The New Mexico Court of Appeals upheld a permit modification allowing the Department of Energy and its contractor Nuclear Waste Partnership (NWP) to change how the volume of transuranic (TRU) waste emplaced at the Waste Isolation Pilot Plant near Carlsbad is calculated.
In 2018, the New Mexico Environment Department (NMED) approved the permit modification allowing the DOE and NWP to calculate the volume of TRU waste disposed of at WIPP based on the individual waste drums themselves rather than the external overpack that holds the drums. By excluding the dead space surrounding the waste drums, WIPP’s TRU waste storage capacity increased by about one-third without exceeding the capacity limit of 6.2 million cubic feet set by the WIPP Land Withdrawal Act (LWA), helping prevent the premature closure of the geologic repository.
The NMED’s decision to approve the permit modification was immediately appealed by the Southwest Research and Information Center and Nuclear Watch New Mexico, which argued that the modification was contrary to law, arbitrary and capricious, and an abuse of discretion.
The order: In a November 9 opinion, Judge Kristina Bogardus affirmed NMED’s order approving the modification, with judges J. Miles Hanisee and Shammara Henderson concurring. In her opinion, Bogardus noted that prior to the permit modification, nothing in WIPP’s permit explicitly stated how the volume of waste should be determined.
Bogardus also said that the modification request did not seek an increase in WIPP’s disposal capacity, but rather sought to clarify that the maximum capacity of the WIPP facility as it pertained to the permit under the Resource Conservation and Recovery Act was based on the TRU mixed waste capacities of individual hazardous waste management units rather than the limitation established in the LWA.