June 26, 2014

By Staci Matlock
The New Mexican

ALBUQUERQUE — State environment officials on Thursday defended a decision to allow the U.S. Department of Energy to store highly radioactive waste in new containers without a public hearing.

State officials told a panel of the New Mexico Court of Appeals during a hearing in Albuquerque that the new “shielded” containers are a safer, more efficient way to handle the waste.

The hearing was held to air ongoing arguments in a 2-year-old case brought by the Southwest Research and Information Center, a nuclear safety watchdog organization.

The case received relatively little notice when it was filed, but it has taken on new significance since a container at the Waste Isolation Pilot Plant in Carlsbad leaked radiation in February and forced regulators to shut down the underground storage facility. Investigators are still trying to determine the exact cause of the leak, but they are focusing on a volatile chemical mixture in a container shipped from Los Alamos National Laboratory.

The case also has put state regulators in a tricky spot as they continue to scrutinize the Department of Energy’s oversight of WIPP while at the same time defending a decision to allow the use of new containers for highly radioactive waste without a public hearing.

On Thursday, the judges asked if it would be prudent to wait until the investigation into the WIPP leak is complete before they rule on the case about the container switch.

Jeffrey Kendall, New Mexico Environment Department general counsel, told the judges the leaking container at WIPP had nothing to do with new shielded containers for hot waste and shouldn’t hold up a ruling.

Lindsay Lovejoy, attorney for the Southwest Research and Information Center, said it might be prudent to wait because changes made at WIPP due to the February leak could affect all containers for any waste shipped to the facility in the future, including the hot waste.

The Court of Appeals panel has been mulling this case since closing arguments were made in July 2013, but it still hadn’t made a decision when the Feb. 14 leak at WIPP occurred.

The state Environment Department oversees the Department of Energy’s operating permit for the Waste Isolation Pilot Plant, and the latter must ask for the state’s blessing on any changes in handling the waste. In late 2012, the Department of Energy asked to change the type of containers used for highly radioactive waste. The state department gave the public 60 days to file written comments but didn’t set a public hearing. In 2013, the state granted the federal agency’s request.

The Southwest Research and Information Center appealed the decision, saying the Environment Department should have held a public hearing because the new containers were less robust than the ones used at the time for the hot waste. Moreover, the center said the department violated its own procedures by changing its mind about the public hearing without giving a reason.

By the time the appeal was filed, nine of the new shielded containers carrying waste from Argonne Laboratory had already been shipped to WIPP and stored underground. They are stored in a different room than the one where the leak occurred in February.

Don Hancock, nuclear waste program director for the Southwest Research and Information Center, said a public hearing would have allowed the public to question state and federal regulators about the containers and provide testimony that could serve as evidence in court. A written comment period doesn’t have nearly the same flexibility or degree of scrutiny, he said.

Hancock said regulations require a public hearing when the federal agency requests a change to the WIPP permit that has significant public interest and is technically complex.

He said the public weighed in heavily during a hearing on the initial decision several years ago to allow storage of more highly radioactive waste at WIPP, including the type of container it could be stored in. “Those were very robust cylinders. The DOE is still using them,” he said.

“There was then, and there still is, significant public interest about hotter waste,” Hancock said. The public should have been offered a chance in a public hearing to more closely question regulators about the change in containers, he argues.

With regard to a public hearing, the Environment Department said in an email after Thursday’s court hearing, “A letter was sent out in error in December 2012” indicating the permit change for the containers would include a public hearing. “The letter was rescinded four business days later on Dec. 28, 2011.”

The department did not say why the change was made.

Kendall told the three judges that shielded containers are a newer technology that allow the “waste to be received and disposed of more efficiently and in a safer manner.”

He said two other permit changes requested by the Department of Energy regarding Trupact containers used to ship mixed, low-level radioactive waste also were subject to 60-day comment periods and no public hearing. “We are trying to be consistent,” he said.

The Environment Department said in an email that the shielded containers can be transported in fewer shipments, and the process is quicker and significantly reduces the dosage rates of radiation from the drums.

Moreover, although the department doesn’t know who manufactures the shielded containers, their safety has been vetted by the Nuclear Regulatory Commission and the Environmental Protection Agency.

Hancock said he and others still have many questions about the testing and safety of the shielded containers that have yet to be answered by regulators.

In light of regulatory problems leading up to the February leak at WIPP, Hancock said he hoped the Environment Department would take a second look at the shielded containers.

The judges did not rule on Thursday and have several options. They could simply agree with the Environment Department that no public hearing was needed or side with the Southwest Research and Information Center. They could send the whole case back to the Environment Department and tell them to reconsider the decision, or they could simply wait until investigations into the WIPP leak are finished and a final report on that incident is issued.

Regulators and the nuclear watchdog group hope the judges will make a decision sooner rather than later. Even though WIPP is closed for now, a whole lot of highly radioactive waste has to be packaged into containers for temporary storage until shipments resume.

The Department of Energy and nuclear waste-generating sites need some clarity, state Environment Department officials said, noting that “the uncertainty has somewhat of a chilling effect on their ability to implement these advanced technologies.”

Contact Staci Matlock at 986-3055 or smatlock@sfnewmexican.com. Follow her on Twitter @stacimatlock.