ALBUQUERQUE - The U.S. Department of Energy argues in documents filed in federal court that it should be allowed to open a nuclear waste dump in New Mexico early next year without a state permit for hazardous waste.

DOE contends no state permit is needed for nuclear waste that does not contain chemical waste specifically regulated by the state, such as lead and solvents.

The site is scheduled to begin to accept some of Hanford's transuranic wastes in 1999.

DOE put forth its argument in a 45-page brief that urged U.S. District Judge John Garrett Penn of Washington, D.C., to lift a court order he issued nearly seven years ago blocking the Waste Isolation Pilot Plant from opening.

Penn in August had delayed a hearing on a petition filed by New Mexico Attorney General Tom Udall and several anti-nuclear groups seeking to block movement of waste to the Southeastern New Mexico repository because of the lack of a state permit.

Now that DOE has filed its brief, the state attorney general's office and the environmental groups will have 30 days to file their arguments. The DOE has said that will be followed by a hearing after Penn has reviewed the material.

If Penn decides in favor of the Energy Department, the earliest the waste repository 26 miles east of Carlsbad could be opened would be the end of January, said department spokeswoman Anne Elliott in Washington, D.C.

The repository already has been certified by the U.S. Environmental Protection Agency for disposal of radioactive waste, but the state Environment Department contends the permit it plans to issue next summer is the only mechanism by which WIPP is environmentally regulated.

And state regulators have raised concerns about DOE's plans to ship waste to WIPP.

The lawsuit that led to Penn's order was filed in 1991 by environmental groups, the state attorney general's office and Bill Richardson, then a New Mexico congressman.

Richardson, who has since been removed as a plaintiff in the lawsuit, now heads the Energy Department and could make the final decision to open WIPP. He has said he wants WIPP opened as soon as possible but he has not responded directly to questions about his plans should he receive court permission to open the repository before the state permit is issued.

Meanwhile, there also remains a federal lawsuit filed this year that seeks to force DOE to start the certification process over from the beginning, which could delay the opening at least two or three years.