July 29, 2007
Buffalo District, US Army Corps of Engineers
1776 Niagara
Street
Buffalo, NY 14207-3199
Subject: F.A.C.T.S.' comments on Proposed Plan for the
Tonawanda Landfill Vicinity Property Site
1) This "no action" proposal is based on an assumption that
current and future uses of this property will be very limited both as to the
annual hours and the routes of exposure to the radioactive materials
present on the site. This is clearly inappropriate for this intensively used
residential area. Given the highly favorable characteristics of this locale for
intensive uses (including farming) and the long-term hazardous nature of the
materials (hundreds of thousands of years), the suitable exposure scenario for
this property is "resident farmer."
2) Army Corps selection of such a limited exposure scenario for
this location is a misapplication of the
CERCLA (Superfund) risk assessment process that supports F.A.C.T.S.'
assertion that Congress took FUSRAP away
from the DOE and directed Army Corps to utilize CERCLA processes at the
remaining FUSRAP sites with the intent of limiting cleanup costs rather than of
performing the long overdue, protective cleanups required by the applicable
cleanup guidelines (see comment No. 6 below).
3) This site has been designated as a "vicinity property" of
the FUSRAP Linde property. In reality, all the other Tonawanda Site properties
- Ashland 1, Ashland 2, and Seaway - are vicinity properties of Linde in that
they were contaminated by materials sourced from Linde. As such this property
and the other Tonawanda FUSRAP Site properties properly fall under the legal
framework and associated cleanup guidelines that pertain to the Linde property.
4) In 1978 Linde was issued a radioactive materials license for
the purported purpose of controlling exposures to the
MED/AEC radioactive materials (the proper
purpose of such a license) previously illegally abandoned on the site. However,
its practical purpose was to enable the Department of Energy (DOE) to avoid
Linde being placed in Title I of the soon-to-be-enacted
UMTRCA along with the western uranium mill
sites, an action that would have required prompt federal cleanup of the site.
(See Enclosure 2 of FACTS March 3, 1997 letter to former NYS Department of
Labor Commissioner Sweeney. This letter is in the administrative record for the
Ashland properties; it is incorporated here by reference and may also be found
on the FACTS website at http://factsofwny.org/sweeney.htm.)
Instead, NY State's placement of this license amendment put Linde under the
NRC's UMTRCA Title II regulations. NYS has been an
NRC Agreement State (i.e., it was delegated licensing authority) since
October 1962. However, NYS did not promulgate the radiation protection
regulations required by UMTRCA's Title II, and therefore licensed regulation
under UMTRCA should have reverted to the NRC. But NRC failed to exercise any
Title II regulatory control over the Linde contamination or, for that matter,
the contamination at several other FUSRAP sites around the country where
MED/AEC had illegally left behind radioactive materials at levels well above
standards. Combined with MED/AEC's initial abandonment of these sites, NRC's
post-UMTRCA failure to regulate has resulted in decades of illegal,
uncontrolled radiation exposures to persons/workers at all these FUSRAP sites.
5) The Linde license amendment No. 4 of 1978 covering the
MED/AEC uranium/thorium/radium materials was illegally terminated by the NYS
Department of Labor in 1995: neither decontamination to the requirements of
State Code Rule 38 nor any soil cleanup was performed prior to the termination
of license amendment No. 4. FACTS' March 3, 1997 letter to former NYS
Department of Labor Commissioner Sweeney is in the administrative record for
the Ashland properties and is incorporated here by reference; it may also be
found on the FACTS website at http://factsofwny.org/sweeney.htm.
6) The legitimate soil cleanup requirements for the Tonawanda
Landfill property are the same as those for the contaminated soils at the
formerly licensed Linde property, namely the criteria contained in Option 1 of
NRC's October 23, 1981 Branch Technical Position on Onsite Storage or Disposal
of Thorium or Uranium Wastes from Past Operations (BTP).
This BTP has previously been
applied by NRC at many other formerly used and SDMP sites; it can be found on
the FACTS website and is incorporated here by reference. Under Option 1 for
residential use purposes, soils containing greater than 10 pCi/g total uranium
must be removed; this translates into a cleanup level of 5 pCi/g for each
member of the U-238 decay chain, i.e. U-238, U-234, Th-230, and Ra-226. The 5
pCi/g Ra-226 cleanup level is the same as EPA's surface radium criterion
contained in the 40 CFR 192 regulations. A
summary of all applicable cleanup criteria for the Tonawanda Site properties is
located on the FACTS website at http://factsofwny.org/overview.htm
and is incorporated here by reference.
7) DOE's 1993 (six million dollar) RI/FS-EIS for the Tonawanda
Site determined that 15,200 cubic yards of MED/AEC contaminated soils at the
Tonawanda Landfill required removal. This volume -- reported to contain 1.3
Curies Ra-226, 1 Ci Th-230, and 2.3 Ci U-238 -- was calculated using a weak DOE
site-specific cleanup criterion for U-238 of 60 pCi per gram of soil, and the
EPA's 40 CFR 192 5/15 pCi/g surface/subsurface radium criteria. During the
comment period on this review package, DOE was asked how much larger the
removed soil volumes would be using the BTP Option 1 criteria, or the even more
stringent State TAGM-4003 which calls for cleanup of radioactive contamination
in soils to an exposure level no greater than 10 millirems per year above the
natural background exposure level of approximately 100 millirems per year. DOE
never responded to this request.
8) After Army Corps has concluded its activities, the DOE, as
successor agency to MED/AEC, remains legally liable for MED/AEC materials
remaining at the Tonawanda Site properties in excess of the more stringent NRC
and NYS cleanup guidelines. Decades ago a responsible NRC wisely adopted a
prohibition on the use of dilution to achieve site release standards prior to
the termination of license (decommissioning). In September 2006, a criminally
irresponsible Bush NRC revised the regulations (NUREG-1757,
Vol. 1 Rev. 2, page 160) that implement its License Termination Rule to
specifically allow such onsite dilution. The Army Corps has publicly stated
(correctly) that the LTR is not applicable to FUSRAP sites. That said, the lack
of any expressed concern by DOE over USACE's extremely weak soil removal
criteria for the Linde and Ashland properties is undoubtedly because DOE has
every confidence in Army Corps' proficiency at dilution, i.e. soil mixing using
heavy earth moving equipment. Army Corps conveniently won't say how many
milliCuries of the MED/AEC radioactivity are being removed and how many are
being left onsite at the Linde and Ashland properties. But what does DOE think
about this "no action" plan, wherein there will be no possibility for
intentional onsite dilution? Answer: since 1997 when Congress first transferred
FUSRAP to USACE, the Department of Energy has simply mirrored Congress's
irresponsibility on this issue.
Sincerely,
James Rauch
Secretary