WIPP: Judge upholds change in how nuke waste is counted. Could keep site open to 2050

A New Mexico appellate judge upheld a change in how the volume of nuclear waste disposed of at the Waste Isolation Pilot Plant is counted, shifting the repository from being halfway to capacity to only a third full.

In 2018, the U.S. Department of Energy requested to modify its WIPP operating permit with the New Mexico Environment Department (NMED) to change how it counts the amount of waste toward the facility’s statutory limit of 6.2 million cubic feet of transuranic (TRU) waste consisting of clothing materials and equipment irradiated during nuclear activities.

The change was intended to count the inner volume of the waste as opposed to the volume of the outer containers that hold the waste, seeking to avoid counting air between the waste itself and waste drums.

NMED approved the permit modification request (PMR) in 2019, but Albuquerque-based watchdog groups Southwest Research and Information Center and Nuclear Watch New Mexico immediately appealed the decision.

On Nov. 9, Judges J. Miles Hanisee, Shammara Henderson and Kristina Bogardus issued a concurring opinion rejecting the appeal.

The judges argued the initial decision was legal and that when the WIPP permit was initially approved and the facility began accepting waste in 1999, it was assumed incorrectly that the drums would be full.

The modification would not increase WIPP’s disposal capacity, read the decision, but clarified the maximum capacity of WIPP facility was based on the actual volume of waste held in the drums emplaced at WIPP for disposal.

“Because the permit incorrectly assumed the containers would be full of TRU mixed waste, this created a de factor limit that could result in underutilizing the WIPP facility,” read the decision. “Before the permit modification at issue, the method of determining the volume of TRU mixed waste at WIPP was not explicitly stated in the permit.”

In its appeal statement, Southwest Research and Nuclear Watch contended the permit modification was not needed because at the time of the request WIPP was only about half full and changing the volume calculation method would constitute expanding WIPP to dispose of waste beyond its initial mission.

The PMR also contradicted federal law, the appeal read, and that the past method of counting waste volumes was correct.

“The PMR should be denied as unneeded, because less than 55 percent of the WIPP capacity limit of 6.2 million cubic feet has been used, and the apparent purpose of the PMR is to expand WIPP for other wastes, which WIPP is not legally authorized to receive,” read the appeal.

Expanding WIPP?

Instead of expanding WIPP and continuing to use it to dispose of TRU waste in the coming decades, the appeal argued the facility was initially intended as a “pilot project” to demonstrate how nuclear waste could be disposed of on a temporary basis.

Any effort to elongate WIPP’s lifespan, the appeal argued, would contradict the federal government’s original intentions and violated the DOE’s agreement with the State of New Mexico regarding the nature and timeline for WIPP’s operations.

“The law specifically designates WIPP as a ‘pilot plant’ and states that its mission is to ‘demonstrate the safe disposal,’” the appeal read. “Thus, Congress did not intend WIPP to be the sole disposal site for all TRU waste.”

Don Hancock, nuclear waste program director at Southwest Research said the PMR was part of a broader effort to expand WIPP using a “piece-meal” approach.

He said that broader discussion, at the modifications it would require should be held through proceedings for the 10-year renewal of WIPP’s permit presently under review with a decision by NMED expected next year.

Along with other PMRs that would add a utility shaft and authorize additional disposal panels, which WIPP officials argued were needed to replace space lost to contamination during a 2014 radiological release, Hancock argued the DOE hoped to continue disposing of nuclear waste at WIPP decades beyond what was agreed upon as the DOE was unsuccessful in finding alternate locations.

“We know it’s part of expanding WIPP. We know what DOE is doing but DOE doesn’t want to publicly admit it and the Environment Department doesn’t want to deal with it,” Hancock said.

“The reason the laws have always put limits on WIPP is that the DOE was supposed to be finding locations for other repositories. There is no other repository and that’s why they don’t want to have a limit on what goes into WIPP.”

Hancock said the fight against the PMR would continue despite a setback in court. He said the impact of the modification would not take effect until WIPP reaches its initial limit under the previous volume calculation method and exceeds that under the new process.

“This is not an over issue. It’s many years before this change has any direct impact in terms of how much waste is allowed,” he said. “It’s contrary to what Congress intended and the way the waste was measured for many years.”

Air within the waste drums should be counted as waste, Hancock said, as it could be contaminated by the waste it surrounds and contain pollutants like volatile organic compounds (VOCs).

“Air in terms of VOCs are something that is regulated. That is waste. It’s historically and factually wrong to not consider it part of the waste in the container,” he said. “That’s why it’s always been outer container volume and it should be going forward.”

Chair of the Carlsbad Mayor’s Nuclear Task Force John Heaton disagreed, maintaining that only the waste itself should be counted toward WIPP’s legal capacity.

He said with the change meant WIPP could be active until 2050.

Supporters of the WIPP site like Heaton long touted the economic benefits it brings to the Carlsbad area, through decades of employment and tax revenue since the project started in the 1970s an accepted the first shipments of waste in 1999.

“They’re going to keep with the proposal and not count air,” Heaton said. “It’s ridiculous to count air. I think this is the correct decision. It changes the volume dramatically. Instead of being half full, we’re only a third full.

“That’s very important to the longevity of the project.”