For over two decades, the U.S. Nuclear Regulatory Commission (NRC) has failed to take action to protect people from the damaging effects of the millions of tons of radioactive uranium mill tailings that were generated prior to 1978, predominantly as a result of the Manhattan Project and subsequent early A-bomb production activities. NRC's lack of action at these early radioactive sites is in direct violation of federal law and NRC's own regulations.

In WNY, there are a number of these sites including the Simonds Saw and Steel facility (now owned by Guterl Steel) in Lockport, the Electro Metallurgical Company/Union Carbide (now US Vanadium and others) in Niagara Falls, the large Lake Ontario Ordnance Works toxics/radwaste dump near Lewiston and the adjacent Niagara Falls Storage Site where some of the tailings contain so much radium that the National Academy of Science has determined them to be no different in hazard than high level radioactive waste. Erie County has the five Tonawanda Site properties, including the site of the former Linde Air Products/Division Union Carbide uranium refinery (now Praxair). Many of these neglected nuclear waste sites have been listed in the federal Energy Department's Formerly Used Sites Remedial Action Program (FUSRAP) which is now run by the controversial Army Corps of Engineers (Corps), the very agency originally responsible for much of the mess.

Failure of Nuclear Regulatory Commission

The fundamental problem at these and other FUSRAP sites nationally is that NRC has ignored certain responsibilities set in the Atomic Energy Act. In 1978, Congress specifically directed NRC to regulate these wastes when it enacted the Uranium Mill Tailings Radiation Control Act (UMTRCA) of 1978, which amended the Atomic Energy Act of 1954. Uranium mill tailings were placed in a new regulatory category called lle.(2) byproduct material. Section 84 of the act states:

"(t)he Commission shall insure that the management of any byproduct material, as defined in section 11e.(2), is carried out in such manner as ... the Commission deems appropriate to protect the public health and safety."

The legislative history of UMTRCA is clear: Congress intended that the management of all 11e.(2) byproduct materials, including those wastes generated prior to 1978, be carefully regulated by NRC.

NRC's own regulations, in place since the enactment of UMTRCA at 10 CFR Part 40.2b, state:

"(t)he Commission will regulate byproduct material as defined in this part that is located at a site where milling operations are no longer active, if such site is not covered by the remedial action program of title I of the Uranium Mill Tailings Radiation Control Act of 1978. The criteria in appendix A of this part will be applied to such sites."

In 1990, ten years ago, a U.S. Court of Appeals found that Congress intended there be no exceptions and NRC should regulate all 11e.(2) byproduct material (Kerr-McGee Chemical Corporation v. U.S. Nuclear Regulatory Commission, 903 F.2d 1, 284 U.S.App.D.C. 184). Judge Buckley concluded:

"(t)he UMTRCA was intended to bring previously unregulated radioactive end products of the source material extraction process within the scope of NRC regulation and to provide a comprehensive remedial program for the safe stabilization and disposal of uranium and thorium mill tailings. The NRC's interpretation of section 11(e)(2), however, places a portion of the thorium tailings from Kerr-McGee's West Chicago facility outside of the regulatory regime even though they are in all relevant ways identical to tailings found by the NRC to be byproduct material and thus subject to the UMTRCA's remedial program. The NRC's construction thus frustrates the purposes of the UMTRCA by rendering it inapplicable to waste material that it was clearly intended to reach and recreating a jurisdictional gap it was intended to close."

Following this ruling, NRC still failed to license or otherwise to regulate the millions of cubic yards of 11e.(2) materials at FUSRAP nuclear sites in New York and around the country.

Current NRC Chairman's Involvement

It is ironic that the current Chairman of the NRC, Richard Meserve, was the lead attorney for Kerr-McGee in this case. F.A.C.T.S. (For A Clean Tonawanda Site), Inc.'s 1998 suit, requesting the U.S. District Court for the Western District of N.Y. to issue a declaration that NRC has jurisdiction to regulate Tonawanda's FUSRAP wastes, was dismissed this past June under the discretion of Judge Elfvin over a venue technicality. Also in 1998, the Natural Resource Defense Council filed a petition asking NRC to license the transfer of FUSRAP 11e.(2) wastes. The petition was dismissed by NRC. (See NRC decision).

Last February, Idaho's Snake River Alliance and Envirocare of Utah each brought additional section 2.206 petitions requesting NRC assume its responsibilities under UMTRCA to license these wastes. Under the serious circumstances, an expedited hearing was requested. On December 13, 2000, NRC again rendered a misguided decision that it will not assume its legal obligation to regulate the FUSRAP materials. This past spring, Chairman Meserve had indicated that NRC would need more money from Congress before it would assume this responsibility. See item 4 of Chairman Meserve's March 8, 2000 letter to Utah's Senator Bennett on this issue.

Army Corps of Engineers Fouls Up, Congress Approves

Today -- three years after Congress transferred funding for the FUSRAP from the Energy Department to the U.S. Army Corps of Engineers, two years after Congress directed the Corps to implement the program using the CERCLA (Superfund) law, and one year after the House further stated in its FY 2000 appropriation bill that it did not intend that the Corps be required to submit to NRC oversight -- the Corps is hastily implementing deficient onsite cleanup decisions often combined with improper offsite waste disposal, in order to reduce total program costs.

The Corps unscrupulously defends its implementation of flawed CERCLA remediations at FUSRAP sites as being justified by these Congressional budget directives. However, there can be no valid justification for the Corps issuing deficient CERCLA cleanup decisions wherein fundamental "appropriate and relevant" NRC, EPA and state regulations and policies are ignored, as has occurred at Tonawanda, NY.

The Corps' soil cleanup levels for the Linde/Praxair property are ten to fifty times less stringent than the levels previously prescribed by the Energy Department in its 1993 $6 million environmental impact statement for the Tonawanda Site.

The House Subcommittee on Energy and Water Development apparently recognizes that under the Atomic Energy Act the Energy Department is legally responsible for the FUSRAP wastes. Yet, in the last four appropriation cycles, this subcommittee, and the majority of Congressmen, have irrationally chosen to ignore Energy's expert health and safety based cleanup recommendations in their single-minded pursuit of a cap on total FUSRAP spending. (See excerpt of House report for FY2000.)

As a result, the Corps is mired in controversy. Community and environmental groups and agency officials are protesting its flawed "cleanups". In 1999, California's Senator Barbara Boxer protested the illegal disposal of thousands of tons of 11e.(2) material from Tonawanda's Linde Building 30 at a Safety-Kleen facility in Buttonwillow, California. See Washington Post article. This Washington Post expose of the Congressmen involved in the transfer of the FUSRAP program from the Energy Department to the Army Corps resulted in a scheduled, then delayed, Congressional hearing into the Corps' improper dumping. The much-needed investigative hearing has still not been held.

Meanwhile, the Corps continues to ship tens of thousands of cubic yards of 11e.(2) contaminated soils from the Tonawanda site properties for disposal at the already problematic International Uranium Corporation mill site in Blanding, Utah under a sham "alternate feed material" scheme. See Army Improperly Selects Cleanup Criteria.

Corps Illegally Dumps Nuke Waste in NY

Last spring the NYS Department of Environmental Conservation learned that 25 tons of radioactive debris from Linde's Bldg. 30 were illegally dumped in IWS's Schultz Landfill in Cheektowaga, NY, a RCRA Part D facility located just east of Buffalo (see waste disposal summary for Linde Building 30). This was done without the approval of NY state. DEC had previously entered into a Memorandum of Understanding with the Corps containing provisions for cooperation with the Corps in its actions at the NYS FUSRAP sites, including remuneration for specified DEC services provided.

This previously undisclosed action by the Corps belatedly prompted DEC's Director of the Bureau of Radiation and Hazardous Sites Management, Paul Merges, to establish an emergency regulation. The regulation temporarily amended the state's Part 380 radioactive discharge regulations in an attempt to stave off more illegal disposal of above-NRC-criteria 11e.(2) wastes by the Corps in New York State landfills. This emergency regulation was effective July 31, 2000 for a period of 90 days. Dr. Merges has said that no action is contemplated to correct the illegal dumping by the Corps at the Schultz Landfill as "The regulation is not retroactive."

And yet, for over three years neither Governor Pataki's DEC nor NYS Attorney General Elliott Spitzer have acted on citizen requests that the state take legal action to force the lawful federal regulation of these FUSRAP wastes by NRC.

Lacking a decision by NRC in the aforementioned petitions before the emergency regulation expired, DEC extended the emergency regulation and simultaneously gave notice of intent to promulgate a permanent amendment which it claims will prevent additional improper dumping within New York State.

It is important to understand that this amendment only attempts to limit a wider dispersal of the adverse impacts within New York resulting from NRC's failure to discharge its responsibility under UMTRCA to regulate all 11e.(2) radioactive byproduct materials, including the pre-1978 FUSRAP 11e.(2) materials. The Corps' deficient cleanup criteria for the Tonawanda Site properties, established under the Congressionally-ordered CERCLA process, remain in place.

Also, DEC says that Corps' dumping of the FUSRAP radioactive material, indistinguishable in make-up and hazard from other 11e.(2) materials that NRC has chosen to regulate, within NYS will be prevented by the amendment. However, Part 380 contains a variance provision granting DEC discretion in issuing exemptions to the rules. This poorly defined provision, in regard to the special, long-term hazardous nature of these materials, could potentially result in significant further spread of this contamination within NYS as a result of political pressure being brought to bear upon DEC personnel.

Through all of this, Congressman John LaFalce and CANiT, LaFalce's ex-officio group of local politicians that has supported the Army Corps' mismanagement of remediation activities at Tonawanda, have not called for the clearly necessary (let alone legally mandated) NRC oversight to ensure implementation of the legitimate cleanup criteria and practices combined with transfer of the wastes to NRC-licensed, long-term storage facilities.

In fact, CANiT has joined Praxair, the owner of the contaminated property, in submitting extensive written comments vigorously opposing the proposed amendment.

Under the terms of Linde's original contracts with the federal government, which are available to the company, Linde's successor Praxair is capable of asserting its rights to proper cleanup of its property to NRC's unrestricted use criteria. Why Praxair has not done so is puzzling. The contamination left by the Corps clearly reduces the property's value. It is ironic that in their comments the CANiT politicians, who supported the deficient cleanup criteria, have complained about this very problem. Perhaps Praxair's failure to sue for proper cleanup is related to the numerous government contracts the company has enjoyed over the years and continues to enjoy.

It is disconcerting that a local corporation would choose to act so irresponsibly. But the failure of our elected representatives to protect the overriding long-term public interest in this matter is even worse.

An excellent series of articles examining the serious impacts of government and corporate mismanagement at the early A-bomb sites is available in the USA Today archives at: http://www.usatoday.com/news/poison/cover.htm