G. J. Barnes and M. E. Whatley
Westinghouse Electric
Corporation
Waste Isolation Division
ABSTRACT
In the early 1970s the federal government selected an area in southeastern New Mexico containing large underground salt beds as potentially suitable for radioactive waste disposal. An extensive site characterization program was initiated by the federal government. This site became the "Waste Isolation Pilot Plant," better known as WIPP.
It is now 1997, over two decades after the initial selection of the New Mexico site as a potential radioactive waste repository. Numerous scientific studies, construction activities, and environmental compliance documents have been completed. The United States Department of Energy (DOE) has addressed all relevant issues regarding the safety of WIPP and its ability to isolate radioactive waste from the accessible environment.
Throughout the last two decades up to the present time, DOE has negotiated through a political, regulatory, and legal maze with regard to WIPP. New regulations have been issued, litigation initiated, and public involvement brought to the forefront of the DOE decision-making process. All of these factors combined to bring WIPP to its present status - at the final stages of working through the licensing requirements for receipt of transuranic (TRU) waste for disposal.
Throughout its history, the DOE has stayed true to Congress' mandates regarding WIPP. Steps taken have been necessary to demonstrate to Congress, the State of New Mexico, and the public in general, that the nation's first radioactive waste repository will be safe and environmentally sound. DOE's compliance demonstrations are presently under consideration by the cognizant regulatory agencies and DOE is closer than ever to waste receipt.
This paper explores the DOE's journey towards implementing a permanent disposal solution for defense-related TRU waste, including major Congressional mandates and other factors that contributed to program changes regarding the WIPP project.
INTRODUCTION
Although unplanned events have periodically impacted WIPP schedules and strategies, the United States Department of Energy (DOE) has met directives of the Nation's highest legislative body, the United States Congress. This paper examines major Congressional mandates affecting the WIPP, such as the Atomic Energy Act, (1) the DOE National Security and Military Applications of Nuclear Energy Authorization Act of 1980,(2) the Nuclear Waste Policy Act of 1982, (3) the WIPP Land Withdrawal Act of 1992, (4) and the WIPP Land Withdrawal Amendment Act of 1996. (5) This paper also examines other major events in the history of WIPP that influenced WIPP schedules and strategies. "The WIPP Journey to Waste Receipt" is divided into four sections: 1) The Historical Background of WIPP; 2) The WIPP Construction Phase; 3) Unexpected Regulations and Legal Challenges Impact WIPP; and 4) WIPP Today - On to Waste Receipt.
THE HISTORICAL BACKGROUND OF WIPP
In 1946, the United States Congress enacted the Atomic Energy Act (AEA), (6) which granted the Atomic Energy Commission (AEC), a DOE predecessor agency, authority to build nuclear weapons and direct the development of nuclear power for peaceful as well as military purposes. The Atomic Energy Act of 1954 (7) purported to completely amend the AEA of 1946. In 1974, the responsibilities of the AEC were transferred to the Energy Research and Development Administration (ERDA), (8) another DOE predecessor agency. In addition, the Nuclear Regulatory Commission (NRC) was granted authority to regulate and license commercial nuclear facilities in the United States. In 1977, the DOE was created by Congress, (9) taking on ERDA's functions.
When Congress enacted the AEA in 1946, its primary focus was nuclear weapons production, it gave little thought to the permanent disposal of the radioactive waste that would be generated as a result of the country's nuclear materials production activities. Further, at this time in America's history, the public was generally not in a position to articulate environmental, safety, or health concerns regarding nuclear waste disposal. This was largely true because the AEC's mission was cloaked in secrecy. Congress had not yet granted the general public nor the states direct access to information regarding nuclear waste and the nation's plans for its disposal. Thus, general public debate on this issue was rare during the initial stages of nuclear weapons production in America.
Site Selection
In 1955, the AEC sought assistance from the National Academy of Sciences (NAS) in identifying suitable means for permanent isolation of the nation's nuclear waste. In 1957, a committee of the NAS recommended underground salt formations as the most promising medium for permanent disposal of high-level radioactive wastes. (10) From 1957 through the early 1970s, the AEC sponsored numerous research projects involving salt formations at various locations in the U.S., including geologic and hydrologic characterization studies and conceptual design activities. In the early 1970s, the AEC selected a portion of the Permian Basin in southeastern New Mexico as a potential site for the permanent disposal of long-lived radioactive wastes. (11) At that time, the AEC had not reached a decision as to whether the site would be used for disposal of high-level or transuranic (TRU) waste. Site characterization activities, which included exploratory drilling, continued at this location near Carlsbad, New Mexico. For the most part, Congress allowed the DOE to continue its quest for a national solution to the radioactive waste disposal problem, without significant Congressional intervention.
Defining the Mission
In 1976, the New Mexico site, WIPP, was moving forward towards becoming the nation's first geologic repository designed to dispose of military TRU waste and for experiments with the storage of military high-level radioactive wastes. In response to national pressure to implement a disposal solution for spent nuclear fuel from commercial nuclear power plants, a DOE task force, (12) in March 1978, recommended that WIPP not only function as a salt research and development facility and repository for military TRU waste, but that it include "a demonstration of spent fuel disposal," i.e., commercial spent nuclear fuel. DOE supported this recommendation, as evidenced in its April 1979 Draft Environmental Impact Statement for WIPP, (13) prepared pursuant to the National Environmental Policy Act (NEPA), (14) which stated the WIPP's purpose to be "a licensed, full-scale repository for the permanent disposal of TRU waste," for experiments "with all types of nuclear waste," and to "receive as many as 1,000 (commercial spent fuel) assemblies emplaced in such a manner that they can be retrieved for 20 years if necessary, but without the expectation of doing so."
The state of New Mexico was offended by the DOE's proposal to make commercial nuclear waste disposal a part of WIPP's scope. Prior to DOE's consideration of WIPP for commercial nuclear waste disposal, the state of New Mexico had played no significant role in the DOE's decision making process; the state had simply accepted a role of reviewing and commenting on the safety-related aspects of the DOE's plans. (15) The DOE's decision to even consider commercial nuclear waste storage or disposal at WIPP was the first of several policy considerations that would shape the requirements WIPP would subsequently have to meet.
With regard to commercial nuclear waste storage and disposal in the U.S., Congress clarified roles and responsibilities of the various federal agencies in its Nuclear Waste Policy Act of 1982. (16) In this statute, the DOE was directed to locate and construct facilities for commercial high-level nuclear waste disposal. DOE's responsibility for management, control, and disposal of defense-related nuclear wastes continued. WIPP later became DOE's choice for disposal of defense-TRU wastes.
Congress Frames WIPP's Scope
In December 1979, Congress issued its first major mandate, the DOE National Security and Military Applications of Nuclear Energy Authorization Act of 1980, (17) regarding the potential waste repository near Carlsbad. In this statute, Congress said the purpose of WIPP was to provide a "research and development facility to demonstrate the safe disposal of radioactive wastes resulting from the defense activities and programs of the United States exempted from regulation by the Nuclear Regulatory Commission." (18) Congress also directed the DOE Secretary to enter into a written
"Consultation and Cooperation" agreement with the state of New Mexico by September 30, 1980. This latter requirement was imposed by Congress as a result of pressures from New Mexico's citizens and political officials.
THE WIPP CONSTRUCTION PHASE
In response to Congress' mandate, the DOE moved ahead to initiate full construction of WIPP. In 1980 the DOE finalized its NEPA Environmental Impact Statement (EIS), (19) which compared the impacts of several alternatives for TRU waste disposition. The primary alternatives considered in the 1980 EIS were as follows:
Alternative disposal methods to deep geologic disposal were also briefly considered, but rejected as impractical. The DOE rejected the "No-Action" alternative because it would leave TRU waste exposed to possible volcanic action or human intrusion. The final EIS considered three distinct phases: The Site and Preliminary Design Validation Program (SPDV); the construction phase; and the disposal phase. In January 1981, the DOE published its Record of Decision (ROD), (20) announcing its determination to proceed with the phased construction and operation of the WIPP project. The DOE also expressed its long-range view of the WIPP project, as follows:
The WIPP facility will dispose of defense transuranic (TRU) waste stored retrievably at the Idaho National Engineering Laboratory (INEL). By approximately 1990 all existing waste stored at INEL will have been removed to WIPP, and the WIPP facility would be in a position to receive and dispose of TRU waste from other defense-waste generating facilities. In addition, WIPP will include an experimental facility for conducting experiments on defense wastes, including small volumes of defense high-level waste. The high-level waste used for experiments will be retrieved and removed from the site prior to decommissioning of the WIPP facility.
Legal Challenges to DOE's Decision to Construct WIPP
The DOE's decision to construct and operate WIPP did not go unchallenged. Its decision to proceed with the phased construction and operation of WIPP resulted in immediate reactions from environmental groups and the New Mexico Attorney General. Lawsuits were filed within months after DOE's decision. Plaintiffs in these 1981 lawsuits included: the Citizens for Alternatives to Radioactive Dumping; (21) the New Mexico Attorney General; (22) and the Southwest Research and Information Center. (23) Defendants in the lawsuits were: the DOE; the Bureau of Land Management (BLM); the Department of Interior (DOI); and the respective directors of these entities. The DOI and BLM were named in these lawsuits because of the federal land (i.e., the WIPP site) withdrawn by these agencies and transferred to the DOE for the construction of WIPP. The DOE and BLM were authorized to manage and control federal public lands via the Federal Land Policy and Management Act (FLPMA). (24) The plaintiffs claimed that DOI and BLM lacked authority to withdraw federal land for WIPP's construction. The plaintiffs all sought an injunction prohibiting commencement of construction activities at the WIPP site. The New Mexico Attorney General also sought to force execution of the Congressionally mandated "Consultation and Cooperation" agreement with the state of New Mexico. At the time the lawsuits were filed, negotiations between the state and DOE were well underway. However, the parties had not yet reached a final agreement.
On July 1, 1981, the DOE and the state of New Mexico executed a "Stipulated Agreement," settling the litigation, and a "Consultation and Cooperation Agreement," as an addendum to the Stipulated Agreement. In general, these agreements required the DOE to conduct various tests, provide periodic reports to the state, and assist the state in resolving concerns such as funding, monitoring, and potential state liabilities. The state agreed to withdraw its application for preliminary injunction and the court "stayed" the lawsuits (25) in recognition of the parties' agreements to address the concerns at issue. The court subsequently ruled that the environmental groups failed to prove that continued construction of the WIPP would cause irreparable harm. This ruling was issued largely because DOE had promised, in its agreements with the state, to thoroughly test WIPP prior to waste emplacement. Resolution of the lawsuits allowed DOE to continue with site construction without the threat or burden of litigation. However, the many tests, experiments, reports and other conditions of the agreements, resulted in additional work and additional delays for WIPP.
UNEXPECTED REGULATIONS AND LEGAL CHALLENGES IMPACT WIPP
Numerous federal regulations impacted DOE in the 1980s. During the 1970s and 1980s, Congress enacted various environmental statutes which required compliance by federal facilities, including the federal government's highly secret nuclear weapons production facilities. Prior to the environmental law movement in America, the DOE and other defense agencies were primarily self-regulating, as related to nuclear materials production, management, and control. For the most part, these agencies maintained their own procedures and policies regarding management and control of the nuclear materials under their control. Congress had intentionally created this arrangement in earlier legislation, such as the AEA of 1946. This all changed in the 1970s and 1980s as the public demanded greater accountability of government agencies.
The "Mixed Waste" Dilemma
The Resource Conservation and Recovery Act (RCRA) of 1976, (26) established a federal/state structure to track and regulate "solid waste," which includes "hazardous waste." The Environmental Protection Agency (EPA) was given authority to implement and enforce RCRA. Congress also authorized EPA to grant the states the right to implement and enforce RCRA in lieu of EPA. In its RCRA legislation, Congress specifically excluded "source," "special nuclear," or "by product material" subject to the AEA from the requirements of RCRA, allowing these materials to remain under DOE's exclusive control. (27) Congress, however, did not specifically address radioactive waste that is "mixed" with RCRA hazardous constituents.
Throughout the construction phase in the early 1980s, DOE considered its radioactive mixed waste to be subject only to the AEA and not subject to the requirements of RCRA. When DOE issued its ROD in 1981, RCRA was not a major factor in WIPP's journey to waste receipt.
In 1986, EPA issued a notice in the Federal Register, stating its position that the hazardous waste components of "mixed wastes" were regulated by RCRA. (28) In 1987, DOE issued the "By Product Rule," (29) which concluded that the radioactive constituents of mixed wastes were "byproduct" and therefore subject to the AEA, and that only the hazardous constituents in mixed waste would be subject to RCRA. DOE's recognition that its mixed waste was subject to RCRA resulted in a number of additional regulatory requirements WIPP had to meet, including RCRA permit requirements. The DOE moved forward expeditiously to fulfill RCRA requirements.
The state of New Mexico was granted "mixed waste" authority by EPA in 1990, authorizing the state to implement the RCRA mixed waste program, with some exceptions. (30) With the state's new authority over the hazardous component of "mixed wastes," the DOE became subject to additional state oversight and authority. In addition to fulfilling the requirements of the Stipulated Agreement and the Consultation and Cooperation Agreement, the DOE would have to satisfy applicable RCRA requirements prior to radioactive mixed waste receipt or mixed waste disposal at WIPP. These new roles, responsibilities, and requirements created a new direction for DOE.
DOE's Supplemental NEPA Decision proposes a WIPP On-Site Test Phase
The DOE issued its Supplemental EIS (SEIS) in 1990, (31) analyzing potential environmental impacts resulting from changed circumstances. These circumstances included the elimination of planned experiments with high-level radioactive waste, and the introduction of phased experiments, conducting a thorough test phase in the WIPP underground prior to initiating disposal operations. Alternatives considered in the 1990 SEIS included:
In June 1990, the DOE issued its NEPA ROD (32) resulting from the SEIS analysis, in which it described the WIPP on-site Test Phase as follows:
This Test Phase will involve emplacing, in a fully retrievable manner, a limited quantity of TRU waste underground at the WIPP to conduct tests designed to collect data to reduce uncertainties associated with performance assessment predictions that are necessary to determine whether the WIPP would comply with Environmental Protection Agency (EPA) disposal standards.
At the time of the ROD, although DOE intended to place a limited quantity of TRU waste in the underground for testing purposes, the DOI had not authorized use of the land for placement of radioactive waste in the underground. DOI's prior withdrawals had been for the limited purpose of constructing the WIPP facility. However, in 1991, the DOI issued Land Order 6826 authorizing use of the federal lands comprising the WIPP site for radioactive waste testing. (33)
Legal Challenges to DOE's Decision to Proceed with an On-Site Test Phase
The DOI's grant of permission to DOE to use the WIPP site for on-site tests, coupled with a DOE announcement to receive wastes for test purposes, prompted a second series of lawsuits against the DOE, DOI, and BLM. The New Mexico Attorney General filed suit to block DOI's land withdrawal on October 9, 1991, (34) and the Natural Resources Defense Council (NRDC) filed suit on November 13, 1991. (35) The court consolidated the New Mexico and NRDC suits on November 15, 1991. (36)
Others subsequently intervened in the lawsuit, alleging that the DOE did not have authority to receive RCRA mixed waste at WIPP because it did not have a RCRA permit and did not have "interim status." (37) Under RCRA regulations, a hazardous waste disposal facility must have a permit or "interim status" prior to disposing of waste. (38) The DOE asserted that it was an "interim status facility" under RCRA, and therefore was allowed, under RCRA, to receive waste for test purposes pending receipt of a final RCRA permit.
To DOE's dismay, the court issued a permanent injunction on January 31, 1992. (39) DOE and DOI appealed the decision to the U.S. Court of Appeals for the District of Columbia Circuit. However, the appellate court affirmed the permanent injunction on July 10, 1992, prohibiting introduction or transportation of TRU waste into the state of New Mexico. (40) The court concluded that the DOI exceeded its authority under FLPMA when it withdrew land for use by DOE without providing required reports to Congress. Previously, DOE's plans had been slowed, now the DOE had been directed by the court to "stop" a planned activity to demonstrate the safe disposal of radioactive waste. With this injunction came DOE's reassessment of its strategies and schedules. It eventually required Congressional intervention for WIPP to once again regain momentum in meeting its legislative mandates.
Environmental Protection Agency (EPA) Radioactive Waste Standards
In addition to compliance with RCRA requirements, the DOE was also required to comply with EPA's radioactive waste standards. In 1970, Congress created the EPA, transferring AEC's function of establishing generally applicable environmental radiation protection standards to EPA. (41) Prior to this time, the AEC, had responsibility to develop and comply with its own radioactive waste standards and procedures, as Congress so authorized in the AEA.
The EPA's radioactive waste standards were in the development stages from the 1970s until the final environmental radiation protection standards were issued in 1985. (42) Lawsuits challenging the final standards were initiated by several groups. Then in 1987, a court decision vacated and remanded the standards to EPA. (43) According to the court, certain aspects of EPA's 1985 standards were arbitrary and capricious. Specifically found problematic were EPA's standards as related to individual and ground-water protection. The court remanded those standards found problematic as well as all of the other requirements, although they were either unchallenged or upheld. On rehearing, the court reinstated the management and storage standards, but left all of the disposal standards, including the individual and groundwater protection standards, in remand. (44) These standards remained in remand until Congress passed the WIPP Land Withdrawal Act (LWA) of 1992. (45)
The WIPP Land Withdrawal Act of 1992
Use of the WIPP facility for its Congressionally mandated purpose, i.e., demonstration of the safe disposal of long-lived radioactive waste, had been hindered and delayed at every turn since 1980. In 1992, Congress attempted to propel WIPP forward by passing the Waste Isolation Pilot Plant Land Withdrawal Act. (46) Congress expressly withdrew the public lands that had been needed for WIPP since the 1970s. Moreover, Congress reinstated EPA's radioactive waste disposal standards, with the exception of the individual and groundwater protection standards, and required EPA to establish criteria to determine DOE's compliance with the disposal standards. In December 1993, the EPA issued final radioactive waste disposal standards, (47) incorporating the remanded disposal standards and other radioactive waste standards that had been vacated by the court in 1987. EPA issued compliance criteria in February 1996. (48) The LWA also required DOE to develop a Compliance Certification Application (CCA). EPA was authorized to review the CCA and certify whether the WIPP will comply with the EPA's final radioactive waste disposal standards.
Once the EPA standards were finalized in 1993, DOE moved full speed ahead to demonstrate its compliance and environmental acceptability. There was now a degree of predictability which would place WIPP on a clear path to waste receipt. DOE now knew what it had to do to satisfy RCRA, and it knew what it had to do to satisfy the LWA.
DOE Changes its Strategies
Even though passage of the LWA conclusively withdrew public lands for WIPP, the statute also specified that the DOE must await issuance of the final radioactive disposal standards to proceed with the on-site test phase. This, combined with legal challenges to WIPP's "interim status" under RCRA, led the DOE to alter its course of action. The DOE recognized that the "test phase" could be performed in laboratories and provide greater benefit to achieving the WIPP's mission. In a DOE news release dated October 21, 1993, (49) DOE announced that tests using radioactive wastes would be conducted in laboratories rather than underground at WIPP. DOE explained, in part, that:
[B]y doing these tests in laboratories, we will be able to collect the right technical data more quickly and at a lower cost. This new plan will help build a more solid scientific foundation for the WIPP facility than conducting waste tests at the site because DOE and EPA can now focus on the real certification issues . . .
WIPP TODAY - ON TO WASTE RECEIPT
In order to provide proper focus on WIPP compliance programs and to provide a single contact with regulatory agencies and stakeholders, the DOE established an area office in Carlsbad, New Mexico in late 1993. (50) Prior to this reorganization, the primary DOE decision-makers for WIPP resided in Albuquerque, New Mexico, and opening the WIPP was one of many issues for these decision-makers to address. The Carlsbad Area Office (CAO) was given responsibility for the WIPP Program and responsibility to implement the National TRU Waste Program (NTP). The NTP was tasked to coordinate TRU waste matters with the DOE generator sites, such as coordinating issues regarding the WIPP TRU waste acceptance criteria. With renewed vitality, the CAO developed and began to implement an aggressive schedule towards completing all final regulatory requirements necessary for the commencement of WIPP waste disposal operations. Less than six months after its inception, the CAO issued the WIPP Disposal Decision Plan (DDP), (51) which listed all major compliance applications and reports the DOE was required to prepare.
Since the creation of the DDP, three major compliance documents have been developed: the Second Supplemental Environmental Impact Statement (SEIS-II); the RCRA Part B Permit Application; and the CCA.
DOE's Supplemental NEPA Decision to Proceed with Disposal
To satisfy NEPA requirements and a commitment made in the 1990 ROD, the CAO, in November 1996, issued a second Draft Supplemental Environmental Impact Statement (SEIS-II). (52) The SEIS-II examines the impacts of pertinent new information relative to WIPP disposal operations that has become available since 1990. Four action alternatives are evaluated in the SEIS-II. All action alternatives involve initiating TRU waste disposal at the WIPP, but vary with regard to the particular TRU waste stream that would be received, and the type of treatment that would be imposed prior to shipment. Two no-action alternatives were considered, each relating to dismantling and closing the WIPP with variations regarding the treatment and storage of the waste at the generator sites. A ROD resulting from the SEIS-II analysis is anticipated in 1997.
DOE Submits its RCRA Permit Application to the State of New Mexico
In response to RCRA permitting requirements, the CAO submitted its disposal phase RCRA permit application to the State of New Mexico in May 1995. The WIPP RCRA permit application addresses TRU mixed waste management activities for surface and underground facilities and outlines DOE's plans to operate the WIPP disposal facility in compliance with applicable RCRA requirements. The application is presently under consideration by the state of New Mexico. A final permit is expected in 1997.
DOE Submits it Compliance Certification Application to EPA
The CAO submitted its CCA for WIPP to the EPA on October 29, 1996. The CCA provides a basis upon which EPA can assess WIPP's ability to comply with the federal radioactive waste standards contained in EPA's regulations. The CCA represents the culmination of over 20 years of scientific and engineering work specifically dedicated to TRU waste isolation at the WIPP. The 21-volume application contains information in support of DOE's position that the WIPP will meet the quantitative and qualitative requirements of EPA's regulations. The EPA is expected to issue its certification by October 1997.
Congress' Latest Words on WIPP
In September 1996, Congress issued its latest legislation regarding WIPP, in the form of the WIPP Land Withdrawal Amendment Act (LWAA). (53) In this statute, Congress stated as follows:
It is the sense of Congress that the Secretary [of Energy] should complete all actions required under section 7(b) [Requirements for Commencement of Disposal Operations] to commence emplacement of transuranic waste underground for disposal at WIPP no later than November 1997, provided that before that date all applicable health and safety standards have been met and all applicable laws have been complied with.
The LWAA eliminated redundant regulatory requirements and reduced the waiting period for waste shipments after EPA's certification from 180 days to 30 days. With this reduced waiting period, the CAO's current schedule is to begin waste receipt for final disposal in November 1997.
In October 1996, WIPP received another vote of confidence towards opening. In its October 23, 1996 report, (54) a committee of the National Research Council, whose members were drawn from the councils of the NAS, the National Academy of Engineering, and the Institute of Medicine, stated the following:
Human exposure to radiation from nuclear waste in [the WIPP] is unlikely to exceed U.S. and international radiation protection standards. ... Unless the site is breached by humans sometime in the future, there is no credible, probable mechanism for release of radioactive material into the surrounding environment.
This report provides an independent opinion that the WIPP will meet applicable radiation protection standards, if the facility is not breached in the future. The DOE's CCA attempts to demonstrate that adequate controls will be in place to reduce the likelihood of a future breach of the repository.
CONCLUSION
From its earliest beginnings to the present, the DOE has remained true to Congressional mandates. During the 1970s and 80s, Congress mandated numerous changes to the traditional manner in which it had handled federal entities. These changes altered the manner in which federal organizations conduct business. With the rise in environmental protection legislation in the 1970s and 80s, and the move towards openness in government programs, national projects slowed as public concerns about environmental health and safety rose to the forefront of public debate. Also, unprecedented in its past history, Congress subjected its once secret AEC to standards promulgated by another government agency, the EPA. The Congress' prior philosophy was that each federal agency knew best how to develop and implement its own guidelines for the management and control of the agency's Congressionally delegated functions.
The DOE has overcome many hurdles, realigning its policies and strategies to be consistent with Congressional mandates. The public has been provided countless opportunities to address issues and concerns regarding WIPP. The DOE has, through its stakeholder outreach programs, made its scientific and technical information regarding the WIPP project available to the public. In view of the many questions that have been answered by DOE, with strong scientific and engineering demonstrations, the WIPP is ready to move to its final stage, waste disposal, upon EPA's certification.
REFERENCES