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Letter to New Mexico Environment Department, RE: Deadlines for pending Class 3 modification January 11, 2005

See NMED's Response here.

Mr. James P. Bearzi
NMED Hazardous Waste Bureau
2905 Rodeo Park Drive East, Building 1
Santa Fe, NM 87505

Dear James,

As you know, Southwest Research and Information Center (SRIC) has been actively involved in the permitting process for the Waste Isolation Pilot Plant (WIPP), including commenting and party status in the permit hearing in 1999, commenting on all major modification requests to the permit, as well as commenting on some of the class 1 and class 1* requests. Thus, we are very interesting in commenting on the pending Class 3 modification, Public Notice No. 05-16.

However, because of the lack of availability of the administrative record, we are unable to adequately comment on the draft permit. Thus, we request at least a 60-day comment period from the time that notice is published that the administrative record is publicly available.

SRIC is very interested in the substantive aspects of the draft permit and its impacts on public health and the environment. We also are very interested in the process by which the Department makes its decision regarding the permit, and our due process rights and those of other persons and organizations who have expressed an interest in the permit modification request. As you know, SRIC and more than 1,500 individuals and other organizations have expressed their opposition to major provisions of the permittees' modification request that is the basis for the draft permit, and expect to participate in the process.

Public Notice 05-16 of November 23, 2005 states: "The entire administrative record for this administrative action may be reviewed at the Hazardous Waste Bureau at above address." at 2. However, the administrative record was not available on November 23, and still is not available. Not even the index to the administrative record is available to SRIC or other members of the public. On December 28, 2005, SRIC inquired of you via email as to the availability of the administrative record. You responded via email on that date that the index "will be available by the end of next week." On Monday, January 9, 2006, I called you about the status of the administrative record, but you said that the index was not yet available, and you expected that I would receive it via email by Tuesday, January 10. It is now January 11, and SRIC still has not received the index for the administrative record.

As you know, public comments are due on January 23, less than 10 working days from now. For SRIC and other members of the public to adequately comment on the draft permit, we must have full access to the administrative record, in addition to the draft permit and permit modification request. The administrative record is the evidentiary basis for the proposed draft permit, and the evidentiary basis for judicial review of the Department's decision to issue a final permit. Indeed, the Department acknowledges the centrality of the administrative record to public comments. The Public Notice states: "Written comments shall be based on all reasonably available information and include, to the extent practicable, all referenced factual materials. Documents in the administrative record need not be re-submitted if expressly referenced by the commentor." at 3.

Further, because there have been previous permit modification requests that are somewhat similar to the June 10, 2005 request, it is important to know what NMED considers to be included in the administrative record. Commenters need to know what earlier comments (on similar modification requests) and data are deemed to be part of the administrative record related to the Public Notice.

Clearly, SRIC and other members of the public cannot reference documents in the administrative record when that record is not available. Due process requires that all documents be available to the public at the beginning of the public comment period so that we can evaluate the evidentiary basis for the proposed draft permit, prepare the written comments that the Public Notice requires, and determine whether to request a public hearing. Quite simply, the administrative record must be available at the beginning of the public comment period so that we can participate in this process as authorized by law.

Because of the volume and complexity of the more than 1,100-page draft permit, the Department recognized that a substantial public comment period was necessary. Accordingly, the Department determined that a 60-day comment period was needed when it issued the Public Notice on November 23, 2005. SRIC continues to believe that a longer comment period is appropriate, given the history of the permitting process (in 1998 and 1999 the Department provided 90 and 67 day public comment periods on the draft permit), the complexity of the many changes to virtually every Module and Attachment included in the draft permit, and the fact that the current comment period includes the Thanksgiving, Christmas, and New Year's holiday seasons. In this light, SRIC strongly objects to the Department's foreshortening of the public comment period to less than 10 working days by its failure to make the administrative record available when the public notice was published.

Rather, since the draft permit proposes changing many of the major provisions of the permit, SRIC believes that a comment period longer than 60 days should be required, once the administrative record is available. At a minimum, SRIC requests at least a 60-day comment period from the time that public notice is published that the administrative record is available.

SRIC is well aware of the Department's often stated position that public participation is essential to its work, in addition to the legal due process requirements provided by state and federal statutes and regulations related to the Resource Conservation and Recovery Act and the New Mexico Hazardous Waste Act. Thus, we trust that you will understand and support our request that the administrative record must be available for the complete 60 day (or longer) public comment period.

Given the extremely brief time remaining to prepare public comments and request a public hearing, please advise us of the Department's decision on this request at the earliest possible time. We also urge the Department to publish public notice of the availability of the administrative record to ensure that other members of the public are accorded their legal rights to participate in this process.

Thank you very much for your favorable consideration of this request.


Don Hancock

See NMED's Response here

For further information contact us at sricdon@earthlink.net or call (505) 262-1862, fax: (505) 262-1864.


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