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Will the WIPP "Monster Mod" be Tamed?

For more than 30 years, three conflicting goals have periodically clashed regarding the world’s first nuclear weapons waste disposal site – the Waste Isolation Pilot Plant (WIPP). Federal officials have wanted to hurry up and get waste into the ground. Local officials in Carlsbad, near the designated dump site for transuranic (plutonium-contaminated) waste, have wanted more federal money to provide more than 800 - 1,000 jobs at WIPP. Citizens concerned about health and environmental problems have advocated that rigorous safety standards be applied and enforced on all aspects of the mixed radioactive and hazardous waste at WIPP and at the more than two dozen sites around the nation where the weapons waste was generated or stored.

On November 23, 2005, those three forces began the latest phase of the on-going struggle, as the New Mexico Environment Department (NMED) issued a draft permit to change many aspects of the WIPP operating permit based on the Department of Energy (DOE) permit modification request. Crtics dubbed the DOE request the "monster mod" because of its size -- more than 1,100 pages, its scope -- re-writing major parts of most of the permit, and its substance -- substantially loosening the health and safety requirements while dramatically increasing the lethality of the waste coming to WIPP.

The “monster mod” combines three DOE modification requests to the WIPP operating permit that were opposed by many people and rejected by NMED. In a sharp reversal of its previous rulings, the draft permit included most of the major items of the "monster mod," including virtual elimination of chemical and physical analysis of waste containers before they can be shipped to WIPP, allowing highly radioactive remote-handled (RH) waste, and more than quadrupling the amount of waste allowed to be in the surface storage areas.

What happens this year with the "monster mod" will substantially affect WIPP and its safety. But it could also indicate how the state will respond to and what safety and public involvement requirements will be used in the inevitable future attempts to expand WIPP’s mission to high-level and commercial waste and to undermine legal requirements that permit changes must be technically justified and subject to extensive public participation.

BACKGROUND

Federal and state regulations include as core requirements “a detailed chemical and physical analysis of a representative sample of the wastes” before shipment to any disposal site. Such waste characterization is essential to determine the content of the waste being disposed since the containers are not opened at the dump site. In the permit issued in 1999, NMED implemented the requirement by mandating that virtually 100 percent of the contact-handled (CH) waste containers have chemical and physical analysis before shipment to WIPP and prohibited RH waste because DOE was unwilling to do sampling and analysis of those wastes.

The chemical analysis is by sampling headspace gas or extracting a portion of solid or soil and gravel waste to determine the concentration of volatile organic compounds (VOCs) and verify which of dozens of chemicals are present. Those chemicals include solvents, toxics, and other materials that can be dangerous to human health. Physical analysis includes radiography or visual examination (VE). Radiography is an x-ray technique to determine what materials are inside the container, while VE involves opening the container to examine the contents.

DOE and its WIPP contractor (now Washington TRU Solutions) included some headspace gas or solids sampling and radiography/VE in its permit application in 1995. The four-year permitting process included extensive review of permit drafts and in 1999, 19 days of testimony by technical witnesses, comments from more than 100 individuals, a transcript and exhibits exceeding 10,000 pages, and the full administrative record of hundreds of thousands of pages. That process demonstrated the need for virtually 100 percent of containers to be subjected to such sampling and analysis, more extensive than most hazardous waste disposal facilities, because of the great heterogeneity of the CH wastes. Because hundreds of thousands of CH containers served as trash cans of the nuclear weapons complex, each one was different. Thus, it is virtually impossible to find containers that included the “representative sample” of drums from the same “waste stream” – a process by which the same wastes are generated for dozens to thousands of containers.

Headspace gas or solids sampling does not measure all VOCs in a container, but those techniques provide some quantification of VOCs to ensure that the limits of VOCs in underground disposal rooms at WIPP would not exceed permit limits to protect worker and public health. Each waste container must be vented so that VOCs or gases do not build up and explode during storage, shipment, or disposal. Similar containers, including some with transuranic waste destined for WIPP, have exploded at various DOE sites. Consequently, the continuous venting helps prevent such explosions, but it also releases chemicals that could endanger workers at storage of disposal sites or the public while being transported.

Physical analysis is to ensure that items prohibited from WIPP that could be in some waste containers are not shipped to the site. The permit prohibits liquid wastes and limits liquids inside smaller containers to one inch in the bottom and less than one percent of the container volume. Also prohibited are pyrophoric materials; explosive and compressed gases; ignitable, corrosive, and reactive wastes; as well as chemically incompatible wastes.

Because DOE had virtually no characterization information for more highly radioactive wastes and did not want to carry out visual examination, commentors opposed and NMED prohibited any RH waste in the 1999 permit. While CH waste has 200 millirem per hour or less radioactivity on the container surface, RH waste can have thousands of times more radioactivity and is too hot for workers to handle without extensive shielding. By the federal WIPP Land Withdrawal Act, five percent of RH containers may have a surface dose rate between 100 rem and 1,000 rems per hour – doses that would kill a person that came in contact within minutes or hours. The remaining RH containers surface radiation dose levels can be between 200 millirem per hour and 100 rems per hour.

Permit modification requests by DOE to reduce the characterization requirements or open containers and do some characterization at WIPP were strongly opposed by the public and turned down by NMED. DOE then asked the National Academy of Sciences (NAS) to review and support its plans for reduced waste characterization. After conducting its study, the NAS panel concluded that it could not support any specific changes in waste characterization requirements.

The Panel found:

Finding 1: DOE has stated that some characterization activities are too expensive and time consuming and can be modified without increasing risks while reducing characterization time and costs. However, DOE has not presented a systematic analysis to support this argument to the regulator or to the public. Although DOE has performed analyses of many aspects of operations related to WIPP performance, including transportation, the committee could find no studies that explicitly, systematically, and quantitatively link its waste characterization program to risks to the public, workers, or the environment. National Research Council, 2004. Improving the Characterization Program for Contact-Handled Transuranic Waste Bound for the Waste Isolation Pilot Plant.

The NAS Panel recommended:

Recommendation 1: DOE should use a systematic and quantitative approach to determine the value of the information currently obtained by its waste characterization activities and the impact of changes to them. This approach should also be used to support permit modification request and communicate with the public.

Meanwhile, in 2003 and 2004, Sen. Pete Domenici (Republican of New Mexico) added a provision to annual appropriations bills to try to force changes in the WIPP permit to eliminate chemical sampling of each container and measure VOCs in the underground disposal area. (See Voices, Spring 2004 and Winter 2004.) NMED Secretary Ron Curry and New Mexico Governor Bill Richardson publicly opposed the Domenici provision. And on December 30, 2004, NMED rejected the DOE modification request that it based on the Domenici's language. In June 2002, DOE had requested RH waste, which NMED rejected on March 5, 2003.

Local officials in Carlsbad continued lobbying Governor Richardson to support the Domenici provision to allow “confirmation” at WIPP because it would create up to 250 jobs. After a meeting on January 25, 2005 with the governor, Carlsbad officials reported that the governor agreed to support the proposal.

“MONSTER MOD” REQUEST
After discussions with NMED in early 2005, DOE submitted a permit modification request on April 29, 2005. In its rush to submit the request, there were numerous typographical mistakes and inconsistencies, so on June 10, 2005, a revised modification request was submitted to NMED.

In its request, DOE proposed to eliminate all chemical sampling and physical analysis for both CH and RH waste if it and NMED deemed that acceptable knowledge (AK) records were sufficient. In cases where AK was deemed inadequate, instead of 100 percent headspace gas sampling required by the permit, sampling of only five containers in each waste stream would be done. The request included monitoring in underground rooms to measure VOCs to determine that permit limits were not exceeded. Physical analysis would be done as “confirmation,” preferably at the WIPP site, in which at least one randomly selected container in each shipment would be checked by looking at videotapes of radiography or VE. To provide enough space to carry out confirmation, “staging” areas would be established inside the Waste Handling Building (WHB) where shipments are received and in the outside Parking Areas. The request stated that in the unlikely event that prohibited items were discovered during confirmation, the shipment could be sent to another DOE site.

More than 1,500 individuals opposed the request, NMED itself had not approved the previous requests because the legal and technical requirements were not met and because the Domenici provision had not changed federal or state waste characterization standards, and DOE still had not issued the comprehensive analysis recommended by the NAS. Nonetheless, the draft permit includes most of the major "monster mod" provisions.

The major difference from the DOE request was that the draft permit allows “confirmation” only at the generator/storage site, not at WIPP. NMED stated that it was not yet willing to allow such activities at WIPP because the necessary details as to how “non-compliant” waste could be sent to another site was not provided. Nonetheless, the draft permit adds 640 cubic feet of CH waste storage inside the WHB and increases by more than four times (from 12 to 50) the number of CH packages in the outside parking area as well as providing WHB and parking area space for RH waste.

Like DOE with its request, NMED also seemed in a hurry to have the draft permit approved. It noticed only a 60-day public comment period and scheduled a public hearing to begin on March 8. On January 11, 2006, Southwest Research and Information Center (SRIC) requested at least a 60-day extension on the comment period because the administrative record to support the draft permit was still not available. In response, the NMED Secretary granted a 30-day extension.

In joint comments on February 22, SRIC and Concerned Citizens for Nuclear Safety (CCNS) strongly opposed the draft permit and requested negotiations as required by NMED regulations rather than proceeding with a public hearing. In response, NMED scheduled one day of negotiations for March 9 and noticed a two-week public hearing to begin on March 29 in Carlsbad. That location was requested by DOE, but the original hearing was mostly done in Santa Fe, which is much more convenient for most other hearing participants.

The SRIC/CCNS comments also pointed out that after almost seven years of operations about 35,000 cubic meters or about 20 percent of the facility’s capacity had been emplaced. Thus, hundreds of thousands of containers with up to 140,000 cubic meters of waste could come to WIPP if the "monster mod" procedures. Much of that waste had much less adequate AK records than the waste already shipped to WIPP. Most of the waste already emplaced was generated at the Rocky Flats Plant in Colorado, which has now completed shipping all its waste. Some of the remaining waste was generated at Rocky Flats and shipped in the 1970s to the Idaho National Lab and is to be shipped to WIPP. But the majority of the remaining waste will be from other sites, including Oak Ridge, Tennessee, a site that has not yet shipped any waste to WIPP. In addition to opposing the lesser characterization requirements for RH waste, the comments also raised major concerns about whether RH waste could be safely handled in the WHB and underground disposal rooms.

DOE’s comments mostly focused on changing the draft permit to allow waste confirmation at WIPP. The agency stated that even if prohibited items were discovered at WIPP, it could return the shipment to the DOE site after the Nuclear Regulatory Commission amended the shipping requirements. It commented that some of the requirements could be amended if necessary to allow shipments to another site. The Carlsbad Current-Argus newspaper editorialized in support of confirmation at WIPP, primarily because “it would create 200 jobs for the Carlsbad area.”

Extensive negotiations were held on March 9 and 10, among DOE, NMED, and various citizen groups and individuals. DOE’s lead lawyer in the case is Pete Domenici, Jr., son of the senator. On March 13, DOE, NMED, SRIC, CCNS, and Citizens for Alternatives for Radioactive Dumping (CARD) filed a joint request to postpone the public hearing because they had reached agreement on some issues and would continue negotiations. The negotiations have reduced the number of contested issues and might eliminate the need for a hearing if all issues were resolved. Additional public comment can be submitted to NMED until the public hearing ends. While negotiations continue, the hearing has been rescheduled for May 31 to June 9. If there is a hearing, a party could also appeal the final NMED decision to the New Mexico Court of Appeals.

There will be some substantial changes to the permit, as some aspects of the "monster mod" will be approved in the next several months. However, DOE has dropped its efforts to do confirmation at WIPP. It is also clear that strong public opposition will continue to highly radioactive waste and major weakening of the health and safety standards. The DOE will undoubtedly continue its history of asking for substantial changes, even to permit provisions that it once supported. What seems less clear is the position of the state of New Mexico on future changes, including whether it responds to public opposition, or to pressure from DOE to put waste in the ground and from Carlsbad's desires for more jobs.

FOR MORE INFORMATION:
The NMED website has the draft permit, public comments, and information about the hearing process. http://www.nmenv.state.nm.us/wipp/index.html

The WIPP website includes the permit modification request and other materials. http://www.wipp.energy.gov/rcradox/rfc/com_menu.htm

The SRIC website includes other information about WIPP. http://www.sric.org/nuclear/nuclear2.php