October 19, 2000

Dr. Inés Triay, Manager
Carlsbad Field Office
Department of Energy
P.O. Box 3090
Carlsbad, New Mexico 88221-3090

Mr. Joe Epstein, General Manager
Westinghouse Waste Isolation Division
P.O. Box 2078
Carlsbad, New Mexico 88221-5608

RE: Comments on Centralized Waste Characterization Permit Modification Request, July 21, 2000
WIPP Hazardous Waste Facility Permit
EPA I.D. Number NM4890139088

Dear Dr. Triay and Mr. Epstein:

On July 25, 2000, the New Mexico Environment Department (NMED) received a letter from DOE and Westinghouse (the Permittees) dated July 21, 2000, transmitting a Class 2 permit modification request seeking approval for waste characterization activities at WIPP under the facility's Hazardous Waste Permit. The Permittees provided public notice of the permit modification request on July 28, 2000, in compliance with NMAC (incorporating 40 CFR §270.42(b)(2)). At the conclusion of the public comment period on September 26, 2000, NMED had received 85 pages of comments from 27 commentors, as well as 589 postcards from individuals responding to a mailing from a coalition of New Mexico activist groups. On September 5, 2000, NMED issued a denial of the temporary authorization request that had accompanied the original modification request, citing as one reason for the denial that "the modification request is both administratively incomplete and technically inadequate compared to the standards specified in NMAC (incorporating 40 CFR §264)."

On September 29, 2000, the Permittees withdrew the Class 2 permit modification request, stating their intention to submit a revised Class 2 modification request on the same subject on or about October 9, 2000. At the time of the withdrawal, NMED was developing a letter of denial in accordance with NMAC (incorporating 40 CFR §270.42(b)(6)(i)(B)). Since the withdrawal, the Permittees have verbally agreed to delay submittal of a revised modification request until after receipt of NMED's comments on the original modification request. These preliminary comments, as attached, would have formed the basis for NMED's denial of the request to perform waste characterization activities at WIPP if the Permittees had not withdrawn their request.

NMED is deeply concerned that the Permittees intend to submit the revised modification as a Class 2 modification request. There are several criteria in the regulations that make it obvious that this proposal to characterize waste at WIPP should be a Class 3 modification:

20 4.1.900 NMAC (incorporating 40 CFR §270.42(b)(6)(i)(C)(2)) - The complex nature of the change requires the more extensive procedures of Class 3

20 4.1.900 NMAC (incorporating 40 CFR §270.42(d)(2)(iii)) - Class 3 modifications substantially alter the facility or its operation

The proposed language changes in the modification request were pervasive throughout the waste characterization portions of the permit, raising a series of complex issues and questions as identified in the attached comments. The request to receive partially characterized waste at WIPP represented a substantial, fundamental change in the operations of the facility from what was presented at the public hearings held on the permit in 1999 and as embodied in the current permit. In addition, even an approvable Class 2 permit modification may be required to be processed as a major modification where there is significant public interest, as specified in the Hazardous Waste Act and the regulations at NMAC (incorporating 40 CFR §270.42(b)(6)(i)(C)(1)). It is difficult to minimize or dismiss the level of public interest expressed over this proposed modification.

Further, one of the reasons the Permittees determined to withdraw the modification request was based upon verbal comment made by NMED staff as stated in your September 29, 2000 withdrawal letter. These verbal comments were intended to inform the Permittees about the potential procedural problems and unnecessary delays that might result from a misclassified permit modification. Submitting a modification request as a Class 3 ensures that a potentially deficient submittal can be dealt with through the notice of deficiency process before NMED issues a draft permit for public comment.

Please consider the attached comments as preliminary agency review that is neither complete nor exhaustive. They were prepared to provide the Permittees with timely feedback, and do not incorporate public comment. Any future submittal by the Permittee should minimally address these deficiencies and, as appropriate, public comment. If you have any questions regarding this matter, please contact Steve Zappe of my staff at (505) 827-1560, x1013.


James P. Bearzi
Hazardous Waste Bureau


cc: Paul Ritzma, NMED
Greg Lewis, NMED
John Kieling, NMED HWB
Steve Zappe, NMED HWB
Susan McMichael, NMED OGC
David Neleigh, EPA Region 6
Connie Walker, TechLaw
File: Red WIPP '00