Meanwhile, EPA held hearings on the revised compliance criteria for permanent disposal and came out with a draft version in late 1995. After discussions with DOE, Westinghouse (the contractor in charge of WIPP) and the Office of Management and Budget, EPA presented a final watered-down version of the criteria in early 1996. Changes included:
The Land Withdrawal Act was also gutted in 1996 when an amendment to the Act was attached to the Defense Authorization Bill. This amendment deleted all references to a Test Phase, but also specifically stated that WIPP did not have to comply with Solid Waste Disposal Act regulations on mixed waste--specifically, the waste no longer had to be treated to meet RCRA land disposal restrictions. (The state of New Mexico still has control over the hazardous materials during the operational phase and the New Mexico Environment Department's (NMED's) Hazardous Waste Facility Permit for WIPP is the only permit regulating WIPP. NMED has no authority over the radioactive component of the waste, however and the facility must only prove containment for 80 years to satisfy the hazardous waste permit requirements.) All references to retrievability were deleted from the Land Withdrawal Act as well as plans for decommissioning the facility, for disposing of all TRU-waste and for surveying the TRU-waste at all DOE facilities. The original Land Withdrawal Act had a 6 month waiting period for Congress (and the public) to review the situation if WIPP did show compliance with EPA disposal criteria. This period was shortened to 30 days and DOE was encouraged by the amendment to make every effort to open the facility by November 1997.
In fact, DOE did not open the facility by 1997. DOE had submitted its Compliance Criteria Application to EPA in 1996 and hearings were held on whether WIPP could be shown to meet the criteria necessary to prove the facility could contain transuranic waste for 10,000 years. There were many problems with the criteria themselves (see above), DOE's application and EPA's review of that application. Some of the most serious problems involved EPA's almost total reliance on DOE for technical and scientific answers. For instance, rather than use their own mathmatical models and do their own calculations to see if DOE's figures were correct, EPA used DOE's models and plugged in DOE's data. It was no surprise that they came out with the same results!
EPA did this even when DOE's models were "...unique to WIPP and not generally used elsewhere..."; when DOE used a standard that was "...not the standard of verification that one normally applies to chemical modeling codes." And when DOE's results using this code could result in figures that were not consistent with any known chemical process. DOE also used figures for the solubility of plutonium that were actually values for Thorium and Uranium solubilities even though those values could be as much as 10,000 times lower than the actual plutonium solubility values. (Solubility is important because the more soluble plutonium is, the more of it can dissolve in brine and be transported to the accessible environment.) EEG-68: Evaluation of the WIPP Project's Compliance with the EPA Radiation Protection Standards for Disposal of Transuranic Waste and EEG-77: Plutonium Chemistry Under Conditions Relevant for WIPP Performance Assessment. are both excellent technical reviews of some of the many problems with DOE's CCA Performance Assessment.
EPA certified in May of 1998 that WIPP complied with EPA standards for long-term isolation of transuranic waste (subparts B and C of 40 CFR 191.) However, the facility still couldn't open because of lawsuits by environmental groups claiming that it had to be permitted for operation as a hazardous waste disposal facility under RCRA. DOE claimed that it fell under 'interim' RCRA standards for mixed waste which didn't require that the facility be permitted and that anyway, purely radioactive waste could be brought to WIPP because that waste was not regulated under RCRA. DOE continued to state, however, that they would not ship anything to WIPP before they received their RCRA permit.
Hearings on this operating permit began in February of 1999 and lasted for 5 weeks. There was much technical testimony by all parties on WIPP geology, structural problems with Panel 1 of the repository, water-flooding breach scenarios, problems with the characterization of the waste and more. Interestingly, despite all their previous assurances, DOE sent the first shipment of waste from Los Alamos National Laboratory (LANL) to WIPP on March 26, 1999--the last day of the permit hearings and before the permit was issued. This waste was from an artificially created waste stream and was 'purely radioactive' waste. Even though the shipment left LANL on a cold, dark night, protesters demonstrated at various places along the route to WIPP.
NMED issued a final permit for WIPP later that year. In the permit certain chemicals, free liquids, all remote handled (RH) waste and various other things were prohibited from being disposed at WIPP. Characterization was to be performed at the generator sites. The characterization process was to be audited by DOE and this DOE audit was to be overseen by NMED. This audit process was supposed to take the place of "fingerprinting" at WIPP. (Fingerprinting is sampling and analysis of a portion of the waste received by the disposal facility to make sure characterization was done properly by the generating facility. Fingerprinting is usual at other hazardous waste dumps but is not required at WIPP.) Characterization processes were spelled out in the permit. Also, some type of financial assurance was required by the permit to assure that there would be enough money available to close the facility properly after the 35-year operational period. This was especially important since Westinghouse, WIPP's operator at the time, had over 300 environmental violations at its other facilities and DOE, WIPP's owner, had already used lack of money as an excuse for not cleaning up leakage at their Hanford facility. (Information on the permit and permit modifications can be found on the NMED website. Detailed information on the permit process including summaries of each day's testimony at the hearing in Santa Fe can be found on the CCNS website.)
After the operating permit was issued and waste began to be sent to WIPP, various lawsuits were brought by both DOE and environmental groups agains NMED. Lawsuits were also brought be CARD against DOE challenging the safety of their transportation, irregularities in the NEPA process and raising Environmental Justice issues. Some of these lawsuits are ongoing. One of DOE's complaints was that they shouldn't have to provide financial assurance for WIPP since the federal government could be counted on to have enough money to close WIPP properly at the end of its operational life. DOE withheld millions of dollars in promised road improvement money for the WIPP route in New Mexico because they claimed they couldn't afford both the road improvements and financial assurance. Eventually, the same year, Senator Domenici added language to one of the budget bills which exempted WIPP specifically from having to provide financial assurance. DOE released the road money.
Since the first shipments to WIPP, DOE has been almost constantly attempting to modify the permit. In their document, DOE/NTP-96-1204 National TRU Waste Management Plan, Revision 2, DOE lays out exactly how they want to change WIPP and why. Much of their transuranic waste is not acceptable for disposal at WIPP because it does not meet requirements of the Land Withdrawal Act or the RCRA permit. Therefore, DOE has plans to have both the Land Withdrawal Act and the RCRA permit modified. It turns out that characterization of the waste is about half the cost of the entire project so DOE is constantly trying to find ways to modify the permit to make characterization cheaper and less stringent. Because transporting what is called 'high wattage waste' is so expensive, (Wattage measurement is a substitution for hydrogen gas measurement. Since high wattage waste generates a lot of hydrogen--an explosive gas--and since the amount of hydrogen allowed in the transportation container is limited for safety reasons, only small amounts of high wattage waste can be transported at a time) DOE wants to do studies to see if the O-rings in the TRUPACT-II will hold during an explosion or fire in the waste during transportation and wants to see if WIPP can 'safely' unload this waste. Then they want to raise the amount of hydrogen and high wattage waste they can transport in the TRUPACT-II.
Several major modifications to the permit may soon be proposed by DOE--centralized characterization and bringing Remote Handled waste to WIPP among others. Since never opening the drums at WIPP has always been a cornerstone of their safety program at the site, opening drums and doing sampling and testing at the WIPP surface facility could seriously jeopardize safety there--in addition to changing the whole mission of WIPP. NMED prohibited RH waste from coming to WIPP originally because DOE doesn't have ways to characterize this waste adequately or an infrastructure to support characterization. Therefore, it is impossible to know if the RH waste is mixed waste (mixed with hazardous, RCRA-regulated chemicals) and what chemicals and heavy metals are in it. These modifications are comprehensive enough that they will require further hearings and public comment.
Finally, EPA's certification of WIPP is reviewed every five years and the first review or renewal will be in 2004. Various problems, including the plutonium solubility problem, microbial degradation and gas generation, breach scenarios, the effectiveness of the magnesium oxide backfill (the only engineered barrier at WIPP) and the computer modeling problems are already being looked at by the EEG and various environmental groups. CARD is still looking at the problems with the geology at WIPP through the information on this website and in their lawsuit against DOE. All of these problems could challenge DOE's renewal of their EPA certification.