Sw. Research & Info. Ctr. v. N.M. Env't Dep't
| Decision Date | 11 July 2014 |
| Docket Number | 32,499. |
| Citation | 336 P.3d 404 |
| Parties | SOUTHWEST RESEARCH AND INFORMATION CENTER and Margaret Elizabeth Richards, Plaintiffs–Appellants, v. NEW MEXICO ENVIRONMENT DEPARTMENT, Defendant–Appellee. In the Matter of the Application for a Class 2 Modification for Shielded Containers for Remote–Handled Transuranic Waste at the Waste Isolation Pilot Plant. |
| Court | Court of Appeals of New Mexico |
Lindsay A. Lovejoy, Jr. Santa Fe, NM, for Appellants.
New Mexico Environment Department, Charles de Saillan, Special Assistant Attorney General Santa Fe, NM, for Appellee.
Kenneth J. Gonzales, United States Attorney, District of New Mexico Michael H. Hoses, Assistant United States Attorney, Albuquerque, NM, United States Department of Energy, Environment and Natural Resources Division, Robert G. Dreher, Acting Assistant Attorney General Eileen T. McDonough, Environmental Defense Section Washington, D.C., for Intervenor United States Department of Energy.
{1} This case was submitted to a panel of this Court in December 2013. As will be discussed in detail in this Opinion that follows this preface, the appeal raised legal, procedural questions related to the New Mexico Environment Department's (NMED) approval of a permit modification request to allow the WIPP site to accept waste in a newly developed shielded container. As this Court was working toward issuance of an opinion in this matter, news of the February 2014 fire and radiation leak at the WIPP site led the Court to determine that prudence warranted postponing the issuance of an opinion until more was known about the February 2014 incidents. In April 2014, we set a hearing for June 26, 2014, and ordered the parties to apprise the Court of the impact of the recent developments, if any, on the issues before the Court in this appeal. The hearing notice stated, in part:
The Court in particular requests the views of the parties as to whether it should continue its analyses and deliberations at this time in light of the uncertainty about what may or may not be required or changed in the future in regard to operations and safety equipment that may have some impact on the issues before the Court.
Attorneys representing NMED, the federal Department of Energy (DOE), and Southwest Research and Information Center (Southwest Research) presented their respective views in the June 26, 2014, hearing.
{2} All parties agreed in the hearing that the WIPP site was closed and that it was not possible to estimate, with any degree of certainty, when the site would open. Southwest Research indicated that the site may never again be reopened given the extent of the contamination of the site. Based on the facts known to date, the extensive amount of investigation and analysis devoted to resolving the issues and the amount of money being allocated by Congress for recovery and opening, NMED was confident that the site would open at some point. DOE also expressed confidence that the site would open, but likely not before 2015 or 2016.
{3} Southwest Research's position at the hearing was that it was premature to make a decision on the propriety of the shielded container-related modification given the many uncertainties, including, without limitation, what caused the radiation leak, whether a decision must be made to close WIPP permanently, whether, if WIPP is opened at some point, the opening will be subject to material changes in drums or shielded containers, in procedures for storage, and in infrastructure requiring a redesign of the WIPP site and its functions. Southwest Research requested that this Court remand the matter to NMED with instructions to revisit the approval of the shielded container-related permit modification request. In Southwest Research's view, remand would allow NMED to consider the propriety of the permit modification in the context of any changes to WIPP that will likely be required as a result of the February 2014 incidents before the facility may open.
{4} NMED and DOE shared a view that it was not likely that anything that arose from the ongoing investigations and analyses of the February 2014 incidents would impact the issues in the case before this Court. NMED and DOE indicated that there was no reason to believe that changes relating to waste storage in the future, upon the opening of the site would impact or affect the storage of shielded containers as allowed in the present modification, and that all of the issues in the present appeal had been fully aired before the NMED, and that, therefore, a decision from this Court was warranted. Further, NMED and DOE expressed their desire for an opinion in the present appeal in order to provide some certainty for planning purposes with respect to the shielded containers in the context of developing plans to reopen the WIPP site. NMED and DOE also gave assurances that if, during the continuing investigations and analyses of the February 2014 incidents and issues arising out of those incidents, it was determined that any changes required could have an impact on the storage of shielded containers, NMED and DOE would address that as it arose and, if necessary, vacate or amend the relevant permit modification.
{5} This Court required the June 26, 2014, hearing because it was clear that the February 2014 incidents and the ongoing extensive investigations and analyses were a matter of important and ongoing public interest. After the discussions at the hearing, the Court has determined to address the merits of the issues on appeal.
{6} In the Opinion that follows, we affirm NMED's approval of the permit modification request to allow WIPP to accept shielded containers. In issuing this Opinion, we point to four important circumstances. First, when this case was submitted to the Court, the February 2014 incidents had not yet occurred. The parties have devoted considerable time and expense to this case, which involves issues that may recur concerning the permit modification process. Second, other than the uncertainty that will not be fully quelled until the numerous investigations into the February 2014 incidents are complete and the conclusions reported, there is nothing before the Court at this time indicating that there will be any changes at WIPP that will impact the issues before this Court. The facts at this point do not indicate that either the fire or the leak was in any way related to a shielded container or its storage at the WIPP site. Third, based on the statements and representations of NMED and DOE, implementation of changes at WIPP may require a permit modification or modifications that may include necessary material changes concerning the storage of shielded containers. Fourth, regardless, NMED has assured the Court that, as regulations require, it will address any changes that may impact the storage of shielded containers, including whether the permit modification related to shielded containers should be amended, suspended, or revoked.
{7} Appellants Southwest Research and Information Center (Southwest Research) and Margaret Elizabeth Richards appeal a decision by NMED to modify the operating permit for the Waste Isolation Pilot Plant (WIPP or the facility). The modification allows the addition of a shielded container to the facility that, in turn, will allow remote-handled waste to be managed within WIPP under the protocols applicable to contact-handled waste. At issue is whether the permit modification request complied with the applicable regulations and whether NMED appropriately approved the modification under Class 2 procedures that do not require a public hearing, rather than Class 3 procedures that do require a public hearing. We affirm NMED's decision.
{8} WIPP is an underground repository for defense-related transuranic radioactive waste (waste) near Carlsbad, New Mexico. WIPP was constructed and opened pursuant to the Waste Isolation Pilot Plant Land Withdrawal Act of 1991, Pub.L. No. 102–579, 106 Stat. 4777 (1992), Pub.L. No. 104–201, 110 Stat. 2422 (1996). WIPP is federally owned and is operated by DOE and a private contractor, Nuclear Waste Partnership LLC (collectively, the Permittees), pursuant to a permit issued in 1999, and modified in 2006, by the Secretary of NMED.
{9} The permit is governed by the New Mexico Hazardous Waste Act, NMSA 1978, §§ 74–4–1 to –14 (1977, as amended through 2010), and the New Mexico Hazardous Waste Management Regulations. See § 74–4–3(D), (F) (); see also NMSA 1978, § 74–1–8(A)(13) (2000) (); § 74–4–4(A) (same); 20.4.1.1 to .3 NMAC (6/14/2000) ( that the hazardous waste management regulations applicable to the storage of hazardous waste were adopted by the Environmental Improvement Board pursuant to the Board's statutory authority). Throughout this Opinion, we refer to the actions of the director or the secretary as those of NMED. The Hazardous Waste Act comports with its federal analog, the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 to 6992k (2006), and therefore, NMED is authorized to administer and enforce the state hazardous waste management program under the Hazardous Waste Act in lieu of a federal program.1
{10} Two categories of waste are stored at WIPP: contact-handled and remote-handled. Contact-handled waste is that with a surface dose rate not greater than 200 millirems per hour, which can be handled manually without personnel protective equipment. See Pub.L. No. 102–579, § 2(3), 106 Stat. at 4777 (defining contact-handled waste). WIPP was permitted to and began receiving contact-handled waste in 1999. Remote-handled waste is that with a surface dose rate of 200 millirems per...
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