A three-judge panel at the New Mexico Court of Appeals has upheld a state environmental agency’s approval of the Department of Energy’s revised method for calculating underground waste volumes at the Waste Isolation Pilot Plant.
The new counting method, approved as part of a state permit modification by the New Mexico Environment Department in December 2018 was not arbitrary, capricious or an abuse of discretion, the panel ruled in its Nov. 9 decision.
Revising the calculation is crucial to fitting most, though not all, of the transuranic waste expected to be generated by planned National Nuclear Security Administration (NNSA) plutonium missions within the disposal facility’s existing volume caps.
Advocacy groups such as Nuclear Watch New Mexico and Southwest Research and Information Center did not immediately say Monday if they might pursue further legal action. The groups appealed DOE’s new “volume of record” reporting system for the Waste Isolation Pilot Plant (WIPP) in January 2019. The court action came weeks after the then secretary of NMED, during the final days under Gov. Susana Martinez (R), approved the permit modification requested by DOE and its prime contractor Nuclear Waste Partnership.
The citizen groups had hoped the new administration of Gov. Michelle Lujan Grisham (D) might undo the ruling, but that did not happen. Instead, the appeals court said that the 1992 WIPP Land Withdrawal Act that created the mine did not specify any particular method for measuring transuranic waste volumes in the underground, and therefore that the traditional method of measuring the volume of a shipment’s outermost waste container was not the only legal way to account for underground volumes.he changes adopted in 2018 would allow DOE to report waste two ways— both the traditional manner of taking the container’s “outermost” volume and a new way focusing on the actual amount of transuranic waste inside.
The change is designed to prevent a de facto “underutilization” of the disposal site that is limited by the Land Withdrawal Act to 62 million cubic feet, according to the appeals court.
The court said DOE and its contractor must still seek state permission before building new waste disposal panels or taking other actions that would tend to prolong the life of the facility. The WIPP critics have argued in other ongoing legal proceedings that WIPP was initially meant to start winding down operations in 2024 and the federal agency is seeking to keep WIPP active “forever” or at least to the mid-century mark.
