Certified Mail - Return Receipt Requested

August 30, 2001

Dr. Inés Triay, Manager                                          Mr. John Lee, General Manager
Carlsbad Field Office                                              Westinghouse TRU Solutions, LLC
Department of Energy                                              P.O. Box 2078
P. O. Box 3090                                                      Carlsbad, New Mexico 88221-5608
Carlsbad, New Mexico 88221-3090

RE: Final Determination, Ten-Drum Overpack Volume Class 2 Modification Request, and Rejection of Class 1 Modification
WIPP Hazardous Waste Facility Permit
EPA I.D. Number NM4890139088

Dear Dr. Triay and Mr. Lee:

The New Mexico Environment Department (NMED) hereby denies the above referenced Class 2 permit modification request to the WIPP Hazardous Waste Facility Permit, as submitted to the Hazardous Waste Bureau in the following document:

  • Request for Class 2 Permit Modifications, Letter Dated 5/1/01, Rec'd 5/2/01
  • The Department of Energy Carlsbad Field Office and Westinghouse TRU Solutions LLC (the Permittees) identified two separate modifications in their submittal: Ten-Drum Overpack (TDOP) Volume - Class 2, and Drum Age Criteria (DAC) - Class 2. This letter addresses the TDOP Volume modification, which was processed by NMED in accordance with the requirements specified in NMAC (incorporating 40 CFR §270.42(b)), and a related Class 1 modification processed under NMAC (incorporating 40 CFR §270.42(a)). The bases for the rejection of the Class 1 modification and the denial of the Class 2 modification are addressed below, while NMED's general comments on this proposed permit modification are in Attachment 1.

    The TDOP Volume Class 2 modification request is based in large part on a Class 1 modification "Item 2.d" contained in the Permittee's July 20, 2000 submittal to NMED. This change proposed modifying the text to include additional allowable waste containers, including the direct loading of ten-drum overpack containers and 85-gallon drums (rather than just using them as overpack drums), and the addition of 100-gallon drums. NMED hereby rejects this Class 1 modification under NMAC (incorporating 40 CFR §270.42(a)(1)(iii)) because it is not a non-substantive change.

    Further, Item 2.d of the Permittee's July 20, 2000 submittal does not meet the definition of "equipment replacement or upgrading with functionally equivalent components" specified in NMAC (incorporating 40 CFR §270.42) Appendix I.A.3. Examples of non-substantive changes provided by EPA in the preamble to the permit modification final rule (53 FR 37914-15, September 28, 1988) include "…correction of typographical errors; necessary updating of names, addresses, or phone numbers identified in the permit or its supporting documents; upgrading, replacement, or relocation of emergency equipment; improvements of monitoring, inspection, recordkeeping, or reporting procedures; updating of sampling and analytical methods to conform with revised Agency guidance or regulations; updating of certain types of schedules identified in the permit; replacement of equipment with functionally equivalent equipment; and replacement of damaged ground-water monitoring wells." The underlying modification clearly does not meet this standard of simplicity for Class 1 modifications, and the Permittees are directed to comply with the original permit conditions as required by NMAC (incorporating 40 CFR §270.42(a)(1)(iii)).

    As a consequence of NMED's rejection of Item 2.d of the July 20, submittal as a Class 1 modification, the proposed Class 2 TDOP Volume modification has no basis and is therefore denied. Because the proposed volume increase was based upon direct loading of TDOPs, and direct loading of TDOPs is precluded by denial of the inappropriate Class 1 modification, no changes can be made based upon the proposed Class 2 TDOP Volume modification.

    These two submittals are inextricably linked, such that NMED could not simply grant the capacity increase while denying the remaining portions of the Class 2 modification. NMED suggests that the Permittees submit a complete modification request embodying the aspects of all proposed modifications to date as well as relevant public comment. NMED advises the Permittees that such a submittal might be considered a Class 3 modification if the total increased capacity exceeds 25% of the existing, approved capacity of the facility.

    This TDOP Volume modification request was subject to a sixty (60) day public comment period, which ran from May 8, 2001 through July 6, 2001. NMED received written comments on the TDOP Volume modification request from nine individuals and organizations during this time. The list of commentors and NMED's responses to these comments are incorporated in the following attachments:

    · Attachment 2 is a list of commentors, their affiliation, the date their comment was received, and the number of pages of comments.

    · Attachment 3 is a spreadsheet providing NMED's direct response to each comment submitted. This document will be mailed to each individual commentor. Only TDOP comments are included on this spreadsheet.

    NMED will also develop a general summary of the permit modification request, the typical comments received, and NMED's general response to those comments. This document will be mailed to all other individuals and organizations on NMED's WIPP facility mailing list within seven days of this decision to inform the public of NMED's actions on these permit modifications.

    If you have any questions regarding this matter, please contact Steve Zappe of my staff at (505) 428-2517.


    Gregory J. Lewis
    Water and Waste Management Division



    cc: Paul Ritzma, NMED
    James Bearzi, NMED HWB
    John Kieling, NMED HWB
    Steve Zappe, NMED HWB
    Susan McMichael, NMED OGC
    David Neleigh, EPA Region 6
    Connie Walker, TechLaw
    File: Red WIPP '01

    Attachment 1
    NMED General Comments on the TDOP Volume Permit Modification Request

    NMED Comments on the TDOP Volume Modification

    1. The change specified in the underlying Class 1 modification proposed changing the text to include additional allowable waste containers. The modification included the direct loading of ten-drum overpack (TDOP) containers, the direct loading of 85-gallon drums (rather than just using them as overpack drums) and the addition of 100-gallon drums. Under the permit, these types of containers are not authorized. The modification was not an administrative and non-substantive change. Moreover, there were several issues associated with the addition of large (TDOP, 85- and 100-gallon) containers. One issue regarded the perhaps unintentional increase in maximum storage capacity for the WHB and Parking Area Units, which the TDOP Volume Class 2 modification sought to rectify. Although "container equivalent" annotation is used in the Permit for information purposes, a Standard Waste Box (SWB) was generally assumed as the basis for deriving the maximum capacities listed in Tables III.A.1 and III.A.2. Another issue was the impact on the requirements for calculating secondary containment at the container storage areas. While these calculations were provided as part of the underlying modification, NMED had a responsibility to ensure that the public also has an opportunity to review and provide comment on these calculations. The Permittees did not include these calculations in any document that was provided for public comment.

    The numerous text changes in the underlying Class 1 modification should have also been checked to ensure consistent listing of the various configurations (3-, 4-, 7-packs, SWBs, TDOPs) for shipping, storage, etc., in each Permit Attachment. Again, the TDOP Volume Class 2 modification attempted to address this issue as well. A figure is necessary in Permit Attachment M1 depicting the 100-gallon container. Finally, many of the changes specified in the proposed text as redline/strikeout did not accurately reflect the current permit text to be changed (e.g., Items 2.d.1, 2.d.2, 2.d.5, etc.) primarily because this modification was submitted prior to NMED's August 4, 2000 rejection of previous Class 1 modifications.

    For the reasons stated above, NMED has therefore rejected this underlying modification as a Class 1 modification.

    2. NMED acknowledges that in its August 4, 2000 Administrative Completeness Determination letter, the agency did not directly raise concerns regarding the appropriateness of the classification for Item 4 in the Permittees' November 15, 1999 Class 1 notification, which also proposed direct loading of TDOPs and 85-gallon overpack containers. NMED expressed concern at that time that "… the submitted language was poorly written and presented…" However, NMED's silence at that time concerning the proposed modification as not meeting the Class 1 standards of being "non-substantive" in no way precludes the agency from making such a determination at a later date.

    3. NMED was unable to approve only a portion of the Class 2 TDOP Volume modification, because it was inextricably linked with the rejected underlying Class 1 modification. For example, approving only the storage capacity increase requested in the Class 2 modification would have had to rely primarily upon the secondary containment calculations found only in the Class 1 modification, which the public had no opportunity to review or comment upon. Furthermore, it would be impractical to provide the additional storage capacity without also providing an appropriate mechanism to achieve it (i.e., direct-loaded TDOPs) because the number of pallets or storage locations was not proposed to be increased at the same time.

    4. Although the Class 2 TDOP Volume modification addressed container storage capacity in the Waste Handling Building (WHB) Unit, it did not consider the need to also provide for increased storage capacity in the Parking Area Unit. In order to be consistent, the same assumptions made to calculate storage requirements in the WHB Unit should also be employed to calculate storage requirements in the Parking Area Unit.

    5. If the Permittees decide to submit another modification request addressing additional containers, new uses for existing containers, and the impacts on facility storage capacity, they should provide sufficient information to determine whether the modification would be considered a Class 2 or a Class 3 modification. This determination would be based upon calculations demonstrating the percent increase in the facility's container storage capacity, considering the impact on both the Parking Area Unit and the WHB Unit.