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New Mexico Says NO to High-Level Waste at WIPP

NEW MEXICO SAYS NO TO HIGH-LEVEL WASTE AT WIPP

On October 29, New Mexico Environment Department (NMED) Secretary Ron Curry [put in his picture] issued a modification to the Waste Isolation Pilot Plant (WIPP) permit so that wastes that have been stored in high-level radioactive waste tanks in Washington, South Carolina, and Idaho cannot come to WIPP unless they are approved in future modifications. The Secretary's action was in response to public comments on a permit modification regarding wastes in tanks at Hanford, WA; Savannah River, SC; and the Idaho National Engineering and Environmental Laboratory (INEEL) that was submitted by the Department of Energy (DOE) on July 2. (See the Fall 2004 issue of Voices for more background.)

In revising the DOE modification request, Secretary Curry stated: "This is a perfect example of how the permit modification process should work. The public's suggestion to include a concise list of the prohibited high-level waste tanks at DOE's Hanford, INEEL and Savannah River facilities was a good one. Free and open public comment has made this a stronger permit."

In its technical comments, Southwest Research and Information Center (SRIC) included a listing of the 243 tanks at Hanford, Savannah River, and INEEL that have been managed as high-level waste. SRIC's comments stated: "Since the permittees [DOE and Washington TRU Solutions] know which tanks have ever been managed as high-level waste, they should, at a minimum, include such a listing in the request so that there would be no ambiguity about which tanks are included (and any tanks that are not included) in the modification request.

Other groups also submitted technical comments, and more than 1,200 people sent in comment cards opposing high-level waste at WIPP, including any such waste or sludges that DOE "renames" to say that they can come to the New Mexico dump.

As revised by NMED, the WIPP permit now states:

Excluded waste - TRU mixed waste that has ever been managed as high-level waste and waste from tanks specified in Permit Attachment B are not acceptable at WIPP unless specifically approved through a Class 3 permit modification.

Permit Attachment B has a listing of 177 tanks at Hanford, 51 at Savannah River, and 15 at INEEL. A Class 3 modification is one, unlike the DOE request, that requires both a minimum 60-day public comment period and a formal public hearing, if anyone requests it. Thus, in the event that DOE does rename any of the waste to try to bring it to WIPP, there would be a significant opportunity for the public to again oppose that waste. While DOE can submit such modification requests, there is a 25-year history of very strong public opposition to such wastes as well as both Republican and Democratic state officials opposing those wastes.

CONGRESS ALSO ACTS ON TANK WASTES

While NMED was acting against DOE's policies of renaming tank wastes, at DOE's request and with the acquiescence of South Carolina and Idaho officials, Congress changed federal law regarding some wastes in tanks at Savannah River and INEEL. Section 3116 of the 2005 Defense Authorization Act, passed on October 9 and signed into law on October 28, allows DOE to rename waste that has been "high-level" to be "low-level" so that it can remain in the tanks. The complicated provision relates to "a covered State," which has "approved closure plans or permits issued by the State," and says that DOE must reclassify the wastes "in consultation with the Nuclear Regulatory Commission." Later, the "covered states" are identified as South Carolina and Idaho.

The specific nature of the "closure plans and permits" are not defined, nor is the Nuclear Regulatory Commission (NRC) role clear. The provision requires DOE to reimburse the NRC for "all expenses, including salaries" that it incurs in doing its consultation.

The law further states that renaming the wastes "shall not apply to any material otherwise covered by that subsection that is transported from the covered State." Thus, the waste can be renamed to be low-level, but it reverts to being "high level" if DOE tries to transport it to another state. Further, the law states that it does not establish "any precedent or is binding on the State of Washington, the State of Oregon, or any other State not covered."

FEDERAL COURT OF APPEALS DECIDES (SORT OF)

One reason that DOE wanted Congress to change the law was the July 2003 decision by a federal court judge in Idaho that the DOE renaming policy was illegal. DOE's appeal of the court decision was heard by a three-judge panel of the Ninth Circuit Court of Appeals in Seattle on October 5. On November 5, the panel issued its decision and reversed the district court decision, saying that it was "unripe." The judges decided that it was premature to make any ruling because DOE had not actually taken action to reclassify high-level waste and leave it where it is rather than take it to a geologic repository, as required by a 1982 federal law.

As a practical matter, the court decision likely relates only to Hanford, because the new federal law passed after the oral argument and before the decision changes the law that was before the district court and 9th Circuit as it related to South Carolina and Idaho.

VOTERS IN WASHINGTON STATE SAY NO TO MORE WASTE

Washington state officials declined to have their tank wastes included in the congressional renaming law. And on election day, almost 1.8 million Washingtonians (about 70 percent of those voting), supported Initiative 297, which stated, in part:

INTENT. The purpose of this act is to prohibit sites at which mixed radioactive and hazardous waste have contaminated or threaten to contaminate the environment, such as at the Hanford Nuclear Reservation, from adding more waste that is not generated from the cleanup of the site until such waste on-site has been cleaned up and is stored, treated, or disposed of in compliance with all state and federal environment laws.

So while South Carolina and Idaho will keep some of their tank wastes that otherwise could have been shipped out of state to a high-level waste repository (or perhaps to WIPP), Washington voters want their tank wastes disposed of in some other state. And they do not more nuclear waste to be brought to Hanford.

SENATOR DOMENICI ACTS AGAIN

In 2003, Senator Pete Domenici (R-NM) inserted a provision into the Energy and Water Appropriations Bill to support DOE's plan to reduce waste characterization requirements in the WIPP permit. (See Voices, Spring 2004, page 4.) In November, 2004, Sen. Domenici again put in a provision, with no public hearing, no consultation with NMED, and no clear rationale to try to further reduce NMED's authority. Presumably, DOE will soon submit a new permit modification to change the waste characterization requirements.

WHAT HAPPENS NOW?

What's certain is that the waste in the tanks at Hanford, Savannah River, and INEEL is very dangerous and will remain so for thousands of years.

It's virtually certain that the new Secretary of Energy will begin implementing the policy of leaving some wastes in the tanks at Savannah River and INEEL. How much waste that will be and what the affected states and citizens will say about particular tanks is less certain. It seems likely that some of the tank waste will remain classified as high-level and will be solidified in hopes that it will some day be taken to Yucca Mountain, if that repository ever opens.

It also seems likely that some of the INEEL tank waste, and perhaps some of the Savannah River waste, will be called "transuranic" and proposed for disposal at WIPP. If so, DOE will have to apply for a permit modification to allow such "excluded waste" to come to WIPP. If that happens, the next stage of public opposition in New Mexico will commence.

DOE has already said that some of the Hanford tanks have waste that is supposed to come to WIPP. Many New Mexicans objected to those wastes being included in the DOE Recertification Application to the Environmental Protection Agency (EPA). Sometime next year, EPA should issue its decision.

DOE would also have to apply for a WIPP permit modification to allow such "excluded waste" to come to WIPP. As already noted, such a request will begin another stage of public opposition to such waste.

Strong public opposition can also be expected to the Domenici-supported permit modification to reduce NMED's permitting authority and reduce the waste characterization requirements of the permit.