WIPP Permit Hearing Summary

Monday, August 9, 2010, 9:00 AM; WIPP Permit Renewal Hearing began in the "Board Room" at Santa Fe Community College. It was expected to run for two days.

Thirteen "principals" were seated at the front table: these were, from left to right viewing from the front: Joseph Alarid, the Hearing Officer, a retired NM State Court Judge; Don Hancock, of Southwest Research Information Center (SRIC); Scott Kovacs, of Nuclear Watch New Mexico (NWNM); Cristopher Timm, of Pecos Management Services (PMS); Mr. ?, a DOE lawyer on-site at WIPP; Mr. ?, Mr. Woodward, and Mr. Head, three Texas lawyers contracting services to WIPP; Mr. ?, a Washington TRU Solutions (WTS) lawyer on-site at WIPP; Mr. Bearzi, Chief of NMED/HWB; Lindsay Lovejoy, a Santa Fe lawyer contracting services to NMED/HWB; Steve Zappe, an NMED/HWB manager assigned to WIPP business; Ms. ?, a NMED staff lawyer assisting Mr. Zappe.

The first witness to be sworn was WIPP's Robert Kerman, manager and engineer, who remarked as follows:

A controversy has grown up between WIPP and NMED/HWB regarding the maximum allowable values for the concentrations of certain Volatile Organic Contaminants (VOCs) in the air circulating in particular underground spaces at the WIPP-site. A VOC of special concern has been CCl4, a recognized carcinogen and volatile solvent copiously emitted by containerized mixed TRU waste; i.e., waste sent to WIPP for storage from other DOE sites. Evidently, TRU waste containers have not been "air-tight", and solvent-contaminated materials inside these containers have out-gassed into underground storage spaces at WIPP.

Although the WIPP ventilation system has filtered the contaminated air circulating in the underground spaces, thereby removing some of the contamination, air vented into the open atmosphere above the WIPP-site was still found to have been impure. Thus, emissions from the ventilation system, contaminated by CCl4 to some measurable degree, have been free to circulate around and diffuse into the air being breathed by the nearby residents of Carlsbad, NM.
It has then been a technical exercise for WIPP and NMED engineers to estimate the health risk posed to local residents by the average levels of CCl4 in their air. The standard applied stipulated that the risk to the surrounding population due to all VOCs (not just CCl4) emitted from WIPP should not exceed one excess cancer death per 100,000 individuals. Needless to say, however, any such estimation of risk would be very uncertain, and any translation of such estimated risk into a value for the maximum allowable concentration of a particular VOC in the underground spaces would be even more uncertain.

Nevertheless, acting as if the connection between the concentrations of a suite of VOCs in the underground, and the estimated risk to local populations due to these VOCs was well-understood and precise, WIPP managers such as Mr. Kerman, and WIPP lawyers such as Mr. Woodward, argued that WIPP should be permitted to allow VOC concentrations in the underground to rise to levels such that estimations of excess cancer deaths in local populations would be exactly 1.00 death per 100,000, and not some slightly smaller number, say 0.75 deaths per 100,000.

Moreover, the estimate of 1.00 excess cancer deaths per 100,000 persons was to be applied to a time-dependent mixture of VOCs in the underground spaces, the hazard due to each one of these VOCs carrying with it its own significant degree of uncertainty. It seems that the Environmental Protection Agency (EPA), in accordance with the best evidence available, stipulates a maximum tolerable risk for each VOC. But, this number is itself a moving target. And, in fact, the EPA recently changed its value of the tolerable risk due to chronic exposure to CCl4 in air, reducing this by a factor of 2.5. WIPP engineers translated this reduced risk factor into an increased value for the maximum allowable concentration of CCl4 in underground air, multiplying the previous value of 165 ppbv by 2.5 to obtain a new value of 412.5 ppbv.

Being prodded by NMED/HWB's lawyer Lovejoy to clearly explain how this change could be justified, WIPP managers and lawyers responded with two days of obfuscation.

The second witness to be sworn was WIPP manager John Garcia, who presented viewgraphs describing the processing of Contact Handled (CH) and Remote Handled (RH) waste at WIPP; e.g., from acceptance of the waste at the facility entrance to its emplacement into permanent underground storage. He mentioned that a provision for the establishment of a temporary overflow, or "surge", storage space at WIPP had been agreed upon by WIPP management and NMED in the past, and that such an overflow space had now been created. However, this space had not yet been used. Under cross-examination by Mr. Hancock, it was revealed that no waste-streams were anticipated for the future which would necessitate the use of surge storage. However, both Mr. Garcia and Mr. Kerman defended the maintainence of surge space as being an example of "just good management practice."

At 2:15 PM the Hearing was adjourned until 9:00 AM tomorrow.

Tuesday, August 10, 2010, 9:00 AM; the Hearing resumed. James Bearzi, NMED/HWB Chief, was sworn in as the first witness for NMED. He began by talking about public participation in the regulatory process. Specifically, NMED is now requiring of WIPP that it create an electronic information repository to inform the general public about those parts of WIPP business that are regulated by NMED/HWB. He said that WIPP is being encouraged to work with members of the general public in order to ensure that this repository truly serves the public; to this effect, WIPP should devise and implement a public communications plan. Mr. Bearzi then talked briefly about: a) a perceived WTS conflict-of-interest; b) "acceptable knowledge" criteria conditioning NMED's willingness to forego radiography and/or chemical testing aimed at detecting prohibited items within containers shipped to WIPP.

The next witness to be sworn was Steve Zappe, a NMED/HWB manager. Mr. Zappe spoke for ~2 hrs about 11 matters of concern to NMED. A significant portion of this time was spent talking, inconclusively, about the increase in the allowed concentration of CCl4 in the underground spaces by a factor of 2.5. Cross-examination of the witness then extended for ~1 hr. Apparently, no new issues were raised.

Following a lunch break, at 1:00 PM, a period was allowed for public comment. The first commenter was NM State Rep. John Heaton, from Carlsbad, NM. Mr. Heaton talked about the joy of ownership that he and the citizens of Carlsbad feel when they contemplate the presence of the WIPP dumpsite in their neighborhood. Hr. Heaton was followed by Linda Borrego, another Carlsbad resident. She may have outdone Mr. Heaton in her enthusiastic support for the dumping of radioactive waste at WIPP; waste that was being dumped in close proximity to her home and to her children. She spoke earnestly about her feelings of complete safety, and about the great importance of WIPP to the local economy.

At 1:10 PM public comments ended. Next, PMS presented its testimony, offered by Jerry Fox, followed by Cris Timm. These two worthies advise NMED/HWB as it moves through the Permit renewal process. Their presentation seemed shaky, appearing to suffer from a lack of familiarity with the Hearing process itself. Nevertheless, a central feature of their testimony referred to their belief that the draft Permit showed some "inconsistencies", and they considered these inconsistencies to be a significant failing. During cross-examination, their view was vehemently contested by Mr. Head, a WIPP contract lawyer. Mr. Head, in an apparent effort to cow the PMS witnesses, even referred to the 13 individuals seated at the front table as "The Tribunal"; as in, "Do you mean to suggest to this tribunal that ... ?" Mr. Timm, perhaps chastened, allowed that PMS supported the draft Permit, as a whole, but had a few suggestions for improvements.

At 2:40 PM Mr. Bearzi presented rebuttal to Ms. Joni Arends written opinion that the draft Permit had no provision for any public appeal of certain "fee-payment structures". Mr. Bearzi disagreed.

At 2:45 PM a recess was declared. At 3:30 PM the Hearing resumed and Mr. Kerman presented rebuttal to the widely expressed view that WIPP's multiplication of the maximum allowed concentration of CCl4 in underground air by a factor of 2.5 may have been unfounded. Mr. Kerman presented the summary of a WIPP calculation which, he claimed, supported their procedure, and attempted to place it into evidence. Much disputation ensued; the Hearing Officer finally ruled that the rebuttal was improper and the calculation summary could not be placed in evidence, but that it could be entered into the Hearing record as a comment. He said that as he later wrote up his Hearing recommendations he would pay attention equally to evidence and to comment.

At 4:20 PM the Hearing adjourned until 6:00 PM, when public comment would be again invited.

[I have blogged previously about the "WIPP Hazardous Waste Permit Renewal Process." (Blogdate: Sunday, May 23, 2010.) "The draft Permit includes several conditions that are newly imposed on WIPP but have been included in other hazardous waste facility permits issued by NMED; viz., 1) Community relations plan; 2) information repository; 3) minimization of future waste volume."]