SUPPLEMENTAL FACT SHEET

Intent to Issue a Permit for the Operation of
A Hazardous Waste Storage and Disposal Facility under the
New Mexico Hazardous Waste Act

Waste Isolation Pilot Plant
Carlsbad, New Mexico


Facility Name: Waste Isolation Pilot Plant (WIPP)

EPA ID Number: NM4890139088

Location: The facility is located north of Jal Highway (State Highway 128) in Eddy County, New Mexico. The facility consists of 16 sections of Federal land in Township 22 South, Range 31 East. The WIPP site is located approximately 20 miles east of Loving, and 26 miles east of Carlsbad.

Owner: U.S. Department of Energy

Operators: U.S. Department of Energy
Westinghouse Electric Company, Waste Isolation Division


INTRODUCTION

The U.S. Department of Energy (DOE) and the Waste Isolation Division (WID) of Westinghouse Electric Company are required to obtain a final permit from the New Mexico Environment Department (NMED) to manage, store and dispose radioactive transuranic (TRU) mixed waste at the Waste Isolation Pilot Plant (WIPP) pursuant to the New Mexico Hazardous Waste Act (HWA) and the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976 (RCRA)(42 U.S.C.§§6901 et seq). Prior to issuing a final permit, NMED is required by law to issue a draft permit for public comment. 20 NMAC 4.1.901.A.3. NMED issued a draft permit on May 15, 1998 for a ninety (90) day public comment period. On November 13, 1998, NMED issued a revised draft permit for written public comment to be received prior to January 18, 1999. The revised draft permit incorporates public comment and notes all revisions to the prior draft in redline-strikeout. In addition, a public hearing is scheduled to receive oral public comment on February 22, 1999. This fact sheet supplements the previously published fact sheet regarding the revised draft permit and is intended to facilitate public review of the revised draft permit.

LEGISLATIVE BACKGROUND

In 1980, Congress authorized withdrawal of the WIPP site "for the express purpose of providing a research and development facility to demonstrate the safe disposal of radioactive wastes resulting from defense activities and programs of the United States." Department of Energy National Security and Military Applications of Nuclear Energy Authorization Act of 1980, Pub. 96-164, Section 213. In 1992, Congress authorized disposal at the WIPP facility of TRU waste in the WIPP Land Withdrawal Act. (LWA) Public Law 102-579, 106 Stat. 4777, as amended by the 1996 LWA Amendments, Public Law 104-201. In 1996, Congress amended the LWA to provide DOE an exemption from treatment standards and land disposal prohibitions promulgated under Section 3004(m) of the Solid Waste Disposal Act and land disposal prohibitions under that Act. Public Law 102-579, as amended.

The LWA provides a comprehensive environmental regulatory scheme for the operational and disposal phase of WIPP. The LWA requires DOE to: (1) obtain a State permit under RCRA prior to management, storage or disposal of radioactive mixed waste at WIPP and; (2) to comply with the U.S. Environmental Protection Agency's (EPA) compliance criteria for disposal of transuranic waste at WIPP.

1. New Mexico's Environmental Regulatory Role at WIPP - The New Mexico Hazardous Waste Act and the Resource Conservation and Recovery Act

The State of New Mexico's authority to regulate the WIPP facility for protection of human health and the environment is governed under the HWA and RCRA. Under RCRA, State programs are authorized to operate in lieu of EPA; EPA does not regulate radioactive mixed wastes in those States with an authorized program. New Mexico is authorized by EPA to issue and enforce RCRA hazardous waste facility permits. 50 FR 1515 (Jan. 11, 1985). New Mexico implements this authority under the HWA, Sections 74-4-1 etseq (Repl. Pamp. 1992). On January 2, 1996, New Mexico received final authorization to implement federal requirements under the Hazardous and Solid Waste Amendments of 1984 (HSWA). 61 FR 2450 (January 26, 1996).

2. Summary of External Environmental Protection Provided Under the HWA and RCRA For WIPP

Subtitle C of RCRA provides a broad spectrum of external environmental protection for the WIPP facility from "cradle to grave" for the management, storage and disposal of radioactive mixed waste at WIPP. United States v. New Mexico, 1992 WL 437983 (D. N.M., Aug. 13, 1992 No. Civ. 90-276 SC), aff'd U.S. v. State of New Mexico, 32 F.3d 494 (10th Cir., Aug. 18, 1994). These requirements are applicable from the moment waste is received at WIPP until the facility is closed through a post-closure period. See 40 CFR §§264 and 270. There are a wide range of general and specific environmental requirements applicable to the surface and the underground during operation and closure at WIPP.

The following is a summary of general standards imposed upon DOE and WID at WIPP under the HWA and RCRA: general waste analysis (40 CFR §264.13); security and inspection (40 CFR §§264.14 and .15); training and requirements for ignitable, reactive or incompatible wastes (40 CFR §§264.16 and .17); standards for preparedness and prevention to ensure the facility is designed, constructed, maintained and operated to minimize the possibility of fire, explosion or unplanned sudden or non-sudden releases of hazardous wastes into the environment, including testing of equipment (40 CFR §264.30 et seq); contingency and emergency procedures (40 CFR §264.50 et seq); record-keeping and reporting (40 CFR §§264.70 et seq); requirements to limit volatile organic concentrations (VOC) emissions in the air to a level which is safe and will not endanger human health or the environment (40 CFR §264.601); ground water monitoring requirements such as requirements for detection monitoring to detect the presence and concentration, if any, of hazardous constituents; compliance monitoring which is applicable after detecting statistically significant evidence of ground water contamination; and a corrective action program to treat ground water contamination exceeding concentration limits set in the permit. (See 40 CFR §§264.98 - .100). Finally, RCRA imposes requirements for clean-up and corrective action for releases to the environment as well as financial assurance. (40 CFR §§264.101 and 264.140). These requirements have been summarized in the May 15, 1998 and November 13, 1998 fact sheets for WIPP.

3. EPA's Regulatory Role at WIPP - Disposal Regulations and Compliance Criteria

Under the LWA, EPA's "primary responsibility is to determine whether the WIPP facility will comply with EPA's disposal regulations, located at Subparts B and C of 40 CFR 191." Emphasis added. See EPA Fact Sheet, Proposed Certification Decision for WIPP's Compliance with EPA's Radioactive Waste Disposal Standards. Congress required EPA to develop, by rulemaking, criteria to implement and interpret the disposal regulations for WIPP as "WIPP Compliance Criteria" under 40 CFR Part 194. Id. In 1993, EPA issued final radioactive disposal regulations. In February 1996, EPA issued its final Compliance Criteria which implemented the general radiation disposal standards at WIPP and required DOE to provide EPA with its "compliance certification application" (CCA). Id.

EPA's disposal regulations and criteria provide comprehensive regulatory protection from the "time period beginning at disposal and ending 10,000 years after disposal." 40 CFR §194.2 (defining the "regulatory time frame"). The term "disposal" is defined as "the permanent isolation of spent nuclear fuel or radioactive waste from accessible environment with no intent of recovery... For example, disposal of waste in a geologic repository occurs when all the shafts to the repository are backfilled and sealed." 40 CFR §191.02.m.

EPA's regulatory requirements during the operational phase of the WIPP facility are set forth under 40 CFR 191, Subpart A. Subpart A limits radiation doses to members of the public from the management and storage of TRU waste at WIPP. Subpart A does not contain any other specific requirements and is not duplicative of the HWA or RCRA.

Under these regulatory schemes, EPA and NMED together provide comprehensive external environmental regulation to ensure that the storage and disposal of mixed radioactive waste at WIPP will be protective of human health and the environment.

REGULATORY BACKGROUND OF THE WIPP RCRA APPLICATION

NMED, by and through its Secretary, is responsible for the administration and enforcement of the HWA. The HWA requires each person owning or operating (or both) an existing facility or planning to construct a new facility for the treatment, storage or disposal of hazardous waste identified or listed under law to have a permit. NMED adopted pertinent sections of the federal code of regulations (40 CFR Parts 260 through 270 and 273) under which it administers its hazardous waste treatment, storage, and disposal facility permitting program, as codified in the New Mexico Hazardous Waste Management Regulations 20 NMAC 4.1. Thus, the NMED Secretary has the authority to administer the issuance of a hazardous waste facility permit for WIPP.

General Permit Application Requirements - NMED followed the same regulatory procedure for the WIPP permit application as it does for other facilities seeking a HWA permit. Owners or operators of hazardous waste management facilities are required to submit a comprehensive permit application covering all aspects of design, operation, maintenance, and closure of the facility. This permit application is divided into two parts: A and B.

Part A is a short, standard form that summarizes general information about a facility, including the name of the owner/operator, a list of the types of wastes managed at the facility, a facility layout diagram, and the activities requiring a permit.

Part B is a much more extensive document, submitted in a narrative, tabular, and schematic format, that describes the facility operations in detail. This information is to include, but not limited to: a general description of the facility; a waste analysis plan; information on the design and operation of all hazardous waste management units; procedures to prevent hazards; a contingency plan; and special information where applicable (such as a description of the groundwater monitoring program).

Because there is no standard form for Part B, applicants may refer to the regulations (20 NMAC 4.1, Subparts V and IX, 40 CFR §§264 and 270) and checklists provided by NMED to determine what to include in this part of the application. In addition to the general Part B information required of all applicants, there are unique information requirements tied to the type of facility seeking a permit. For example, since WIPP is a geologic repository, its application must demonstrate compliance with the environmental performance standards contained in §§264.600 through 264.603 for what are known as "miscellaneous units" or "Subpart X units." These technical standards require that the units be located, designed, constructed, operated, maintained, and closed in a manner that ensures protection of human health and the environment.

Test Phase - On August 27, 1990, the NMED Secretary required DOE to "submit... the Part B permit application for the management of hazardous waste as required by the HWA." 40 CFR §270.1(b). DOE and WID subsequently submitted the Part A application on January 22, 1991, and the initial Part B application on February 26, 1991. This application for "Test Phase" activities sought to designate a hazardous waste container storage area within the Waste Handling Building and to operate two miscellaneous hazardous waste management units within part of the subsurface repository, located in the salt beds of the Salado formation 2150 feet below the surface. Disposal of waste was not proposed in the Test Phase.

DOE and WID subsequently revised the application two more times before NMED determined, in February 1993, that the application was complete and proceeded to write the draft permit for the WIPP Test Phase. NMED completed the draft permit and gave public notice on August 30, 1993, requesting public review and comment within a sixty-day period. At the request of DOE and WID, NMED extended the public comment period twice and finally closed it on January 14, 1994.

End of Test Phase - DOE announced on October 23, 1993 that they would not conduct tests involving radioactive wastes at WIPP. They further clarified on November 30, 1993 that they no longer intended to conduct mixed waste testing during a Test Phase at WIPP. This change resulted in a draft permit no longer applicable to DOE's new plan to conduct laboratory tests and proceed directly with the Disposal Phase at WIPP. The NMED Secretary considered all comments received during the public comment period. These comments ranged from withdrawing the entire application and ceasing all activities at WIPP, to allowing DOE to update their current application to reflect Disposal Phase activities.

Secretary's Order - The NMED Secretary issued an order on September 2, 1994, requiring (among other things) the DOE and WID to submit a complete revised permit application that more accurately reflected future WIPP activities; submit within twenty-one calendar days a schedule of milestones of anticipated progress of submissions on the revised application; and within one month, hold a stakeholders meeting to explain its schedule and permit (application) revisions. The Secretary's order also remanded the Test Phase draft permit to NMED's Hazardous and Radioactive Materials Bureau. DOE/WID submitted the revised application (Revision 5) to NMED on May 26, 1995, in which they proposed to store and dispose wastes listed as hazardous in the HWA and 20 NMAC 4.1 at WIPP.

Following receipt of DOE/WID's permit application, NMED issued public notice on June 15, 1995, that the department had received the application. The public notice contained a brief description of the application and identified locations where copies were available for public review.

On June 20, 1995, the NMED Secretary closed the September 2, 1994 order, finding that all requirements of the order had been met.

Disposal Phase Application, Revision 5 Requests for Information - In November of 1995, NMED determined that Revision 5 of the WIPP permit application contained numerous technical and administrative deficiencies, and issued numerous requests to the applicants to remedy those deficiencies. These comments, contained in nearly 150 pages, stated that the permit application chapters generally "... lack necessary and important detailed information required for the development of the draft permit." In particular, the comments emphasized that the waste analysis chapter seriously lacked necessary detail, and identified "specific concerns regarding waste sampling/analysis, acceptable knowledge, RH waste characterization, and verification procedures ...." NMED also identified a serious lack of necessary detail concerning the design and operation of the Waste Handling Building (WHB) Hazardous Waste Management Unit (HWMU); the design and operation of the Underground Hazardous Waste Disposal Units (HWDUs); the design and operation of the ground control and geomechanical monitoring programs for the Underground HWDUs; the assumptions and risk assessment calculations used to demonstrate compliance with miscellaneous unit environmental performance standards; the design and construction of the repository panel seals and repository shaft seals; many of the requirements for closure of HWMUs; and inconsistent information within the chapters' narratives, as well as between the narrative, tables and appendices of various chapters.

DOE and WID responded to these requests from December 4, 1995 until January 17, 1996, when they submitted Revision 5.2 of the permit application.

Disposal Phase Application, Revision 5.2 Notice of Deficiency - NMED issues a Notice of Deficiency (NOD) when the department determines that an application is incomplete. NODs can be issued numerous times during the permit revision process. Each time NMED receives information, it reviews the content and, if necessary, issues another NOD until the application is complete.

On March 14, 1996, NMED issued DOE and WID a NOD after it determined that Revision 5.2 of the WIPP permit application (submitted in response to the Requests for Information described above) contained numerous technical and administrative deficiencies. The NOD, nearly 80 pages long, contained numerous requests for specific information from most chapters of the application. Areas of significant deficiency included:

    Waste characterization - clarify contact-handled waste characterization procedures; provide extensive, detailed information on remote-handled waste characterization procedures.
    Risk assessment - re-evaluate the point of compliance based on maximally exposed individuals or populations at risk; assess the impacts of a major RCRA constituent release at the point of compliance; provide more specific information describing ground control and geomechanical monitoring programs.
    Monitoring plans - provide plans for monitoring potential air releases of RCRA constituents during disposal operations; provide plans for monitoring potential groundwater releases of RCRA constituents during post-closure; ensure both air and groundwater monitoring programs include provisions to establish background levels of RCRA constituents to be disposed at WIPP.
    Closure plans - clarify some aspects of the closure plan, such as contingency closure; submit final shaft seal designs.

NMED received information from DOE and WID in response to this NOD in submittals on April 12, 1996 (Revision 6 of the permit application) and September 30, 1996 (Shaft Seal Design Report).

Upon receipt and review of Revision 6, NMED identified deficiencies which had still not been satisfactorily addressed (e.g., remote-handled waste characterization procedures). However, NMED decided to stop the cycle -- [submit information - review - issue NOD - revise - submit information] -- at this point and develop the draft permit based upon the information provided in the permit application, with the exceptions noted below.

Submittals Subsequent to Revision 6 - After DOE and WID submitted Revision 6 of the permit application, they continued to submit additional information to modify the application, either on their own initiative or at the request of NMED. NMED specifically requested information from DOE and WID, based upon continued review of the permit application, regarding Solid Waste Management Units (SWMUs);revised ground water monitoring plan; and disclosure and financial assurance.

NMED received substantial information from DOE and WID in response to each of these requests and notices, as well as voluntary submittals, from May 29, 1996 until November 20, 1997. DOE/WID submitted approximately 11,400 pages of material in approximately 17 separate submittals during this time period.

NMED requested a revised ground water monitoring plan from DOE/WID after WID notified NMED that the plan as submitted in Revision 6 was insufficient for their purposes. Likewise, while some of the information received from DOE and WID related to SWMUs resulted from the ongoing voluntary release assessment conducted by the applicants, NMED requested some information upon discovering that the applicants had used inappropriate analytical methods to characterize releases to the environment at the WIPP site.

NMED also requested additional information from DOE and WID because of changes to relevant laws after submittal of Revision 6 of the permit application. On September 23, 1996, Congress amended the LWA by exempting all WIPP-designated transuranic mixed waste from treatment standards and land disposal prohibitions promulgated pursuant to the Solid Waste Disposal Act. The permit application directly relied upon technical data and assumptions which were presumably substantiated in DOE and WID's No-Migration Variance Petition submitted to EPA's Office of Solid Waste. However, EPA would not evaluate the Petition as a result of the LWA amendment, and the required information was not included in sufficient detail in the permit application. The information submitted in response to NMED's request was substantial (seven 3" binders, approximately 7300 pages).

Revision 6.3 was submitted voluntarily by DOE and WID, to clarify, modify, or supplement material previously found in the permit application. However, NMED identified numerous inconsistencies between the redline/strikeout pages which purported to indicate text that had been changed, the "clean" replacement pages, and the corresponding WordPerfect files. NMED recognized that while the paper version of the application was the only official submittal, the corresponding WordPerfect files were crucial in preparing the draft permit. It took DOE/WID three attempts before accurate information was submitted.

Completeness Determination - 20 NMAC 4.1.900 (incorporating 40 CFR §270.10) requires the Secretary to issue a completeness determination when the Secretary receives an application form and any supplemental information which are completed to his satisfaction. After the completeness determination, the permitting agency prepares a draft permit. NMED issued a final completeness determination on June 27, 1996.

On September 26, 1997, NMED rescinded this completeness determination when it was evident that WID had failed to provide necessary disclosure and financial assurance information as required under the HWA and regulations. Further, NMED also noted that although the applicants had submitted numerous modifications to Revision 6 of the application, the certification required by 20 NMAC 4.1.900 (incorporating 40 CFR §270.11(d)) did not address any of these changes. DOE and WID submitted the necessary information as Revision 6.5, and NMED issued a new completeness determination on January 5, 1998.

Draft Permit - May 15, 1998 and Revised Draft Permit - November 13, 1998. On May 15, 1998, NMED public noticed the availability of the draft permit and a public comment period which would extend for ninety days until August 14, 1998. During the public comment period, NMED received input from 30 commentors totaling approximately 3300 pages. NMED revised the draft permit to incorporate appropriate public comments and published a revised draft permit on November 13, 1998.

NMED-PROPOSED REVISED DRAFT PERMIT CONDITIONS

This section provides supplemental information concerning major permit conditions in the revised draft permit. Discussion of this supplemental information is provided by permit module and is intended to further facilitate public review of the revised draft permit.

Module I

Module I of the revised draft permit contains standard language similar to all other hazardous waste facility permits and does not contain any NMED-proposed permit conditions.

Module II

Module II addresses waste sources and waste analysis plan requirements, as well as facility security, general inspection requirements, personnel training, preparedness and prevention, the facility contingency plan, general closure and financial assurance requirements.

1. Requirement to summarize Waste Analysis Plan (WAP) non-conformances

NMED has proposed that the Permittees submit monthly summaries of certain non-conformances to applicable WAP requirements identified at the generator/storage site (site) Project Manager level. Identifying a problem at this level is an indication that the review process is not functioning properly and that there is an increased likelihood of discrepant data entering the WIPP Waste Information System (WWIS) database. NMED imposed this requirement to further ensure that the Permittees and NMED are notified of significant issues that arise at any site affecting data quality objectives and accuracy of waste analyses, and to ensure that no waste is managed, stored, or disposed at WIPP which fails to meet data quality objectives.

2. Requirement to provide NMED access to WWIS database

NMED has imposed a requirement to allow NMED direct access to the WWIS, a computer accessed database which contains extensive, detailed waste characterization data supplied by the sites to the WIPP facility. This access is necessary to allow NMED to verify compliance with the applicable characterization requirements of the WAP and the VOC limits in Underground HWDUs specified in Module IV.

NMED regards the WWIS database as "records and results of waste analyses and waste determinations" as specified in 20 NMAC 4.1.500 (incorporating 40 CFR §264.73(b)(3)) and therefore, as part of the facility operating record required by 20 NMAC 4.1.500 (incorporating 40 CFR §264.73), it is subject to the "access to records" requirement imposed in Permit Condition I.D.9.b and specified in 20 NMAC 4.1.900 (incorporating 40 CFR §270.30(i)(2)). The Permittees' proposed WAP, as contained in latest revision of the permit application, describes the data transmittal procedure (Chapter C, page C-35, lines 1+). "Data will be transmitted by hard copy or electronically... from the data generation level to the generator site TRU mixed waste characterization project level... These data will also be input electronically into the WWIS... Summarized characterization information will be reported on a waste stream basis and transmitted by hard copy or electronically to the WIPP Waste Operations when requested." Although other records, such as the Waste Stream Profile Form, will be used to summarize waste characterization results, the WWIS database is the principal record which fulfills the requirements of 40 CFR §264.73(b)(3).

Under the general waste analysis requirements of 20 NMAC 4.1.500 (incorporating 40 CFR §264.13(a)(1)), the Permittees "... must obtain a detailed chemical and physical analysis of a representative sample of the wastes. At a minimum, the analysis must contain all the information which must be known to treat, store, or dispose of the waste ..." The WWIS contains information and records which are necessary for the storage and disposal of waste at WIPP. Full access to appropriate modules and functions of the WWIS database is therefore necessary to ensure compliance with the WAP, the permit and the requirements of 40 CFR §264.13.

3. Requirement to audit and obtain NMED approval

NMED is requiring the Permittees to fulfill the following conditions prior to management, storage, or disposal of TRU mixed waste at WIPP: (a) the Permittees conduct audits of generator/storage sites, using an audit checklist specified by NMED, to demonstrate implementation of and compliance with applicable provisions of the WAP as required under 20 NMAC 4.1.500 (incorporating 40 CFR §264.13); and (b) NMED approves a final audit report as necessary to verify implementation of the WAP. NMED may observe audits as necessary to validate implementation of and compliance with the WAP.

Site audits are necessary in order to demonstrate that the Permittees ensures WAP compliance at its generator/storage sites. The Permittees have not provided a detailed physical and chemical analysis of waste intended for WIPP, nor do the Permittees intend to perform waste "fingerprint" characterization at the WIPP. Instead, the Permittees will ensure the collection of detailed analytical information at the sites, and continued waste "fingerprinting" through ongoing characterization at the sites.

Each site will be audited to ensure that they have implemented and are in compliance with applicable provisions of the WAP; and the Permittee will be responsible for ensuring compliance with those requirements. The audit checklists included in Permit Attachment B6 directly reflect waste characterization requirements presented in the permit and are required for the audit of each site. NMED recognizes that audits may not address all elements of the checklist and has therefore provided appropriate flexibility in the use of the checklist during an audit. For example, the revised draft permit states that some checklists used in an audit may not be applicable to specific processes within a given facility due to the scope of the audit, or the types of waste (waste summary category groups) being generated at that facility.

4. Prohibition on RH TRU mixed waste

NMED has proposed a permit condition prohibiting the storage and disposal of remote-handled (RH) TRU mixed waste at WIPP. This determination was made because the Permittees did not provide adequate waste characterization information specific to RH TRU mixed waste as requested by the NMED, and the information provided by the Permittees did not sufficiently indicate that applicable portions of the WAP dealing with contact-handled (CH) TRU mixed waste would be pertinent to RH TRU mixed waste.

The WIPP RCRA Part B permit application, Revision 5 stated (page C-4) that "waste characterization methods [for RH TRU mixed waste] may differ from those currently implemented by the TRU Waste Characterization Quality Assurance Program Plan (QAPP) [and included in the WAP] for CH TRU waste due to the more radioactive nature of the waste. Specific RH-waste analysis methods will be included in the Methods Manual as they are approved by WIPP facility personnel". The QAPP (DOE,1995a) explicitly stated that it applied only to CH TRU waste, and the Transuranic Waste Characterization Sampling and Analysis Methods Manual (Methods Manual)(DOE, 1995b) was devised to support the QAPP, indicating that methods in the Methods Manual also did not apply to RH TRU mixed waste. NMED concluded that additional information regarding RH TRU mixed waste characterization should be provided by the Permittees.

NMED's issued a request for information to the Permittees in November of 1995 requested them to include or reference complete characterization requirements for RH TRU mixed waste. The Permittees responded in December of 1995, stating: "At this time, detailed information on RH TRU waste characterization methods is not available". The Permittees subsequently provided an inadequate response to the NOD.

NMED has numerous concerns which have not been adequately addressed regarding the application of CH TRU mixed waste characterization techniques to the characterization of RH TRU mixed waste. These concerns include the following:

    Radiographic analysis of shielded RH containers may not be viable, but the Permittees have committed to 100% radiography of all retrievably stored debris waste;

    Applicability of core technology to RH TRU mixed waste is of question and has not been addressed by the Permittees;

    Sampling and analysis modifications associated with use of gloveboxes and/or hot cells or the use of remote machinery are not discussed, and the Permittees have not presented any information supporting the assertion that CH techniques can be applied to RH TRU mixed waste;

    Analytical laboratory availability with ability to perform analyses on RH TRU mixed waste, particularly waste samples with high amounts of gamma and beta emitting radionuclides, is of question;

    Potential problems with RCRA analytical methods as applied to RH TRU mixed waste in terms of interferences or method limitations due to the extremely high amounts of radioactivity (gas generation problems) are not addressed;

    Acquisition of representative samples of RH TRU mixed waste has not been addressed, given the radiation protection requirements for personnel handling the samples (i.e, how waste samples will be obtained, the sample size required, and how minimizing the number of samples collected will impact the final decision of hazardous waste constituent concentrations); and

    The permit application does not include RH TRU-specific sampling and analysis QA/QC requirements (i.e., how accuracy and precision will be addressed while minimizing sample collection and analysis requirements for ALARA purposes) and what QC criteria will be applied to the data based on sampling and analytical methodology limitations.

NMED found that the permit application did not provide sufficient information to ensure that the Permittees can characterize RH TRU mixed waste in the same manner as CH TRU mixed waste. Although the Permittees have indicated that they will revise characterization techniques, if necessary, NMED cannot issue a permit premised by assurances that techniques will work for RH TRU mixed waste characterization without additional evidence of applicability. Further, the Permittees have failed to demonstrate that the WAP (and QAPP) provides specific sampling and analytical methods along with all of the associated QA/QC parameter information to show that compliance of RH TRU mixed waste with the WAP can be achieved. NMED's conclusion to prohibit RH TRU mixed waste is also supported by DOE's own documentation and publicly available information such as the internet, library and Appendix C of DOE's "Remote-Handled Transuranic System Assessment" (DOE/CAO, 95-1143).

Module III

Module III of the revised draft permit provides conditions for the design and operation of the WHB Unit and the Parking Area Unit. For this module, a major permit condition concerns the use of the RH Bay of the Waste Handling Building. NMED authorizes use only of the CH Bay of the Building. See Permit Condition III.A.1, p. III-1 of Module III. Thus, no RCRA-associated use of the RH Bay is authorized in the revised draft permit. NMED has not authorized use of the RH Bay because of the general prohibition on management and disposal of RH TRU mixed waste at WIPP. See the discussion under Module II, above, for further information on the RH TRU mixed waste prohibition.

In addition, the description of the management and storage of RH TRU mixed waste included in the redline/strikeout version of Permit Attachment M1, submitted by the Permittees on August 14, 1998 (during the public comment period on the draft permit), is substantially different from the information provided in Chapter D of the latest revision of the WIPP RCRA Part B permit application. Any modification to the design of the RH Bay of the WHB will require review and approval by NMED. The information detailing the revision of the design of the RH Bay would have to be approved through a permit modification.

Module IV

Module IV provides permit conditions for the design and operation of the Underground HWDUs (panels) within the subsurface. NMED has proposed two major permit conditions within this module.

First, NMED has proposed room-based limits, within a disposal panel, for volatile organic compounds (VOCs). NMED established permit limits for average concentration of VOCs in any single room to ensure protection of human health in the event of acute exposure during a roof fall as well as to chronic (long-term) exposure to VOC emissions from the Underground HWDUs. NMED used standard risk assessment methodology to establish limits which meet EPA standards for environmental exposure and OSHA standards for occupational exposure. During this assessment, NMED also determined that the Permittees' proposed limits failed to adequately protect human health. NMED's methodology is available for public review in the administrative record.

The VOC Room-Based Concentration Limits in Module IV were modified in the revised draft permit from previously proposed limits based on the following criteria. For potentially carcinogenic VOCs, the Room-Based Limits are based on ensuring that the total individual risk associated with exposures to potential carcinogens in the exhaust air from the WIPP repository (assuming a minimum overall mine ventilation rate of 260,000 cubic feet per minute) do no exceed target levels. The target level for a non waste surface worker at the ground surface at WIPP is a total excess cancer risk for all compounds of one in 100,000, and the target level for a resident living at the LWA Boundary is an excess cancer risk of one in 1,000,000.

For the non-carcinogenic VOCs chlorobenzene and toluene, the VOC Room-Based Concentration Limits were set to ensure that the concentrations of VOCs in the air of a closed disposal room did not exceed the Lower Explosive Limit (LEL) for the compounds. For the potential carcinogen methylene chloride, the VOC Room-Based Concentration Limit was set below the target levels and the LEL since the Permittees had explicitly requested a limit that was below target levels and the LEL. For the non-carcinogenic VOC 1,1,1-trichloroethane (and the potential carcinogen 1,2-dichloroethane), the VOC Room-Based Concentration Limit was set to ensure that the concentration of the constituent in the air of an Underground HWDU immediately after a roof fall does not exceed the NIOSH immediately dangerous to life and health concentration. Thus, the revised VOC Room-Based Concentration Limits are based on appropriate rationale for protecting human health and the environment.

In addition, the VOC Room-Based Concentration Limits proposed in Module IV of the draft permit were at least one order of magnitude higher than the "weighted average" headspace concentrations that the Permittees indicated would be representative of the waste throughout the DOE complex for the purposes of determining the modeling parameters (Section D-9b(4)(c), page D-52, lines 32-35, of the WIPP RCRA Part B permit application). NMED's evaluation of the analysis provided by the Permittees in Appendix D9 of the WIPP RCRA Part B permit application found that the analysis contained several major errors which rendered the maximum allowable average VOC concentrations that were proposed in the application inappropriate.

First, the maximum allowable average VOC concentration limits proposed by the Permittees were calculated using assumptions from Revision 5.2 of the permit application, assumptions which were subsequently changed in Revision 6 of the application. These assumptions include the number of open panels in the underground and the air dispersion factor. Thus the actual values for the maximum allowable average VOC concentration limits proposed in Table C-5 and Table D9-7 of the permit application were inappropriate. The most significant concern with the Permittees' evaluation of potential human health risk due to exposure to exhaust air from the repository is that the Permittees did not take into account the total excess cancer risk to an individual due to exposure to multiple potentially carcinogenic compounds. EPA guidance requires that evaluation of human health risk be based on total individual cancer risk. For the non-carcinogenic VOCs chlorobenzene, toluene and 1,1,1-trichloroethane, the maximum allowable average VOC concentration limits proposed by the Permittees were based on incorrect averaging times for exposure and did not take into account the fact that the proposed limits could result in the concentrations of these constituents in the air of a closed room with ventilation barriers in-place exceeding the lower explosive limits for these compounds.

The NMED concurs that the Permittees demonstrated that the maximum allowable average VOC concentration limits proposed by the Permittees would result in concentrations of these constituents in the air of an open disposal room that were below the OSHA 8-hour time weighted averages for both normal operations and potential roof fall events. However, NMED notes that for potential roof fall events, the proposed concentration limits for 1,2-dichloroethane and 1,1,1-trichloroethane would result in exceedances of the NIOSH immediately dangerous to life and health concentrations in the air of an open room immediately after a roof fall in a closed room. NMED has thus revised the VOC Room-Based Concentrations in Module IV accordingly.

The second permit condition proposed by NMED with respect to Module IV concerns confirmatory monitoring of VOC room-based limits. The Permittees compliance with these limits will be determined by VOC confirmatory monitoring and data contained in the WWIS. Besides imposing notification requirements for VOC exceedances, the draft permit requires the Permittees to cease disposal operations in a room and install ventilation barriers if the annual average concentration for a VOC exceeds the specified limit. Likewise, if the annual average concentration for a VOC exceed the specified limit for six consecutive months, the Permittees will close the affected Underground HWDU. NMED is requiring that VOC confirmatory monitoring continue after closure of Panel 1 because the risk assessment assumes there are measurable releases from closed panels, and the absence of data to the contrary did not justify discontinuing monitoring six months after closure of Panel 1.

Confirmatory monitoring is required because the permit application did not demonstrate that, under worst-case scenario, public exposure to VOCs will never be more than one order of magnitude below acceptable levels for the following reasons: 1) The maximum allowable average VOC headspace concentrations proposed by the Permittees were based on not exceeding a one in 1,000,000 or a one in 100,000 excess cancer risk target level for each individual VOC and were not an order of magnitude lower than the target levels as stated in the comment. 2). The derivation of the maximum allowable VOC headspace concentrations proposed by the Permittees did not take into account the total individual excess cancer risk associated with exposure to multiple potential carcinogens, which is not in conformance with EPA guidance. Thus, the demonstration provided by the Permittees that was referenced in their August 14, 1998 comments on the draft permit was not completely appropriate. In order to derive the Module IV human health risk-based VOC Room-Based Concentration Limits for the potential carcinogenic VOCs to be emplaced at the WIPP, NMED used the Permittees equations and assumptions. The NMED Target Level was a total individual excess cancer risk associated with exposure to the VOCs in the exhaust air of the repository (assuming an overall mine ventilation rate of 260,000 cubic feet per minute) not exceeding 1 in 100,000 for the non-waste involved surface worker, and not exceeding 1 in 1,000,000 for a resident living at the LWA Boundary. Thus, the potential maximum concentration of potentially carcinogenic VOCs in the exhaust air will not be an order of magnitude below acceptable levels, which demonstrates that detection monitoring is appropriate.

Module V

NMED is requiring the Permittees to implement a detection monitoring program (DMP). Ground-water detection monitoring is a necessary tool for determining whether a release from the facility has occurred. While the Permittees submitted information in the application supporting their belief that there will be no migration of hazardous wastes from the Underground HWDUs, NMED is imposing this permit condition to demonstrate and ensure compliance with the environmental performance standards specified in 20 NMAC 4.1.500 (incorporating 40 CFR §264.601(a)). Furthermore, monitoring will provide useful information in demonstrating the adequacy of WIPP site characterization and design, and will provide useful information concerning ground water for closure and post-closure repository performance.

An additional condition proposed by NMED concerns the point of compliance for ground-water monitoring. In their August 14, 1998 comments, the Permittees stated that the point of compliance for ground-water monitoring should encompass the waste management area, which includes any barriers (such as the Salado formation) within the WIPP land withdrawal area. The Permittees also commented that, in their opinion, setting the point of compliance at the LWA Boundary would be consistent with a previous EPA interpretation. However, NMED will retain the location specified in the revised draft permit for the point of compliance as "... the vertical surface located at the hydraulically downgradient limit of the Underground HWDUs that extends to the Culebra Member of the Rustler Formation".

NMED's interpretation concerning the point of compliance takes into account the containment capabilities of the Salado Formation and is consistent with the HWA and RCRA regarding protection of human health and the environment. RCRA does not limit the point of compliance to being the facility boundary, i.e. the LWA Boundary.

Clearly, if NMED were to adopt the LWA Boundary as a point of compliance for releases to the Culebra, this would afford no detection prior to release of hazardous constituents from the facility boundary. Additionally, monitoring releases from the EPA's Office of Solid Waste interpretation of "disposal unit" would require installation of wells through the Salado to monitor lateral releases from the unit, as well as the Culebra to monitor vertical (and then lateral) migration of releases. This monitoring is a costly, unnecessary burden given the potential time involved with natural lateral migration of wastes within the Salado from the WIPP repository during the operational period, and may pose an unnecessary risk in compromising repository performance.

The point of compliance established by the NMED is consistent with regulation, and is protective of human health and the environment in accordance with the requirements of 20 NMAC 4.1.500 (incorporating 40 CFR 264.601) because it affords detection of releases well before these releases would reach the LWA Boundary.

Module VI

Module VI addresses requirements for post-closure care and does not contain any NMED-proposed conditions. Please refer to the November 13, 1998 fact sheet for an overview of Module VI, or refer directly to the language contained in the revised draft permit.

Module VII

Module VII implements the corrective action requirements imposed by the HWA for releases of hazardous wastes and constituents from SWMUs. Conditions include requirements for waste minimization, land disposal restrictions, and corrective action to investigate possible releases from SWMUs. Further information regarding these conditions and NMED's approach to evaluating no further action requests and decisions to include or exclude specific SWMUs from Module VII are in the Technical Support Document which accompanies the revised draft permit.