits.]
The EPA has no intention of monitoring for VOCs at WIPP.
Acceptable knowledge (AK) records are the basis for a mixed or non-mixed
waste determination. If AK is not confirmed by Real Time Radiography
(RTR), Visual Examination (VE), Solids Sampling, as well as headspace gas
analysis, the NMED will have no confidence in their ability to use AK to
determine whether the waste is mixed or not.
Unless all of the waste is required to undergo either RTR or VE, there will
be no way to determine if prohibited items will be disposed of at WIPP.
If Solids Sampling is not required, it will be difficult to determine if
the waste is mixed or non-mixed.
It is important to know that all of the data has been validated to have
confidence in the data.
The prohibition against non-mixed waste that is not characterized in
accordance with the WAP ensures enforceability of the other Permit
conditions. Section II.C.3 lists the Waste Acceptance Criteria (WAC) and
prohibited items. Unless non-mixed waste is characterized to the WAP, the
NMED cannot be assured that all the prohibited items listed in Section
II.C.3 will not be in the waste.
The room-based limits were established to protect residents at the
boundary, non-waste surface workers, and underground workers from adverse
releases of VOCs. Unless the NMED is provided with information on
headspace gas concentrations in the non-mixed waste containers, it will be
unable to know the emissions coming from the non-mixed drums. The
Application has always explicitly stated that all waste would be managed as
if it were mixed waste. [All assumptions in the draft Permit are based on
the DOE's statement that all waste would be managed as if it were mixed
waste.] Once the waste is disposed of at WIPP, there will be no way to
inspect and identify which waste is emitting which VOC. If the non-mixed
waste information is not included in the WWIS, it will be impossible to
guarantee room limits using the WWIS. Without the non-mixed
characterization requirement in the Permit, it is unclear if the NMED would
have the authority to close a room of non-mixed waste if VOC concentrations
in that room exceeded the limits.
CRITICAL COMMITMENT BY THE DOE
If the DOE changes the Application now to reflect the fact that it does not
manage non-mixed waste in the same way as they manage as mixed waste, the
DOE would be changing the accuracy and completeness of the Application.
The Application has many places where the DOE says it will manage all waste
as if it is mixed waste. The Application also says that the underground
will be regulated as miscellaneous units.
The NMED has relied upon the DOE's statements that no waste would be
shipped to WIPP before the Final Permit was issued. George Dials, the
manager of the Carlsbad Area Office, stated in a letter dated February 14,
1994 that the DOE would not send any waste to WIPP before a Permit was
issued. On May 18, 1998 the NMED first learned of the DOE's plans to send
the TA-55-43 waste to WIPP before a final Permit was issued. The DOE's
announcement was made on the Monday following the Friday the second draft
Permit was issued. If the NMED had known of the DOE's change before the
draft Permit was issued, the NMED would have had many questions. The NMED
could have ordered the DOE to resubmit a new revised Application that would
have accurately reflected the DOE's intentions. In the alternative, the
NMED could have requested more information or even denied the Permit if the
NMED believed that the DOE had knowingly given false information. Because
the DOE's announcement came after the draft was issued, it became public
comment instead of any of the above. The DOE's intention to ship non-mixed
waste before a final Permit is issued is an attempt to subvert the public
comment process. The DOE's announcement bypassed the right of the public
to comment on the DOE's proposal to ship non-mixed waste to WIPP. The
DOE's announcement necessitates a major modification of the Application.
The DOE's commitment to manage all the waste as mixed waste is critical and
key to all of the assumptions that went into making the draft Permit. The
DOE's change in its commitment could cause NMED to deny the DOE the Permit.
The DOE's Comment 155 appears to be a conditional objection to the
prohibition of non-mixed waste that is not characterized in accordance with
the WAP. The DOE wants the statement in Module IV.B.2.b to read that
non-mixed waste shall be characterized in a manner that "substantially
complies" with the WAP. The NMED will not agree to this because such a
statement is vague and unenforceable. The WAP requires full compliance,
not substantial compliance.
AUDIT AND SURVEILLANCE PROGRAM
The DOE wants the NMED to approve the final audit report within 30 days of
it issuance. If the NMED does not respond within the 30 days, the DOE
proposes that the final audit report will be deemed approved by the NMED.
The regulations do not require a time frame for the NMED's approval. It is
not clear how much information the NMED would have to review in order to
approval the final audit report. Thirty days is not a reasonable time
frame. The EPA has taken 8 or more months to approve similar reports. The
NMED may have financial or personnel restraints that make it impossible to
meet the DOE's suggested time frame.
HIGHLIGHTS OF CROSS-EXAMINATION OF MR. ZAPPE:
The NMED's letter to George Dials, the WIPP Manager, of June 27, 1996
states that there does not need to be a Permit modification for suggested
revisions and additional information.
The NMED was vaguely aware that the DOE might dispose of non-mixed waste at
WIPP before the Permit was issued, at that time, by October 1997. However,
the Application still stated in many places such phases as "[o]nce the WIPP
facility has obtained a hazardous waste permit, the facility will be used
for the permanent disposal of TRU waste, including TRU mixed waste
containing hazardous constituents regulated under the HWA." The Permit was
issued the DOE would use WIPP to dispose of transuranic waste and
transuranic mixed waste. The Permit does envision disposal operations
continuing for non-mixed waste if a Permit has been issued but not renewed.
However, this is after the initial issuance of a Permit.
The May 18 letter was the first instance of the NMED receiving information
that a specific waste stream from a specific site would come to WIPP with
or without a Permit. This letter was not part of the administrative
record. The letter was related to a non-permitting issue (enforcement) so
Mr. Zappe did not consider it as a part of the Permit. The NMED considered
the public comments received.
Even if the non-mixed waste were characterized to the requirements of the
draft Permit Waste Analysis Plan (WAP), it would not be sufficient. No
Permit has been issued. The WAP in the draft Permit may be ultimately
different from the final permit WAP. The DOE cannot characterize waste to
satisfy the language of IV.B.2.b until the issuance of the final Permit.
If the DOE disposes of non-mixed waste at WIPP before a final Permit is
issued, the DOE could be subject to enforcement action. Under some
circumstances the NMED can regulate non-mixed waste if it is being disposed
of in a RCRA permitted facility.
The EPA will do numerous inspections at the DOE generator sites and at
WIPP. There is no indication that the EPA records are relevant to the RCRA
waste. The WIPP facility is already regulated as a waste generator under
RCRA. The NMED has inspected the facility as a generator of hazardous
waste only. [For example, the waste generated from the lead-contaminated
water is covered by RCRA, waste generation from the construction and other
activities on-site.] These inspections do not extend to any proposed
disposal operations covered in the Permit.
In 1980 the EPA interpreted its financial assurance rules to state that the
government can guarantee its own financial assurance. EPA's interpretation
assumed that state and federal facilities would always have adequate
resources. Now, 20 years later, the DOE is claiming they do not have
adequate funding for clean-up. The DOE has attempted to claim that since
the DOE is exempted from financial assurance requirements, their
contractor, Westinghouse's Waste Isolation Division (WID) should be too.
The EPA's regulations exempt only the state and the federal government, not
private entities. The EPA clearly defers to the state to decide if the
operator must prove financial responsibility. Again, there is some
question if the DOE is financially secure.
The NMED believes external regulation of non-mixed waste is a critical
issue. There is an inherent conflict of interest between the DOE's mission
and its self-regulation of safety. This conflict is aggravated by a long
legacy of secrecy which is at the root of many of the safety problems and
contamination at the DOE facilities around the country.
The NMED changed the language found in IV.B.2.b [from "identical to" to "in
accordance with"] after the DOE's January 1999 submittals. This is not a
new NMED policy. It has been NMED's position that non-permitted waste is
prohibited in the Permit. In II.C.3, the Treatment, Storage and Disposal
Facilities (TSDF) Waste Acceptance Criteria (WAC) lists prohibitions on
wastes not characterized to the WAC/WAP. The NMED has always intended to
guarantee that no prohibited waste is disposed of at WIPP. The NMED has
the discretion to enforce this matter as they see fit. In fact, new
permittees are usually prohibited from even constructing a facility without
a permit. The NMED determines if the facility design can protect human
health and environment, before the facility is constructed. This
requirement is part of the RCRA regulations. Yet, WIPP was constructed
without a permit.
The Land Withdrawal Act (LWA) requires the DOE to comply with the Solid
Waste Disposal Act (SWDA), which includes RCRA. The NMED has interpreted
this requirement to mean that WIPP must have a permit. The LWA states many
times that the DOE must comply with the Solid Waste Disposal Act. In
addition, applicable state authority makes it clear that the DOE must
comply with RCRA at WIPP.
In August of 1993 the NMED issued a draft permit for the test phase. Less
than 2 months later the DOE changed their policy and dropped the test phase
The NMED issued the revised first draft Permit on November 13, 1998 based
on the public comments it received. The question was asked, "Why did the
NMED incorporated one comment and not another?" The NMED's criteria were
the compliance of the comments with the regulations and if the comments
were consistent with the policy of the NMED. Except for what is found in
the fact sheets and the Permit itself, the NMED's comment policy for the
WIPP RCRA Permit is unwritten. When the final Permit is issued, the NMED
will respond to all comments. Most changes to the Permit were made as a
result of comments by the Applicants because the DOE made the most comments.
The May 1998 draft Permit had several pages discussing the ground control
program at WIPP. Most of the ground control program was stricken from the
second draft. This ground control program revision was made in response to
a comment received.
The authority of the Mining Safety and Health Administration (MSHA) at WIPP
is not related to RCRA. MSHA's regulatory authority will not prevent roof
falls at WIPP.
The final Permit will be issued to a defensible legal, technical and
In the first draft permit, there was language in II.C.3 referring to a
treatment standard that was deleted in the second draft. That language was
originally included because there was language in the Application which
stated that waste would either be treated to standards for land disposal or
would be covered by a No Migration Exemption. However, Congress amended
the Land Withdrawal Act in 1996 and exempted WIPP from treatment standards.
The intent of changing IV.B.2.b language from "in a manner identical to
requirements of the WAP" to "in accordance with the WAP" is to make it
consistent with the Application where all the waste is described as
characterized in accordance with the WAP. There is a problem with the word
"identical." It is a more difficult word in which to ensure compliance.
NMED's suggested language, "in accordance with," is not more vague than
Once a drum of waste is placed underground at WIPP, it is considered
disposed of. The regulations do not address moving or removing a drum
after that. The NMED does not see the TA-55-43 waste stream as an
enforcement issue. The NMED does not see the TA-55-43 waste stream as part
of the Permit process. It is highly unlikely that the TA-55-43 waste is
characterized to what the final WAP will be since final WAP has not been
issued. If the DOE intends to ship waste before a Permit is issued, the
accuracy and completeness of the DOE's Application is in question. There
is no evidence in their Comments or on the record reflecting their intent
to ship the TA-55-43 waste to WIPP without a permit.
The remote-handled (RH) waste bay is not authorized for RCRA activities.
Any use of this bay would require a Permit modification.
It is NMED's intent, through its permitting process, that the WWIS be
required to provide complete and accurate data on each waste drum shipped
to WIPP. The NMED has concerns that the NMED will not have access to the
WWIS. The NMED's access to the WWIS will also allow access to the public,
just as with all of the NMED's records. However, access to the WWIS will
not be like typical public access to written documents. The NMED has not
considered procedures for public access to the WWIS. The WWIS will reside
in an individual computer. The only access will be through that computer.
The Land Withdrawal Act prohibits non-defense wastes at WIPP. The
Applicants, in their Application, made statements supporting the
non-defense waste prohibition. There are no prohibitions in the draft
Permit modules for non-defense waste. [The TA-55-43 waste was generated
from the production of plutonium battery packs for NASA's Cassini mission -
a non-defense space mission producing non-defense waste.]
Westinghouse may be under new ownership soon. Westinghouse has notified
the NMED of the intent of Columbia Broadcasting System (CBS) to sell WID.
The NMED has not received a final notice of transfer. There would probably
have to be a Permit Modification on the new ownership. The NMED would
probably want the same disclosure information as before.
A letter from Keith Klein, the acting manager of the Carlsbad Area Office,
to Chris Wentz, dated March 12, 1999 was introduced. The letter states
that the DOE will ship the first non-mixed waste from LANL to WIPP by March
26, 1999 and will ship 1 truckload to WIPP every week for the next 16
weeks. Mr. Zappe had never seen the March 12, 1999 letter before. He said
it was inconsistent with George Dial's 1994 letter stating that the DOE had
no plans to ship waste to WIPP without a Permit.
Mr. Zappe was asked if, considering Westinghouse's record of over 300
environmental violations, there was any limit to how bad an applicant could
be before they were denied a Permit. There are provisions in the Hazardous
Waste Act to deny the Permit if there is a history of willful disregard of
environmental laws. However, the NMED has not developed any formal
procedure to use in evaluating whether an Applicant should be denied a
Permit under these provisions.
If the Permit is issued and WID is sold there would have to be a Class 1
modification. A Class 1 modification requires prior agency approval and
public notification. There are no provisions providing the public with the
opportunity to comment on the modification, or for a hearing.
A question was asked regarding how the agencies complied with the
Environmental Justice requirements. The DOE and the EPA are federal
agencies and receive federal funds. As such, these federal agencies are
required to follow the President's Environmental Justice Executive Order
No. 23898, dated February 11, 1994. [The Executive Order requires each
federal agency to "make achieving environmental justice part of its mission
by identifying and addressing, as appropriate, disproportionately high and
adverse human health or environmental effects of its programs, policies,
and activities on minority populations and low-income populations in the
United StatesS."] The NMED was asked what provisions it has made to follow
this Executive Order with respect to regulating the DOE. The DOE objected
to the question. Mr. Zappe stated that he did not know what driver would
be in the Permit to include this issue. The Hearing Officer sustained the
objection. As a result, Mr. Zappe did not answer the environmental justice
question. [It is EPA's policy to follow the principles of environmental
justice when regulating under RCRA.]
A bar-coding system is used to keep track of waste containers. Each drum
has a barcode, which is recorded in the WWIS. The barcode is checked after
the TRUPACT-II is opened at WIPP. There are no requirements to post
barcodes outside of each room underground. The WWIS contains a record of
where each drum of waste has been emplaced. [The DOE proposes to locate
the WWIS database on a single computer, thus limiting access to these
location records.] Information concerning the panel, room, column number
and column height are available on the WWIS.