Judge won't block WIPP shipments

["Michael C. Baker" <mcbaker@lanl.gov>]

22 Mar 1999
Judge won't block WIPP shipments

WASHINGTON (AP) - A federal judge refused today to block the 
shipment of radioactive waste to a permanent federal disposal 
site in New Mexico, opening the way for the first waste shipments 
possibly within days. 

New Mexico and four environmental groups had asked U.S. District 
Judge John Garrett Penn to issue an injunction preventing the 
Energy Department from transporting 36 containers of waste to 
the site near Carlsbad, N.M., until the state issues a hazardous 
waste permit. 

But Penn, in declining to grant the injunction, said the state 
and other plaintiffs had not demonstrated that "they will suffer 
irreparable injury" if the shipments are sent now, nor that had 
they shown "a likelihood of success" in blocking the shipments, 
altogether. 

The Energy Department had argued the wastes, although radioactive, 
did not contain toxic chemicals covered by the state's hazardous 
waste law and that the site has been deemed safe and ready to 
operate. Energy Secretary Bill Richardson has said he considers 
the Waste Isolation Pilot Plant near Carlsbad as safe and ready 
to accept so-called "transuranic" radioactive wastes. 

The department has notified New Mexico officials that it planned 
to begin shipments March 26, pending a favorable ruling by Penn. 
A department source, speaking on condition of anonymity, said 
shipments are expected "within days." There was no immediate 
comment from New Mexico officials. 

The first shipments involve 36 drums of radioactive waste from the 
Los Alamos National Laboratory, also in New Mexico. Transuranic 
waste destined for WIPP is radioactive waste left over from federal 
weapons production, such as clothing, tools, rags and other 
contaminated material. 

New Mexico officials had maintained that the shipment should be 
held off until the state's Department of Environment issues a 
hazardous waste disposal permit. The state also argued that WIPP, 
as the disposal site is commonly known, was not fully licensed to 
accept waste until the state action. But Penn said the Los Alamos 
waste, although radioactive, does not fall under federal or state 
hazardous waste laws because it does not contain toxic chemicals 
subject to those laws. Penn also ruled that a 1992 injunction 
against opening the site did not apply because it pertained to a 
"test phase" long since passed. 

Justice Department lawyers argued in a hearing before Penn on 
March 12, that the WIPP site had been approved by the federal 
Environmental Protection Agency, and that the Los Alamos shipments 
were "non-mixed" waste, meaning they did not contain toxic chemicals 
subject to a state hazardous waste permit. 

''If you can bring in the waste before the permit, we might as well 
not have a permitting process,'' Lindsay Lovejoy, the state's deputy 
attorney general, told the judge at the hearing. To allow shipments 
now, he argued, would disrupt the permit process.

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