(last revised November 16, 2001)

by James Rauch

Combined with an AWOL U.S. Nuclear Regulatory Commission (NRC), Congress' 1997 transfer of the Energy Department's FUSRAP (Formerly Utilized Sites Remedial Action Program) to the U.S. Army Corps of Engineers (USACE) is producing cleanup fiascos at many old radioactive waste sites and also contaminating other, unlicensed facilities that should not be receiving this radioactive material. USACE recently issued an extremely weak "cleanup" decision for the radioactive contamination at the Linde/Praxair FUSRAP property in Tonawanda, NY. (Linde Air Products Co. operated a uranium refinery on this property under contract with the Army's Manhattan Project during World War II which supplied uranium for the first A-bombs, including the Hiroshima bomb.)

The fundamental problem has been NRC's failure to exercise control over the huge volumes of FUSRAP radioactive wastes, despite a 1978 law (UMTRCA) passed by Congress specifically directing NRC to regulate these wastes (see Kerr-McGee Chemical Corporation v. U.S. Nuclear Regulatory Commission ... , 903 F.2d 1, 284 U.S.App.D.C. 184). A local public interest group, F.A.C.T.S. (For A Clean Tonawanda Site), Inc., went to federal district court in June 1998 to challenge Army Corps' inappropriate selection of cleanup criteria and to require NRC to acknowledge its jurisdiction and to assume regulatory control of these wastes. See complaint.

Both components of the case, 98-CV-0354E(H) in the Western District of NY, were eventually dismissed on June 20, 2000 by Judge John T. Elfvin. The challenge of the Corps' cleanup decision (ROD) was dismissed on the ground that section 113(h) of CERCLA does not allow citizen suits seeking review of cleanup decisions until after a cleanup is completed. Interestingly, in spite of the fact that separate RODs have been issued for the Ashland properties and the Linde property, and although cleanup of the Ashland 2 property is now completed, the Army Corps has said that it will not "close out" completed properties until the whole Tonawanda site is completed. The second request, that NRC be declared the responsible regulator, was dismissed on a venue technicality; Judge Elfvin ruled the matter should have been brought in the Court of Appeals. F.A.C.T.S.' attorney expressed the opinion that the judge had discretion to make such a declaration.

The EPA, the NYS DEC, and independent radiation experts have severely criticized USACE's Linde risk analysis, which uses a very restrictive industrial use scenario to arrive at cleanup criteria that are 6 to 300 times weaker than those used in previous FUSRAP cleanups. The USACE decision would allow concentrations of uranium up to 554 pCi/g to remain in surface soil (first six inches) and up to 3,021 pCi/g to remain in subsurface soil.

The Energy Department had previously established a uniform soil uranium cleanup level of 60 pCi/g for Tonawanda, as part of an extensive environmental review process involving the preparation of the 1993 Draft Environmental Impact Statement for the site.

However, it has been NRC policy since 1981, implemented at several smaller sites around the country, to release for unrestricted use only those areas or properties where total uranium concentrations do not exceed 10 pCi/g. 10 pCi/g total uranium is equivalent to 5 pCi/g for each member of the decay chain, i.e. 5 pCi/g U-238, 5 pCi/g U-234, 5 pCi/g Th-230, 5 pCi/g Ra-226, etc.. Also, it is a violation of NRC rules to employ dilution as a means of achieving concentration limits -- by either averaging over clean or cleaner volumes (as USACE is doing at Linde/Praxair) or the physical blending down of higher concentrations with cleaner material.

Based on actual waste volumes removed in completed operations at Tonawanda compared to Energy Department figures, it is appears that USACE has also utilized soil blending, which to a certain extent is unavoidable in large earth moving operations. This is why it is essential that before any digging occurs the proper cleanup levels and removal methods be established, and also why F.A.C.T.S. sought a temporary restraining order when it brought suit over the earlier USACE Ashland cleanup decision.

Cleanup decision details

The Army Corps has used the CERCLA (Superfund) law to invoke two lax cleanup regulations that are neither legally applicable nor appropriate for the affected environment at the Linde site, a heavily populated area subject to intensive land use and re-use, including residential habitation.

The first regulation is a radium cleanup standard developed twenty years ago by EPA to address radon-related sickness in communities near remote western uranium mill tailings sites (radium decays to radon gas). This standard provides a 15 pCi/g cleanup level for subsurface soil (deeper than six inches) that is three times less stringent than its 5 pCi/g surface soil (top six inches) cleanup level -- the rationale being that the relaxed subsurface level was adequate to protect the remote residents from excessive levels of radon gas emanating from the uranium mill tailings piles. Uranium contamination of groundwater generally was not an issue at these sites at that time.

While EPA was promulgating this radium standard, 40 CFR 192, in 1981 the U.S. Nuclear Regulatory Commission adopted its comprehensive branch technical position (BTP) for cleanup of uranium from past operations which addresses all the radioactive members of the uranium decay chain, not just the radium [46 FR 52061-3, October 23, 1981]. Under this NRC policy, implemented at many sites across the country, for a property to be released for unrestricted use the total uranium concentration must not exceed 10 pCi/g at all soil depths. The appropriate cleanup of the Linde property for unrestricted future use, i.e. proper license termination, requires application of this NRC policy.

In a January 12, 2000 letter to the USACE, EPA states:

"EPA disagrees with the interpretation of the appropriateness of the use of 15 pCi/g as a subsurface radium cleanup limit, especially in light of the fact that your subsequent benchmarking of the dose from this radium concentration is used to derive the equivalent subsurface uranium concentration of 3,021 pCi/g as a limit. We do not recognize the 15 pCi/g radium level is an ARAR [applicable or appropriate and relevant requirement], and therefore do not accept that the technique of benchmarking is applicable in this circumstance."

The "technique of benchmarking" that EPA refers to is the second regulation that Army Corps has improperly selected to set lax cleanup levels at Linde. This recent NRC regulation, called the Uranium Recovery Facilities Rule [69 FR 17506, April 12, 1999], was developed specifically as a loophole for four currently operating western uranium mills which claimed they could not meet the NRC's general License Termination Rule, previously adopted on July 21, 1997 [at 62 FR 39058]. Prior to its taking effect, F.A.C.T.S. commented to NRC on the weak provisions of the Uranium rule and its inapplicability at FUSRAP sites because no impact assessment had been done for such sites. NRC subsequently agreed that this rule was not applicable to FUSRAP sites (see F.A.C.T.S. letter to NRC Chairman Jackson.)

Ironically, in an August 23, 1999 letter to USACE, DEC complains that contaminated material containing concentrations of uranium greater than 339 pCi/g (i.e., well below the USACE cleanup levels) is source material by definition and as such requires state regulation in the form of a radioactive materials license. In fact, the State Labor Department did have license control of the Linde FUSRAP material by Amendment 4 to License No. 1983-0143 issued June 9, 1978 under the authority of the state's Industrial Code Rule 38 [12 NYCRR Part 38]. This license was unlawfully terminated by the state in July of 1996, in violation of the decontamination and decommissioning requirements of section 38.23 of these regulations. (See F.A.C.T.S.' letter to Commissioner Sweeney.)

Of great importance, in that letter DEC does clarify the current "Performance Standard District" zoning classification of the Linde/Praxair property. Dwelling units, i.e. residential uses, are not prohibited. DEC concludes: "[e]xamples of industrial property being put to residential use are increasingly common. In fact, the day after the June 3, 1999 public hearing on the Linde site, on the front page of the local section of the Buffalo News was an article about a developer turning the Trico complex into apartments. Therefore, this Department concludes that residential uses of the property are strongly possible and that the USACE should use a residential use scenario as the basis for their dose modeling."

A group of local politicians called CANiT (Coalition Against Nuclear materials in Tonawanda), led by Congressman John LaFalce, Deputy County Supervisor Carl Calabrese and County Legislator Chuck Swanick, has misinformed the public by repeatedly stating that the current zoning status limits re-development to only commercial/industrial uses. Of course, zoning is generally not recognized by responsible agencies as a durable means to control future property use.

Improper waste disposal

Both the Army Corps and the Nuclear Regulatory Commission have been severely criticized by residents and officials in Utah, California, Idaho, and elsewhere for allowing the improper disposal of Tonawanda Site wastes. The local citizen group F.A.C.T.S. has consistently criticized the CANiT politicians for pursuing the use of physically unsuitable disposal sites as cheaper alternatives to proper, NRC-licensed long-term storage facilities. Several years ago, F.A.C.T.S. opposed CANiT when it actively sought the use of the Newmont/Dawn Mine site near Spokane, Washington -- an unsuitable storage location already plagued by groundwater contamination. In their sudden rush to make this fifty year old problem go away, CANiT politicians have not only supported the USACE's inadequate "cleanup" but also encouraged the use of unsuitable waste storage sites, thereby setting up other communities for future problems.

USACE is shipping large volumes of Tonawanda's contaminated soil to International Uranium Corporation's White Mesa mill near Blanding, Utah for supposed "reprocessing" under the terms of a special amendment to IUC's license granted by NRC. The White Mesa mill is not licensed as a disposal facility for FUSRAP wastes. The State of Utah and public interest groups have formally protested to NRC that the FUSRAP wastes brought in as a result of this reprocessing amendment are not suitable for this facility. It is also claimed the reprocessing may be a sham since it was previously determined in three separate studies commissioned by the Energy Department that volume reduction treatment (i.e. "reprocessing") of Tonawanda's soils is not economically feasible. It is possible that Tonawanda's wastes may be going directly into the White Mesa mill's disposal area. NRC denied all of the petitions.

Summer of '99, the State of California became upset when it discovered that contaminated debris resulting from an earlier "interim action" involving the demolition of Linde Building 30 had been sent to a Safety Kleen landfill near Buttonwillow, CA . (See "Shoddy Interim DOE Cleanup Unmasked", 3-21-97 Buffalo ALT".) This hazardous waste facility is not licensed to receive FUSRAP radioactive wastes. Senator Barbara Boxer (CA) led the call for a Congressional hearing into USACE's FUSRAP waste disposal practices which was originally scheduled for the fall of 1999.

At the urging of state radiation protection officers, including NYS DEC's Paul Merges, this hearing was expanded to include consideration of USACE's lack of authority to make radiological cleanup decisions. NRC was asked to appear. The delayed hearing, which had been re-scheduled for April 12, 2000 was cancelled following an expose of Congressional dealings involving the FUSRAP program appeared in an April 10, 2000 Washington Post story by Mike Grunwald.

Back in the 80's Linde itself demolished another FUSRAP-contaminated structure, Building 37. Despite a written request by F.A.C.T.S. to the Energy Department, the identity of the local landfill which illegally received radioactive material from this building remains publicly unknown.

After demanding that Building 14 (the only Manhattan Project building built by Linde) be decontaminated and after several unsuccessful attempts to decontaminate this building to unrestricted use levels which cost a total of almost $10 million, Praxair now wants the building to be torn down and to be reimbursed for its full value (the Tonawanda assessor's office reported its full value assessment as $322,000 in 1997) plus $1.5 million in improvements that were made following its "decontamination". Ironically, the Energy Department's Environmental Impact Statement had called for this building and others to be demolished at a cost of approximately $1.5 million.