0001
1 NEW YORK STATE
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
2
Proposed Amendment
3 to
Title 6, Official Compilation of Codes, Rules
4 and Regulations of the State of New York, Part 380
5 Public Hearing
_____________________________________________________
6
7
8 DATE: January 9, 2001
9 TIME: 1:02 p.m. to 3:51 p.m.
10 LOCATION: Holiday Inn
1881 Niagara Falls Boulevard
11 Buffalo, New York
12 BEFORE: Michael R. Podd
New York State
13 Department of Environmental
Conservation
14 Environmental Quality and
Remediation Programs
15 270 Michigan Avenue
Buffalo, NY 14203-2999
16 Telephone: (716) 851-7220
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25
0002
1 APPEARANCE:
2 FOR THE NEW YORK STATE DEPARTMENT OF
ENVIRONMENTAL CONSERVATION:
3
BARBARA YOUNGBERG
4 Bureau of Radiation and Hazardous Site
Management, Division of Solid and
5 Hazardous Materials
New York State Department of
6 Environmental Conservation
50 Wolf Road
7 Albany, New York 12233-7225
8 ALSO PRESENT:
James Rauch, FACTS, Amherst, NY
9
David Dooley, MJW Corp.,
10 Williamsville, NY
11 Dennis Conroy, Praxair, Tonawanda, NY
12 Louis Ricciuti, Citizens Campaign
Against Nuclear Exposure,
13 Niagara Falls, NY
14
I_N_D_E_X___O_F___P_R_O_C_E_E_D_I_N_G_S
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
15
Statement by Barbara Youngberg ................. 5
16 Statement by James Rauch ....................... 9
Statement by David Dooley ...................... 21
17 Statement by Dennis Conroy ..................... 26
Statement by Louis Ricciuti .................... 27
18 Statement by James Rauch ....................... 29
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25
0003
1 (The hearing commenced at 1:02
2 p.m.)
3 THE HEARING OFFICER: At this time
4 I would like to formally convene this hearing to
5 receive comments on Proposed Amendment to Title 6,
6 Official Compilation of Codes, Rules and Regulations
7 of the State of New York, Part 380. The purpose of
8 the amendment is to regulate the disposal of certain
9 radioactive wastes produced during the extraction of
10 uranium and thorium from ores. The amendment would
11 require that such wastes be disposed of as
12 radioactive wastes. This hearing is being held to
13 receive comments only and will not include a
14 discussion period.
15 My name is Michael Podd, and I'm
16 acting as -- for the Commissioner John Cahill and as
17 his representative at this hearing. I will be
18 serving today as the Department's hearing officer for
19 this public hearing.
20 A notice announcing the proposed
21 amendment was published in the New York State
22 Register on November 15th, 2000. In addition, the
23 notice of this hearing was published in the
24 Environmental Notice Bulletin, The Buffalo News, the
25 Albany Times Union, and I understand also one other
0004
1 publication, and it escapes me right now what it was.
2 If anyone here has not signed the
3 attendance sheet, please do, because that's going to
4 establish the order for any comments or speakers.
5 We do have a legal stenographer
6 here present to provide an official record of today's
7 proceedings.
8 You may submit written comments
9 today or until January 17th, 2001. We do have the
10 address up here on a couple of sheets of paper if you
11 would like to know exactly where to send it to. But
12 just to let you know, written comments submitted
13 today or after today should be sent to Barb
14 Youngberg, that's Y-O-U-N-G-B-E-R-G, New York State
15 Department of Environmental Conservation, Division of
16 Solid and Hazardous Materials, 50 Wolf Road, W-O-L-F,
17 Road, Albany, New York 12233-7225.
18 I would like to welcome you to this
19 public hearing. I would now like to introduce Barb
20 Youngberg, Chief, Radiation Section, Division of
21 Hazardous and Solid Materials. To start the hearing,
22 I'll ask Barb to briefly describe the proposed
23 changes. When she's finished, I will then call on
24 those who have indicated that they would like to make
25 an oral statement. People will be taken in the order
0005
1 in which they signed in. Anyone with time restraints
2 and has a real problem? No? Okay. Good.
3 Please be aware that all comments
4 that to pertained to the revisions only; okay?
5 So, without further ado, Barb.
6 MS. YOUNGBERG: My name is Barbara
7 Youngberg, I'm an environmental radiation specialist
8 and chief of the Radiation Section in the Bureau of
9 Radiation and Hazardous Site Management, Division of
10 Solid and Hazardous Materials of the New York State
11 Environmental Conservation Department. I will
12 briefly describe the proposed rule.
13 The Department of Environmental
14 Conservation regulates the disposal of radioactive
15 materials under our Rules and Regulations for
16 Prevention and Control of Environmental Pollution by
17 Radioactive Materials, 6 NYCRR Part 380. We are now
18 proposing to amend Part 380 to apply to certain
19 radioactive wastes that were produced before November
20 8th, 1978. These are the radioactive wastes produced
21 when uranium or thorium is extracted or refined from
22 ores.
23 When uranium and thorium are
24 extracted and concentrated from ores, significant
25 amounts of radioactive thorium and radium are
0006
1 concentrated in the mill tailings and other wastes.
2 The wastes from this process can also contain
3 uranium.
4 There are several sites in New York
5 and other states where uranium and thorium were
6 refined and concentrated for the federal government
7 during and shortly after World War II. These sites
8 became contaminated with the resulting radioactive
9 wastes. In 1974, the U.S. Department of Energy
10 established the Formerly Utilized Sites Remedial
11 Action Program, or FUSRAP, to investigate those sites
12 and remediate them, if needed. Under the Federal
13 Atomic Energy Act, the Department of Energy had
14 exclusive control over the radioactive material at
15 the FUSRAP sites it remediated. In October 1997, the
16 FUSRAP program was transferred from the Department of
17 Energy to the U.S. Army Corps of Engineers. This
18 removed the radioactive material from the Department
19 of Energy's control and authority under the Federal
20 Atomic Energy Act.
21 At operating uranium mills, these
22 wastes are regulated by the U.S. Nuclear Regulatory
23 Commission, under the Uranium Mill Tailings Radiation
24 Control Act, which went into effect on November 8th,
25 1978. However, on April 5th, 1999, the NRC issued a
0007
1 Director's Decision, that's 64 FR 16504, stating that
2 the NRC has no regulatory authority over uranium and
3 thorium wastes produced prior to the adoption of the
4 Uranium Mill Tailings Radiation Control Act in 1978.
5 The uranium and thorium mill tailings at FUSRAP sites
6 in New York State were produced prior to November 8,
7 1978; therefore, this decision meant that the NRC
8 would not regulate these wastes in New York State.
9 Because the federal government no
10 longer regulates these radioactive wastes, the State
11 needs to control their disposal to protect the
12 environment and the public health and safety --
13 health and welfare. Landfills for municipal solid
14 waste and construction and demolition debris,
15 permitted under 6 NYCRR Part 360, and hazardous waste
16 landfills, permitted under 6 NYCRR Part 373, are not
17 designed to isolate radioactive materials from the
18 environment. Without this amendment, landfills could
19 accept radioactive material in concentrations
20 hundreds of times normal background levels. Over
21 time, the uncontrolled disposal of radioactive wastes
22 can expose people to radiation doses exceeding
23 radiation protection limits. This practice could
24 also increase the costs of operating, closing and
25 monitoring landfills.
0008
1 This amendment will enable the
2 Department of Environmental Conservation to control
3 the disposal of this radioactive waste in New York
4 State. For the most part, the effect of the
5 amendment is to prohibit the disposal of these wastes
6 in landfills. Part 380 requires that regulated
7 radioactive material be disposed of at a facility
8 authorized to receive radioactive waste. Such
9 disposal facilities are located in other states.
10 It is possible that some uranium or
11 thorium extraction wastes containing extremely low
12 concentrations of radioactive material could be
13 safely managed at a landfill. In that case, the
14 Department may issue a variance under Section 380-3.5
15 to allow such disposal. One condition of granting a
16 variance under section 380-3.5 is that the applicant
17 demonstrates there will be no significant adverse
18 impacts to the public health and safety or the
19 environment.
20 This proposed amendment would add
21 to section 380-1.2 a statement that Part 380 applies
22 to the disposal of these uranium and thorium
23 extraction wastes where such wastes are not regulated
24 by the U.S. Nuclear Regulatory Commission. Minor
25 wording changes are also proposed to make the
0009
1 regulations consistent with this change in scope.
2 This amendment was adopted on an
3 emergency basis on July 31st, 2000. This was renewed
4 on October 27th, 2000 and on December 22nd, 2000. If
5 adopted, the proposed amendment will replace the
6 emergency rules.
7 I will be available after the close
8 of this hearing session to answer any questions.
9 Thank you.
10 THE HEARING OFFICER: Okay. We
11 will now open -- formally open the floor for
12 comments. The first person to address us is James
13 Rauch.
14 And Mr. Rauch, also if you have any
15 written comments you would like included in the
16 record, please just submit them to the stenographer;
17 okay?
18 Mr. Rauch -- no, please -- just
19 from there, or would you like to have -- here?
20 That's fine, too. It's okay.
21 (Off-the-record discussion)
22 MR. RAUCH: My name is James Rauch,
23 it's R-A-U-C-H. I'm a pharmacist who has had a
24 longstanding interest in public health issues. I've
25 been following nuclear waste regulation for
0010
1 approximately twenty years.
2 I'm involved with the West Valley
3 Coalition and a group that was formed specifically
4 around the FUSRAP materials in Tonawanda, New York, a
5 group called FACTS, For A Clean Tonawanda Site,
6 Incorporated. This is a 501(c)3
7 non-profit. FACTS is a recognized stakeholder in the
8 original Department of Energy environmental review
9 process for remediation of the Tonawanda, New York
10 FUSRAP site. We're also a recognized stakeholder by
11 the U.S. Army Corps of Engineers.
12 We have filed a couple of lawsuits,
13 FOIA lawsuits, to obtain information that was denied
14 by the federal government. We've also FOIL'd the
15 State of New York with mixed results. The second
16 federal lawsuit involved an attempt to stop Army
17 Corps from proceeding with an inadequate cleanup of
18 the Tonawanda site properties. The lawsuit was
19 dismissed on the grounds that a public citizen group
20 cannot sue to nullify a CERCLA, i.e., Superfund ROD,
21 until the cleanup is completed, even though that
22 CERCLA ROD does not satisfy appropriate and relevant
23 policy guidelines and regulations for the management
24 of radioactive wastes.
25 The court -- the case after a
0011
1 couple of years was finally dismissed this past
2 summer by Judge Elfvin in Buffalo. In part, it had
3 been earlier dismissed and transferred to the appeals
4 court in New York City. Judge Elfvin said that the
5 case involved was in the wrong venue, that -- a
6 matter of NRC jurisdiction should have been brought
7 in New York City appeals court because NRC hadn't
8 rendered a decision already on this matter, which is,
9 in fact, not completely true. NRC until this recent
10 director's decision had not publicly issued a formal policy.
11 We had FOIL'd, as had DEC requested,
12 information from NRC indicating in their records when
13 they established this policy of not regulating so-called
14 pre-1978 FUSRAP 11.e(2) byproduct material. NRC's response
15 was absolutely unsatisfactory. I have followed nuclear
16 regulatory matters for a number of years; this is the
17 most outrageous case of federal dereliction of its
18 responsibility to protect the public health and
19 welfare that I've seen, insofar as managing
20 radioactive wastes.
21 I have quite a long statement to
22 make here. I notice that Mr. Podd indicated that he
23 would like comments kept just to the proposed
24 amendment to Part 380. However, this is a matter
25 that is very complicated. It dates back fifty
0012
1 years and the trail of responsibility has been
2 intentionally clouded by government agencies. We
3 had, as I said, to go to court to get information
4 specifically germane to the regulation and management
5 of these materials, that should have been provided
6 in the open public review process.
7 THE HEARING OFFICER: Would you
8 like to possibly submit a written longer statement to
9 be included in the record and at this time only
10 comment specifically on the changes in the
11 regulations?
12 MR. RAUCH: No, I would prefer to
13 make as long a statement as I'm allowed to make until
14 I cover all the points I believe are germane to this
15 rule-making. I don't know how many other parties are
16 here, you know, to make comments. I don't know what
17 the allocated time is. However, I would like to
18 establish on the record a number of facts that are
19 not in the record.
20 THE HEARING OFFICER: I'll tell you
21 what? Why don't we give you -- although we did not
22 set a time, let's make it fifteen minutes at this
23 time. After everyone else has spoken who would like
24 to, we will again give the floor back to you. Is
25 that acceptable?
0013
1 MR. RAUCH: That's acceptable. Is
2 there a cut-off on this hearing?
3 THE HEARING OFFICER: My
4 understanding is four o'clock.
5 MR. RAUCH: Four o'clock. Okay.
6 That's fine.
7 THE HEARING OFFICER: So, you've
8 got, like I say, about fifteen minutes, until
9 one-thirty.
10 MR. RAUCH: Let me just briefly
11 outline what our organization feels the State should
12 do at this point. We believe the UMTRCA
13 law and the legislative history developed in the
14 enactment of UMTRCA supports the idea that NRC was
15 directed by Congress to regulate pre-1978 FUSRAP
16 material.
17 It's interesting to note
18 that NRC was, in fact, created in 1974 out of
19 the old AEC for the specific purpose of reforming the
20 AEC insofar as protecting public health and
21 welfare. AEC had been making bombs and was
22 focused on making bombs to the exclusion of
23 protecting the health and safety of the
24 public from radioactive materials generated in the
25 course of this weapons production. That's one of the
0014
1 fundamental reasons that NRC was formed. So
2 it's ironic in the extreme to see NRC abdicating
3 its responsibility here based on self-serving, slanted
4 reading of the legislative history of UMTRCA. This
5 director's decision that Ms. Youngberg referred to,
6 that NRC just released, it is a disgraceful
7 document -- an attempt to hide years and years --
8 cover up years and years of NRC irresponsibility on
9 this material.
10 The State, however, is not immune
11 itself from criticism in the management of
12 this material. But what we think the State should do
13 now -- and this is what we asked the state to do
14 three years ago -- over three years ago, before we
15 went to federal court to try and stop a seriously
16 flawed Army Corps cleanup at Tonawanda -- is enter
17 federal court to sue the federal government to
18 regulate this material, which we believe the NRC has
19 full authority to do and the State does not.
20 Let me just say that is our main
21 point. I appreciate that the DEC is trying, through
22 its permitting process for radioactive material
23 discharge to the environment, to prevent improper
24 disposal of this material. I appreciate that fully.
25 However, that's not the way to address this issue.
0015
1 The way to address this issue -- because
2 these materials are very long-lived, virtually
3 forever radioactive -- they have to be managed
4 virtually forever, with the idea up front that
5 these are to be kept out of the environment.
6 Otherwise, you'll have health effects.
7 The approach of DOE and Army Corps
8 has been to dilute them by mismanagement over the
9 years, and the current approach of Army Corps is to
10 further dilute them until, in fact, they're below
11 current regulatory standards -- their concentration.
12 So in fact, what you have is a large site with all of
13 this radioactive activity blended down over the whole
14 site. What that does is -- it doesn't do anything
15 other than it disperses the radioactivity over a wider
16 area and, therefore, expose more people potentially
17 to a lower dose. But this dose will accumulate in
18 populations that live on this contaminated property
19 virtually forever. For five hundred thousand, a
20 million years, it will continue to accumulate and
21 there will be health effects generated from this.
22 That's why these materials must be
23 regulated. That's why they were, and they are, subject
24 to licensing. The facilities that are -- that NRC
25 has licensed for the disposal and management of these
0016
1 materials are defined in 10 CFR Part 40, Appendix A.
2 The performance objectives of those facilities are to
3 ensure maximum isolation without any active
4 maintenance of the facility for as long as the
5 materials are hazardous. That is, virtually forever.
6 That's almost impossible to do, given climate change,
7 et cetera.
8 But what it means is that these
9 materials should be managed at a site that is
10 not subject to the physical problems that Western New
11 York has of heavy precipitation, freeze and thaw, et
12 cetera, et cetera -- a site such as the arid desert
13 of the west - the Nevada Test Site, the Envirocare
14 facility in Utah - where these materials can be put in
15 the ground with some assurance for at least the next
16 several thousand years, until the climate changes, that
17 they will remain isolated without contaminating
18 a larger volume of environmental media, that they
19 will remain intact there and won't be mobilized by
20 water.
21 Where the federal -- where the
22 Manhattan Engineers and the AEC deposited the
23 original refining wastes from Linde -- the Haist
24 property, now known as Ashland 1 -- it's one of the
25 poorest possible disposal sites, right at the head
0017
1 waters of Rattlesnake Creek, a local tributary that
2 flows into the Niagara River. These materials
3 were mobilized down that creek delta over the
4 course of many, many years, decades actually, so that
5 Ashland 2 and other properties were contaminated.
6 Our DOE, in any case, wanted to
7 develop a tumulus there and scrape up all they could
8 gather above their cleanup criteria, which were sixty
9 picoCuries per gram [60 pCi/g U]. NRC, by the way, in 1980,
10 established a cleanup level for these materials, for
11 unrestricted site use, of ten picoCuries per
12 gram of uranium. And DOE said sixty is enough. Army
13 Corps says six hundred surface, three thousand
14 subsurface. And that's what's in their ROD and that's
15 what we challenged. As I say, DOE wanted to
16 establish a tumulus in Tonawanda, scrape up as much
17 as they could above sixty, put it in the tumulus, cap
18 it there, leave it there, and manage it there.
19 Well, you know, in retrospect, that
20 would have been a better option than what we're
21 getting now. We fought that -- our organization
22 fought that because we thought the material should be
23 removed from this area to suitable long-term storage.
24 This is interim storage. Anything in Tonawanda
25 should be viewed only as interim [temporary] storage. But
0018
1 at least had we supported the DOE effort, we would now
2 perhaps have interim storage of above sixty picoCurie
3 material in a cell in Tonawanda that would have to be
4 actively maintained to keep it from coming apart and
5 releasing material into the environment again.
6 That's the thumbnail, basically, of
7 this material. This material, although it's not
8 going to kill you just by standing next to it, like
9 standing next to spent fuel or high level waste, it's
10 the long-term cumulative dosage it gives you - that's its
11 impact, the impact of its radiation. There's no
12 threshold to radioactive effects, it just gets to be
13 how well you can measure health effects at
14 very low doses -- you know, how large a population
15 has to be exposed, how carefully you collect your
16 statistics, how good your epidemiology is. But the
17 fact is that the activity that is left behind here in
18 a heavily populated area, you know, will expose these
19 people -- whoever lives in this area -- forever,
20 virtually, to low-level exposure and there will be
21 health effects. That's why it's incumbent on DEC
22 -- and I know that they're trying here -- but
23 what really needs to happen here is federal action.
24 This is material that has a federal
25 responsibility -- by NRC.
0019
1 So, in 1962, New York State was
2 given authority by NRC to regulate most radioactive
3 materials. That means that NRC trusted New York
4 State to regulate radioactive materials, implement
5 their own regulations at the state level, promulgate
6 them into law and, in fact, carry out NRC's
7 job in the state of New York. Okay. That authority
8 covered "source material".
9 This material that we have here
10 is -- was "source material". And the original
11 definition of "source material" -- when the Atomic
12 Energy Act of 1946 was passed by Congress subsequent
13 to the Second War Powers Act -- included this material.
14 What Linde did was originally
15 refine uranium for the Manhattan Project, the
16 Hiroshima bomb. We contributed material to the
17 Hiroshima bomb and the first uranium bombs. When I
18 say "we," the Linde facility. This was done under
19 secret Manhattan Engineer District contracts
20 with the Linde Air Products Division of Union
21 Carbide.
22 Upon termination of the War
23 Powers Act on March 31st, 1947, the Atomic Energy Act
24 of 1946 became effective. Okay. At that point, the
25 Atomic Energy Commission became responsible for all
0020
1 radioactive materials, which were turned over from the
2 control of basically the Army to this newly created
3 commission, the Atomic Energy Commission. So, control
4 of these uranium materials ["source material"] was
5 first under the Army, then it was under the Atomic
6 Energy Commission. Chain of control was maintained.
7 In the Act of 1946, these
8 materials were "source material" -- by the
9 definition, which I will read, because the
10 definition at that time included processing residues.
11 Quoting -- "As used in this part" - this is 1947 -
12 "source material means any material except
13 fissionable material" - that's the enriched
14 U-235 separated out from the product, the refining
15 product - "which contains by weight one twentieth of
16 one percent or more of uranium or thorium or any
17 combination there of" -- "Raw source material means:
18 1) source material that has not been chemically
19 processed in any manner; and 2) source material in
20 the form of residues or tailings."
21 Okay. So, the materials that
22 were transferred from the Army [Manhattan Project] to the
23 AEC for management by this Act, the materials -- I've
24 just been given notice of two minutes here, so we're
25 going to play this little game and -- you know, but
0021
1 I'm assured that I will have my time to speak
2 here. ... . I probably won't -- I probably won't,
3 Mr. Podd, supply written comments, because I don't
4 believe that they will do much good with the State.
5 I'm here really to inform the public, to make a
6 public oral statement. I've spent a lot of years and
7 time on this effort. So, at this point I probably
8 won't submit written comments, but I have a lot to
9 say. If you want to cut me off, that's fine.
10 THE HEARING OFFICER: Well, you're
11 welcome to come back as soon as we make sure that
12 everybody else has a chance to make comments.
13 The next person we have on the list
14 is Dave Dooley. And Dave, also as Mr. Rauch, fifteen
15 minutes.
16 MR. DOOLEY: Much more brief. Much
17 more brief.
18 Good afternoon everyone. My name
19 is Dave Dooley, and I am the president of MJW
20 Corporation. We are a small radiological consulting
21 firm here in Western New York, and we have been a
22 consultant to CANiT for about the past eight years.
23 My biggest concern with the
24 proposed rule is what is the emergency? Usually in
25 an emergency adoption there's something that's an
0022
1 imminent threat to the public; where you have to do
2 something immediately, in other words, or the public
3 is going to suffer. The current materials have been
4 in Western New York for about fifty years now. And
5 I'm trying to understand, you know, what the proposed
6 regulation is going to do in terms of benefiting the
7 public health and safety that -- that current
8 regulations and the current cleanup that's being done
9 under CERCLA does not.
10 I believe, you know, unless I'm
11 completely unknowledgeable about the DEC, they are
12 the New York State branch of the EPA. And the EPA
13 under CERCLA has established a risk range of one to
14 the minus four to one to the minus six, that says if
15 you do particular cleanups within -- and keep the
16 cleanup within that risk range, you will then have a
17 cleanup that's considered safe once you leave the
18 site.
19 I think one of the biggest problems
20 that I see here is that the historical aspects of the
21 cleanups the DOE have tried to do, whether it's in
22 the -- in the west or other locations, they've always
23 had a number that has dealt with a scenario that is
24 pretty unrealistic in -- in most cases. When you
25 have a resident farmer that's growing his crops in
0023
1 contaminated material, he's got a well on the site,
2 you do come up with a number that's very low, at
3 about sixty picoCuries per gram uranium. Well, when
4 you get into a more realistic situation where -- in
5 Tonawanda, especially on the Praxair facility and
6 even in Ashland, you're not going to have a resident
7 farmer that has material growing crops in
8 contaminated soil; you're not going to have
9 groundwater being used, because the groundwater is
10 unusable even in its current form.
11 So, that number, then, when you run
12 the same codes that the DOE has run to determine the
13 concentration of uranium and thorium and any other
14 nuclide radium, especially that you can leave in the
15 soil, it goes up. And I think one of the knee-jerk
16 reactions that I've seen here from DEC is that, oh,
17 gee, we were comfortable with sixty pics. per gram,
18 but now that we're changing the rules on how we
19 should manage this scenario in terms of risk, we need
20 to go and clean up to get to background.
21 Well, my biggest question at this
22 point is: Who's going to pay the billions of
23 dollars - and it's going to be billions, folks - to
24 clean up any of the FUSRAP sites in Western New York
25 or in the state to get the to background levels?
0024
1 It's just not going to happen. There's not enough
2 money in the New York State budget - and, Barb, I'm
3 sure there's not enough money in yours - to clean up
4 to what you're asking for at this point.
5 And the biggest thing that I need
6 to see is what's the empirical date that the DEC has
7 to support this proposed regulation, you know, and
8 has a cost benefit analysis has been performed to
9 support this? I'm -- I'm very troubled by the fact
10 that they're trying to regulate material that, you
11 know, to date has -- has strong regulatory history in
12 terms of how it's been managed. And certainly under
13 the DOE, I think at least the people in Western New
14 York would recognize that not one truckload of soil
15 ever left Western New York under DOE auspices, and
16 now -- we've gotten a lot of material out of Western
17 New York with the Corps doing the clean up, and the
18 levels that they are cleaning to - again, I have to
19 reiterate - are in complete compliance with CERCLA
20 and they're at a risk level that the EPA maintains is
21 safe.
22 So, like I say, I'm at a loss where
23 we're trying to do more to protect human health and
24 safety than we already do now under the CERCLA
25 process. And I'll leave my comments at that.
0025
1 Thank you.
2 THE HEARING OFFICER: Now we have
3 Tom Dugan. You originally weren't sure?
4 MR. DUGAN: Well, I just had a
5 couple question. Could I --?
6 THE HEARING OFFICER: Tell you
7 what? After we're done with this little go-around,
8 if you would like to meet with Barb outside for a
9 second, that's fine with us. Okay? But, really, Mr.
10 Rauch does have the floor after we're done with this.
11 Okay? This is not really set up to be a
12 question-and-answer period, it's rather just to be
13 formal comments on the record. Okay?
14 MR. DUGAN: Okay.
15 THE HEARING OFFICER: But we'll try
16 and accommodate you with Barb on the side.
17 Okay. The only other person that
18 has not declined to comment is Craig Ryman (phonetic
19 spelling)?
20 MR. RYMAN: No, I'm -- I'm not
21 commenting, sir.
22 THE HEARING OFFICER: No? Okay.
23 Does anyone else wish to make any
24 comments at this time?
25 MR. CONROY: Yes.
0026
1 THE HEARING OFFICER: And you are,
2 sir?
3 MR. CONROY: Dennis Conroy,
4 Praxair.
5 I would simply like to reiterate
6 the comment made by Dr. Dooley. Number one, I don't
7 understand what the emergency is. They've had this
8 problem in Tonawanda for the past fifty years, since
9 World War II. And at this time, for the past five
10 years under the DOE, and I feel more effectively now
11 by the U.S. Army Corps of Engineers, progress is
12 being made.
13 Over the last twelve months
14 literally thousands of containers of contaminated
15 materials have been taken out of the state of New
16 York. To accommodate this movement, to accommodate
17 other remediation activities over the past five
18 years, Praxair, a major employer in Western New York,
19 has dismantled, has interrupted its operations to
20 facilitate this cleanup. We are getting progress
21 done right now. We feel when the Corps of Engineers
22 is complete, it will have a remediation which will
23 fully meet the standards of the DEC as they currently
24 exist. We're getting something done.
25 I see no reason to declare an
0027
1 emergency situation to incur more expense when the
2 State has no money to accommodate what they're asking
3 for. I think it's it the state -- a step backward
4 and I don't understand it. And I speak for Praxair
5 in Western New York.
6 THE HEARING OFFICER: Are there any
7 other comments?
8 Yes?
9 MR. RICCIUTI: I haven't signed up,
10 but --.
11 THE HEARING OFFICER: Yes, most
12 certainly, if you would like, sir.
13 MR. RICCIUTI: Thank you.
14 THE HEARING OFFICER: When you're
15 done commenting, then just sign in.
16 MR. RICCIUTI: Okay. Thank you.
17 My name is Louis Ricciuti and I'm
18 from Niagara Falls, New York. I'm a citizen of
19 Western New York all my life, and I have an interest
20 in the -- specific in the atomic weapons program that
21 was conducted here in Western New York over the last
22 fifty-five years or so.
23 While I'm not completely familiar
24 with the emergency setting that we're under here,
25 I -- I would like to remind the -- those in
0028
1 attendance here that we're talking about a material
2 that did not -- materials that did not exist in -- in
3 open form up until the last fifty-five years or so.
4 So, any -- any cleanup to the -- to the utmost degree
5 I feel is more than warranted. We've been haunted in
6 the area of Western New York with waste materials
7 that were left behind by this weapons production
8 program, and any -- any additional cleanup to the
9 finest degree is -- is more than necessary. We have
10 an extremely high rate of cancer in Western New York,
11 and -- and I believe that at least some studies would
12 show that -- that that could be attributable to the
13 amount of exposure. The site here in Tonawanda --
14 the site in Tonawanda is not the only one that is
15 contributing to the detriment of our environment
16 here.
17 While I'm relatively new to this --
18 this endeavor, I've only been understudy of the
19 radiation situation here in Western New York for
20 about the last five months, I will say quite openly
21 that I have dedicated every opportunity and every
22 moment that I have to this cleanup process. You will
23 be hearing a lot more and seeing a lot more of me.
24 And basically that's my comment for
25 today. I appreciate your time. And I do urge the
0029
1 DEC to take whatever actions are necessary to ensure
2 that we have a proper cleanup here in Western New
3 York.
4 Thank you.
5 THE HEARING OFFICER: Okay. There
6 being no other new speakers, I would like to turn the
7 floor back over to Mr. Rauch as promised. And if you
8 don't mind, probably about two-thirty, we'll be given
9 the stenographer and myself a break, if we're still
10 going at it.
11 Sir, may I ask you please to sneak
12 over here quietly and -- name and address, sir.
13 MR. RAUCH: As Mr. Podd mentioned,
14 I'm James Rauch, continuing my testimony.
15 I would like to just give the
16 full background to this rulemaking. These are complicated
17 issues that cover fifty years. I will address some
18 of the comments of the previous two speakers as well,
19 but I would like to just continue where I left off.
20 Basically, I did sort of an
21 historical perspective of how this material came
22 about and what its long-term hazard is
23 and why it needs to be licensed and carefully
24 regulated by future generations. I think DEC
25 appreciates that. Unfortunately, NRC as it's
0030
1 currently constituted does not appear to appreciate
2 that.
3 First of all, as I've said before,
4 there's this question of what the material is. NRC
5 basically says this material is not regulated -- they
6 don't have authority to regulate it because it was
7 generated prior to 1978 when a law called UMTRCA was
8 passed by Congress -- passed specifically to
9 regulate this material because of large public health
10 problems that developed at the tailing sites in the
11 west.
12 And UMTRCA was in two parts; a
13 Title 1 and a Title 2. And Congress was aware --
14 because of public clamorings and uproar in western
15 states -- of twenty-two sites that it actually
16 designated at the point of passage of the Act, that it
17 specified be cleaned up. At these sites -- for example,
18 tailings material had been used in construction
19 activities, houses were contaminated with material,
20 people had high, high exposures to radon, they were
21 getting lung cancers. This is what finally forced
22 the federal government, after decades of regulatory
23 failure at these sites, to take action. They
24 passed UMTRCA.
25 Title 1 was to deal with all the
0031
1 inactive sites. Twenty-two were fingered in the Act.
2 One year was given for DOE's Secretary to designate
3 all the other inactive sites that needed to be
4 cleaned up. No further sites were designated by DOE,
5 not a single one. These became the FUSRAP
6 sites that are now the nightmare that the country is
7 facing. If anybody saw the USA Today series
8 "Poisoned Places, Poisoned Workers," these are the sites.
9 And Title 2 of UMTRCA
10 assigned NRC the authority to promulgate
11 regulations, to govern the management of a new
12 category of wastes that was created by UMTRCA
13 called "11.e(2) byproduct material". Prior to
14 that, prior to UMTRCA these wastes were "source material".
15 The effective date of UMTRCA -- you know, DEC
16 should take note of the effective date of UMTRCA --
17 although it was passed November 8th, 1978, it was
18 later, by an act of Congress, delayed in implementation
19 to an effective date three years subsequent to that
20 because of the fact that the states needed time to
21 promulgate their own regulations commensurate or in
22 line with the regulations that UMTRCA ordered EPA and
23 NRC to develop. EPA developed, as a result of
24 UMTRCA, 40 CFR 192, which was a regulation governing
25 radon, basically -- radon was the main concern in these
0032
1 tailings, and developed a cleanup scheme that
2 focused on radon -- I'm sorry, it set radium cleanup
3 levels. Radium is the parent to radon, which
4 was the immediate health problem at the
5 western sites.
6 So, Title 2 gave EPA
7 the authority to set up this Title 40 CFR reg. They
8 developed that in 1983, 40 CFR 192. And NRC developed
9 Title 10 CFR Part 40, Appendix A, which
10 basically set up criteria for the development of
11 disposal facilities for these long-lived tailings.
12 Okay. And as I said before, the performance
13 objective was to, without active maintenance,
14 maintain isolation of these materials for as long as
15 possible, indefinitely into the future. It also
16 provided that the locations of these facilities be
17 federally owned, because that was a way to ensure the
18 best possible control extending into the future.
19 Only with failure of federal government, breakdown of
20 government would control be lost.
21 What we're faced with now -- and
22 this is why I urge the State to sue the federal
23 government for regulation -- for the NRC to
24 regulate this material by a license -- we're faced with a
25 situation where DEC by permit is going to try to
0033
1 keep this material out of local landfills, and in
2 suitable disposal facilities, long-term facilities --
3 going to try and keep it out by permit. But as Barb
4 indicated, there are variances available in the State's
5 regulation, in this existing set of regulations. So,
6 variances can be given. Army Corps presumably
7 could come to DEC and say, okay, look, we've done
8 a study. Basically, Part 380 is the State
9 counterpart of the federal radiation exposure protection
10 regulations, 10 CFR Part 20. They both set a hundred
11 millirem per year dose limit for a member of the
12 public being exposed to radioactive materials
13 released, in this case, by a State permittee.
14 Okay. Army Corps could come to DEC
15 and say, okay -- you know, just as Mr. Dooley said
16 here a minute ago, what's the problem? This -- you
17 know, we can keep this stuff under control so that it
18 won't have an impact. We won't give anybody in
19 Tonawanda more than a hundred millirems of dose from
20 our stuff. We can throw it in the landfill in
21 Cheektowaga, you know, where the Army Corps has
22 already put part of Building 38. You know,
23 we can put it out at Modern. I noticed there's some
24 people here from Modern Disposal. We can put it out
25 in Modern. They're probably looking for business.
0034
1 You know, why not take it? The problem
2 is this is a long-term hazard and all that's
3 going to do is raise the level of exposure to people
4 in this area. And people are going to live in this
5 area as long as the climate's good and it's got all
6 the natural resources that it has. Why do you think
7 people came here in the first place?
8 So, this permit process -- I
9 envision a scenario where DEC could be approached by
10 Army Corps, given some pseudo-science on this,
11 and DEC would be faced with a decision to accept or
12 reject it. I would like to think DEC is always
13 going to reject this and that, in fact, none of this
14 stuff is going to wind up in Western New York.
15 But the fact is, DEC has already
16 allowed it to happen. In fact, originally in 1974
17 the material on Ashland 1, the Haist property --
18 which was five feet deep in tailings, sitting on the
19 ground at the head waters of Rattlesnake Creek --
20 that Ashland transferred when they wanted to build
21 their tank farm -- they transferred a large volume of
22 that material into the Niagara landfill - now
23 Seaway, next-door - and transferred some to the other
24 side of Seaway, to Ashland property now known
25 as Ashland 2, an additional property that they owned.
0035
1 So, in other words, they spread it out over the
2 landscape. DEC did not prevent that transfer, which
3 basically contaminated a wider area, you know
4 -- a wider area of our environment. So, DEC
5 failed right there.
6 DEC has failed again in this
7 cleanup that's going on right now to keep the
8 radioactive material that's below the Army Corps
9 cleanup criteria of 600/3,000 pCi surface/subsurface
10 but well above the DOE's earlier prescription in
11 1993, in their six-million-dollar EIS, of 60
12 picoCuries, and well above the NRC 1981 Branch
13 Technical Position which said that for unrestricted
14 release 10 picoCuries per gram total uranium was the
15 cleanup level.
16 Now, this is twenty years
17 ago -- 1981 -- when NRC said this. What have we had
18 since then? All kinds of revisionism, pseudo-science
19 attempts. The problem has gotten bigger and bigger
20 and so, more and more expensive to deal with, and the
21 response has been weaker and weaker regulation.
22 Don't bite your lip, Barb; you
23 know it's true -- you know, that's the wave
24 of the future. I'm doing enough of that for
25 everybody here, I think.
0036
1 So anyway, first of all, I
2 would like to correct a couple of erroneous
3 perceptions. DOE all along told the public during the
4 environmental review process that they didn't take
5 title to the material until after they cleaned up the
6 properties. Okay. No title means they don't own it,
7 so they're not responsible for it. So, when they
8 left -- they pulled out of the Linde compound
9 in the 1950s, the early '50s, and when they transferred
10 the Haist property to GSA in 1960 and GSA sold it to
11 Ashland, they washed their hands of it.
12 The problem is -- in federal
13 district court, we obtained the contracts, finally,
14 that Praxair apparently had had all along, from its
15 parent Union Carbide, the original contractor.
16 The contract says -- the main uranium production
17 contract -- and we obtained a copy of this only by
18 court order. This is contract number W-7401-ENG-14
19 between the
20 U.S. Army Manhattan Engineer district and the Linde
21 Air Products Company. It was executed in 1942. We
22 have the record of negotiations, November-December
23 1942 for this contract. This was for the uranium
24 production -- this was the main production contract
25 for producing uranium tetrafluoride -- refining raw
0037
1 ore and producing uranium dioxide and uranium
2 tetrafluoride.
3 Page four, record of negotiations:
4 "Ownership of raw materials" -- it's a poor copy --
5 "Ownership of raw mat'ls, residues, by-products, etc" --
6 "Title to all raw materials, residues and by products
7 will remain with the U.S.A."
8 Okay. DOE lied to us for years --
9 for years. For years and years and years. You know,
10 "we cleaned up to the standards in effect at the time."
11 You know, "the standards in effect at the time" --
12 well, the standards in effect at the time were for "source
13 material". Definition of "source materials": Point zero
14 five percent [0.05%] uranium, total uranium. What they
15 left behind at the Haist property was point five four
16 percent [0.54%] uranium. Over ten times the licensable
17 concentration in these tailings were left
18 on the ground, piled five feet deep
19 over ten acres of the Haist property.
20 Ten times the licensable quantity.
21 The transfer from the Atomic Energy
22 Commission to GSA was illegal, because only the AEC
23 could hold the material without a license.
24 GSA then sold the property at auction. GSA --
25 there were a few individuals in GSA -- we were
0038
1 fortunate enough to obtain all the documents. We had
2 FOIA'd to GSA. And we didn't have to go to court
3 to get them. An individual, luckily, supplied us a box
4 of documents dealing with the transfer of the Haist
5 property. So, we have all -- we have the whole
6 deed -- we have the original deed when the federal
7 government acquired the property.
8 It was called Haist because the parties
9 involved were a family called Haist, and there were a
10 couple of other individuals that went in with the
11 Haists when they bought the property.
12 So, these documents show that there
13 was concern that the AEC hadn't cleaned up the
14 material -- that site was contaminated. There's a
15 number of these documents. Basically, top management
16 at GSA finally said okay, we'll just sort of ignore
17 that and we'll just go ahead and auction it. They
18 had in their possession -- GSA -- a 1958 survey by AEC
19 that showed point five four percent average
20 concentration of uranium in those materials. They
21 had that in their possession. But they're not
22 experts. AEC was supposedly the expert agency.
23 So, AEC clearly knew the
24 transfer was illegal, went ahead anyway and did it. At
25 GSA some people objected, you know, "but what
0039
1 about this?" They sold it. The Buffalo Evening News
2 reported in 1960 that the property was sold with no
3 radioactive contamination on it. This was part of
4 the GSA file. It was in the file, the whole thing of
5 the News story was in the file, along with
6 the ads that were placed in the process of auction --
7 both in the Buffalo Courier Express and the News.
8 The Buffalo Evening News may have been in a collaborative
9 position with AEC here, because they were involved in
10 meetings with the Chamber of Commerce to try to
11 drum up a list of potential buyers for this property.
12 Three -- three parties bid on it:
13 One bid was by an individual for a thousand dollars; one
14 was five thousand dollars; and one was Ashland Oil,
15 actually Frontier Oil, a subsidiary of Ashland Oil. They
16 bid fifty-one thousand dollars. AEC tried to get --
17 GSA tried to get more. They eventually paid
18 fifty-eight thousand dollars for ten acres, heavily
19 contaminated. They knew that it was contaminated.
20 Of the bidders, they alone knew that it was
21 contaminated. There was correspondence
22 that we obtained, letters that showed that
23 they basically tried to get a commitment from AEC,
24 from GSA that they wouldn't have to clean up the
25 property, that they wouldn't be liable for it.
0040
1 But they didn't have anything in writing.
2 They never got anything in writing that they
3 wouldn't be liable for it.
4 Our organization stewed over this
5 years and years trying to figure out who's
6 responsible here. You know, there's so much
7 corruption going on here that it's hard to tell who's
8 responsible. So, Ashland knew, but DOE told the
9 public in their Authority Review that designated the
10 site for cleanup -- told the public that Ashland didn't
11 know that it was contaminated. DOE goes through this
12 extensive process of trying to determine if they have
13 authority to clean up these FUSRAP sites. Well, in
14 this case, clearly -- you know, all they've got to do
15 is look at a contract. They own the material.
16 The bulk of it was above the Atomic Energy Act's
17 license-requiring concentrations. They left it
18 there; they're liable.
19 Why didn't Linde sue? Why didn't
20 Union Carbide sue? Why doesn't Praxair sue? Go and
21 look at Praxair's website. Lots and lots of
22 government contracts. Lots of government contracts.
23 They don't want to ruffle, you know, the DOE. The
24 DOE gives them all kinds of work.
25 It's ironic to see Mr. Conroy stand
0041
1 up here and argue that -- "don't raise the cost of
2 this thing". This regulation is just going to try and
3 keep Army Corps from improperly dumping their below
4 cleanup criteria material in Western New York landfills
5 that are unsuitable for long-term storage. That's all
6 it's doing. It's not raising Praxair's costs. It's going
7 to raise the cost to the Army Corps slightly. It's
8 in there. Read it.
9 It's going to raise the disposal
10 costs for this material slightly because it won't
11 wind up in New York State, it will have to go
12 somewhere else -- foreseeably, some other state
13 that -- that isn't going to protect itself, because
14 the feds aren't acting to protect. I guess that's what
15 Praxair wants. Send it down the road to Pennsylvania
16 or somewhere else, wherever the Army Corps can get
17 rid of it cheap. Okay. That -- that's a great
18 corporate citizen. Western New York really wants
19 that kind of corporate citizen, we really need them.
20 It's not going to raise your costs any. In fact, if
21 you were a good property owner, what you would do is
22 sue the federal government to restore your property
23 to a legitimate cleanup, which is at a ten picoCurie
24 cleanup level. That's a property that's
25 going to be heavily used forever into the future.
0042
1 This thing that Dr. Dooley says about
2 resident farmer -- well, he's pretty arrogant in my
3 opinion. Who's to say that they're never going to
4 use that property again to grow vegetables?
5 Properties are constantly recycled in areas where
6 it's good for people to live -- constantly recycled
7 and reused. I don't understand who Dr. Dooley
8 is here for. He's a consultant for CANiT; apparently,
9 he's here representing CANiT, the politicians that
10 are supporting the Army Corps' flawed cleanup.
[Later, we discovered that Dr. Dooley already had been
retained for some time by Praxair as a consultant; see
August 29, 2001 letter by DEC's Stephen Hammond.]
11 Don't want to raise -- the
12 politicians don't want to raise the cost -- the
13 short-term cost, people. Short-term cost. Nobody
14 has calculated the duration costs -- they don't want
15 to bother. You know, they say it can't be done,
16 don't calculate the long-term health effects, just
17 keep polluting -- diluting and polluting
18 the environment, you know, until you can't tell where
19 it's coming from anyway, anywhere in Western New York.
20 Somebody said, you know, this area is already
21 contaminated, the groundwater is contaminated -- Dr.
22 Dooley said that the groundwater is contaminated, so
23 nobody is going to drink it anyway. Don't bother
24 cleaning up the Curies that were injected into
25 the injection wells. Fine, upstanding corporate
0043
1 citizens. So that's enough of the tirade,
2 but there's one fact that I've covered and
3 it's a very pertinent factor.
4 DOE, the federal government, has
5 had responsibility for this material by contract.
6 And there's no question in the contract about
7 concentration, not like the "source material"
8 definition which specifies point zero five percent. The
9 contract says all residues. So, presumably
10 that means everything that went out onto the Linde
11 property, went over to the Haist property, was
12 thereafter spread into Seaway and into Ashland
13 2, went down the Two Mile Creek, down Rattlesnake
14 Creek, contaminated other properties. By contract
15 it's all the responsibility of the federal
16 government.
17 FUSRAP, the origin of FUSRAP -- what
18 is FUSRAP? Well, according to the propaganda of the
19 Department of Energy, FUSRAP is a congressionally
20 mandated program. In fact, there's no law
21 specifying the FUSRAP program. None whatsoever. We
22 FOIA'd DOE on this. We pursued it in court trying to
23 get the original documents creating FUSRAP. It turns
24 out that what FUSRAP really is, is an in-house
25 program to deal with predecessor agencies', i.e.,
0044
1 Atomic Energy Commission and Army Corps, liabilities.
2 That's what FUSRAP is. It's
3 an ad hoc program on a year-by-year basis. It's only
4 there if Congress every year appropriates money for
5 it. That's all it is. It's just a line item that
6 the Congress may appropriate money for.
7 Well, apparently DOE thought it was
8 a big enough deal that they devoted six million
9 dollars to a full environmental impact statement [for
10 Tonawanda]. They convinced earlier Congresses that it
11 was a big enough deal that they would spend six million
12 dollars to do a full RI, baseline risk assessment,
13 site survey, and they -- you know, they did that.
14 That formed the basis of the 1993 NEPA environmental
15 review. It was an EIS, which they then dropped like
16 a hot potato when the public became interested. And
17 now we have CERCLA.
18 And I already went over the problem
19 with CERCLA. The problem with CERCLA is that we
20 can't stop the deficient ROD because of a 1986 SARA
21 amendment. That SARA amendment that was
22 designed to stop companies from stopping cleanups is
23 now stopping us from stopping the federal
24 government implementing a flawed cleanup -- us,
25 the public.
0045
1 CERCLA provisions require that the
2 cleanup be in accordance with ARARs, which are
3 Applicable or Relevant and Appropriate Regulations.
4 Applicable means formulated in law -- they must
5 be met. Relevant and appropriate -- or appropriate
6 and relevant would include such things as DEC's
7 TAGM-4003 limiting exposure to ten millirems for soil
8 cleanup. It would include the NRC Branch Technical Position
9 that was never promulgated into law that I
10 referred to earlier, the 1981 NRC Branch Technical
11 Position on On-site Storage of Uranium or Thorium
12 which specified ten picoCuries for unrestricted use.
13 It would include the 10 CFR Part 40, Appendix A,
14 which specifies this material is only suitable for
15 long-term storage in a facility that requires no
16 active maintenance, maximum isolation, licensed
17 by the federal government on federally-owned land.
18 What did the Army Corps do when
19 Congress transferred the program in 1997 from
20 DOE to Army Corps for implementation? What it, in
21 fact, did was act very irresponsibly. Because DOE is
22 legally responsible for this material. That doesn't
23 change. There is no act of Congress that provides
24 Army Corps with the authority to develop radioactive
25 cleanup criteria. None. It doesn't exist. The only
0046
1 authority is through the Atomic Energy Act, and that
2 is to NRC and DOE. That's the only authority -- and
3 then to the states by agreement.
4 So, Army Corps issued a ROD. And
5 Army Corps decided in the case of Linde that based on
6 risk analysis that they performed -- highly flawed for
7 any future use scenario that I reasonably
8 anticipate for the area, and the DEC seemed to
9 believed so in making reference in its comments to
10 the fact that the Trico facility in Buffalo
11 was being recycled for use as condominiums, for
12 people to live in, you're familiar with that
13 comment -- okay, six hundred picoCuries surface soil,
14 three thousand picoCuries subsurface soil. Well,
15 licensable "source material" is one hundred and
16 seventy-two picoCuries per gram U-238 -- total uranium
17 about three forty. Okay. So, we're talking twice
18 the licensable source material concentration.
19 I made comments at an earlier
20 public hearing where I criticized DEC heavily,
21 because I said their only interest in this
22 flawed ROD was because it left them responsible to
23 license source material, which they knew we would
24 pursue. The State has authority and is required to
25 do so under law ; it has the responsibility to
0047
1 license "source material". They appreciate that; they
2 don't want to do it. You know, if they had acted
3 properly in the past, they shouldn't have to now. Had
4 NRC acted properly in the past, they shouldn't have
5 to either. But right now, as it stands, Army
6 Corps -- unless they blend this stuff all over the
7 property and dilute it down with clean material -- is
8 going to potentially leave behind, by their criteria,
9 concentrations twice the "source material" threshold.
10 "Well, just watch," they say. "We'll do the right
11 thing." Yes, well, let them put it in a ROD. No,
12 they won't do that. They won't put it in the ROD.
13 CANiT and local politicians
14 all say, "Oh, it's fine, you know. It's a waste of
15 money." That's outrageous. It's -- it's
16 unconscionable. You know, these people understand
17 what they're doing. They don't care. Because we've
18 been at these meetings and we've made these points
19 over and over and over again.
20 I read the definition of "source
21 material". In 1961, AEC changed the 10 CFR 40 reg.
22 They rewrote it and created a --
23 what's called a "generic license" for source material.
24 Prior to that, all source material above point zero five
25 percent had to be licensed. Now a single "generic license"
0048
1 was issued. I view this change as an attempt by AEC to
2 legally absolve itself of these early sites. The "generic
3 license" was for title only. It granted all persons then
4 having source material legal title to it. In other
5 words, you didn't have to apply for a specific license.
6 The material at Linde, for example, was included in this
7 generic license; they were given title to it.
8 This generic license did not give the right to possess or
9 to transfer or -- or any of the other
10 functions. They wouldn't have any right to do that:
11 to transfer or to handle or to store or to deal with it.
12 It only gave them title, nicety of law, title.
13 The fact is they couldn't do it. The fact is, the
14 contract says "shall remain with the USA."
15 I'm not a lawyer, but something is going on here
16 when they give title to this material
17 in "generic" form.
18 Perhaps -- you know, I would
19 welcome any comments that Ms. Youngberg would like to
20 make on that question -- if, in fact, DEC's legal
21 people have researched it, just what that "generic"
22 license meant -- or means to the DEC.
23 MS. YOUNGBERG: We're not a
24 licensing agency.
25 MR. RAUCH: Right. No, I realize
0049
1 that. And that's one of the comments
2 you know, I make here -- I already alluded
3 to that.
4 And our view is that this generic
5 license did nothing. AEC's award of the
6 generic license did nothing for the responsibility,
7 one, because the material there -- a lot of it was
8 above point zero five percent and it required a license
9 anyway, to possess it, to handle it -- the other functions
10 to control it. Two, because in 1978, at ERDA's suggestion
11 a NYS agency did license it. ERDA wanted the New
12 York State Department of Labor to license the material.
13 In 1978 - this was prior to UMTRCA - ERDA, which
14 was AEC's immediate successor prior to DOE -- in
15 1974, AEC was split into NRC and ERDA, which became
16 DOE.
17 THE HEARING OFFICER: Would you
18 please spell ERDA for our --?
19 MR. RAUCH: E-R-D-A, Energy
20 Research and Development Administration --
21 Authority -- Barb's shrugging. I think it's
22 Administration [actually, Authority].
23 THE HEARING OFFICER: Okay.
24 MR. RAUCH: So, knowing that UMTRCA
25 was coming down the pike, ERDA met with Linde
0050
1 officials at Linde, and the State Department of
2 Health officials, and in 1978 they
3 put on a license amendment to Linde's radioactive
4 materials license. Now, as Barb says, DEC is not in
5 the job of issuing licenses. Under the State Agreement
6 [with NRC], DEC does not have licensing authority. In
7 New York State, DOH and DOL, Department of Labor,
8 have licensing authority.
9 The purpose of a license is to
10 unequivocally control the material. You can't
11 have it without the license. You can't do this with
12 it, you can't do that -- without the license. The
13 license prescribes that you may have it, how you may
14 have it, how you may use it, what's to become of it
15 in the future, how it's to be disposed of. That's
16 what the license does. That's how radioactive
17 materials are and should be controlled. FUSRAP
18 materials have fallen through the cracks.
19 In July 1977, there was this
20 meeting -- I'm sorry, I said '78. On July 27th 1977--
21 I'm reading from an ERDA memo subsequent to the
22 meeting -- that we obtained through FOIA -- subsequent
23 to this meeting which resulted in the placement of
24 an amendment in the Linde Air Products,
25 Division of Union Carbide radioactive
0051
1 materials license with the Department of Labor.
2 July 27th: "A meeting was held at
3 the Linde plant in Tonawanda, New York to discuss the
4 finding of the ERDA radiological survey of the Linde
5 site with company and State regulatory officials.
6 Pursuant to headquarters' concurrence with our
7 recommendations as stated in my memo to you, dated
8 April 7th, 1977, the draft survey report was
9 transmitted to Linde by the attached letter, dated
10 May 10th, and to the State of New York subsequently
11 on May 18th, 1977."
12 The survey they're referring to is
13 a survey that was conducted by Oak Ridge National
14 Laboratories' expert personnel in 1976, part of this
15 so-called FUSRAP program to ascertain the extent of
16 contamination, the concentrations at these inactive,
17 formerly-used sites. Reading again from
18 the memo:
19 "Attending the meeting for the
20 State were: Dr. F.J. Bradley, R.F. Kelly of
21 the Department of Labor, which has regulatory
22 jurisdiction under agreement with U.S NRC for current
23 Linde industrial operations involving radioactive
24 materials. Attending for Linde were: J.P. Green,
25 Operations Manager; Ted Smist; Adam Malek; and L.R.
0052
1 Andrews, Industrial Hygienist
2 R.E. Allen, HQ-DOES and William T. Thornton, Oak Ridge,
3 represented ERDA. Neither the
4 State, nor the company, voiced any criticisms of the
5 report." This is a report that found concentrations
6 requiring remediation above current standards at that
7 time.
8 "We indicated" -- reading again,
9 "We indicated that the report would now be
10 finalized and printed as an official ERDA document
11 and would be available to the public upon request.
12 The State plans to make measurements of its own on
13 July 28th, 29, so as to be in a position to comment
14 on the validity of the ERDA findings if queried.
15 "Dr. Bradley indicated the State
16 preference that all contaminated areas be cleaned to
17 unrestricted levels. However, he recognized that
18 this may not be a feasible alternative at least in
19 the immediate future. The State, therefore,
20 requested that Linde submit a request for
21 modification of its existing license to cover
22 Buildings 14, 30, 37 and 38
23 and those outside areas where uranium
24 or radium concentrations in the soil exceed exempt
25 levels in State Code Rule 38."
0053
1 This is not part of the document.
2 State Code Rule 38 refers to Title 10 NYCRR
3 Part 38. It's the Industrial Hygiene Rule that the
4 State Department of Labor promulgated to regulate
5 radioactive materials, and it's the
6 functional code that was granted by the Agreement
7 with NRC to New York State in 1962. It's the
8 regulations that DOL implemented to carry out its
9 authority granted by that State Agreement in
10 1962.
11 Reading again from the document:
12 "Linde representatives, after
13 general discussion of the types of controls which
14 would be required, indicated a willingness to include
15 the areas under State license. It was indicated that
16 ERDA was developing plans to make engineering
17 assessments or remedial action alternatives at all
18 sites found to exceed current unrestricted use
19 guidelines. We could not predict the timing on
20 completion of these studies for the Linde site, but
21 estimated something on the order of two years or
22 more. Everyone appeared to agree that licensing the
23 area was the only feasible alternative in the
24 interim.
25 "Regarding public information
0054
1 aspects, it was noted that ERDA plans to issue within
2 the next few days a summary status update on the
3 overall program. Linde appeared satisfied with the
4 remarks to be included on the Linde site; i.e., that
5 the survey had been completed and the report is in
6 preparation.
7 "A tour of the contaminated areas
8 was made to acquaint State representatives with areas
9 found to have the higher radiation levels. The
10 company indicated plans for substantial modifications
11 in Building 30 in the near future, and will
12 conduct these activities subject to State radiation
13 control requirements.
14 "Results of the meeting can be
15 summarized as follows.
16 "Company actions: Linde will
17 request modification of existing State license to
18 cover areas contaminated from AEC/MED contract work.
19 "State actions: Department of
20 Labor will amend the license to control contaminated
21 areas pending final remediation action decisions.
22 "ERDA actions: ERDA will make
23 engineering assessment of feasible remedial action
24 alternatives assuming funding is approved as
25 presently anticipated."
0055
1 Attached to this memo -- it's
2 interesting to note that one of the people that
3 this was copied to was William H. Travis, [ERDA/later DOE]
4 Oak Ridge, who subsequently became a main director of
5 operations at NRC. Just a little aside for people
6 that know about these things.
7 Attached -- well, in view of the
8 time, I won't get into any more detail on that. But
9 this document clearly indicates that this was not a
10 make-believe license as DOL told us in 1996
11 when we asked the State what, in fact, license there
12 was on this material -- if, in fact, there was a
13 license and what it provided for.
14 I wrote initially to Dr. Karim
15 Rimawi at Department of Health [DOH], anticipating that
16 there might be a health department license because
17 they're the other agency regulating this material,
18 but it was under the business side of regulation,
19 so it was DOL.
20 Pardon me while I get the
21 proper document here. Dr. Rimawi referred my
22 information request to Rita Aldrich at DOL, who's
23 their radiation officer, and she responded - to
24 paraphrase her response - that, yes, in fact there
25 was a license amendment covering the material in
0056
1 question, but that it was just to keep track of it;
2 that New York State did not have jurisdiction over
3 the material, and so the license had no force other
4 than as a recordkeeping device to keep track of the
5 material. I questioned this and thought, gee, you
6 know -- I mean, licenses are licenses. They're
7 either a license or they aren't a license.
8 This is what we pieced
9 together as to what actually happened:
10 ERDA was interested in getting a
11 license on a property that was actively being used -- as
12 a means to exclude it, the Linde property, from inclusion
13 in the Title 1 designations for cleanup. And if you read
14 the documents produced at the time, the DOE's
15 approach was that as long as they could keep a lid on
16 it, they wouldn't have to do any immediate
17 remediation of these liabilities that their
18 predecessor agencies had incurred. So, the effect of
19 the license was to not list the Linde property,
20 not designate it in Title 1 for cleanup; and the
21 Secretary of Energy wouldn't have to designate it.
22 It was under adequate control with a New York State
23 license.
24 UMTRCA was passed in '78,
25 following this meeting in '77. As I said,
0057
1 UMTRCA didn't become effective until three years
2 later, because the states were given time to
3 formulate their own regulations. New York State
4 chose not to formulate its own regulations so
5 that it could, in fact, regulate 11.e(2) byproduct
6 material, this new category that UMTRCA created.
7 That was a failure, in my view and in retrospect.
8 The rationale that DEC gives now is that there were
9 no operating refineries in New York state, so it
10 didn't make sense for them to develop regulations.
11 However, that neglects the fact that there
12 were these huge volumes of 11.e(2) material that
13 had just been created [by UMTRCA], 11.e(2) material that
14 needed to be dealt with in New York state.
15 So, New York State did not
16 formulate its own regulations, and promulgate them; and
17 therefore, [we assumed, much later] they didn't have the
18 authority to regulate. It seemed the authority to regulate
19 remained with NRC -- to regulate 11.e(2). New York State
20 had the authority to regulate "source material" all along.
21 It did not regulate "source material". It was
22 aware that there were licensable source materials on
23 these properties; but it did not require a license.
24 Ashland -- it was aware of the Ashland contamination --
25 did not require a license of Ashland, at any
0058
1 time. "Source material" -- it didn't require a license.
2 So, the State shares a lot of responsibility here
3 for regulatory failure of this material.
4 On March 3rd, I wrote to then
5 Commissioner of the New York State Department of
6 Labor, John Sweeney, and -- well, let me back up a
7 little bit.
8 On July 11th, 1996, the
9 Department of Labor -- this was after FACTS
10 had sought information about the license -- the
11 Department of Labor deleted the license amendment
12 covering 11.e(2) material. Without any explanation,
13 they illegally deleted the amendment. I say
14 illegally, because Industrial Code Rule 38 requires
15 that licensed material -- that facilities containing
16 licensed material must be decontaminated to the
17 provisions of the rule before that license is
18 terminated. The Industrial Code Rule contained more
19 stringent cleanup criteria than the DOE's cleanup
20 criteria that DOE was anticipating to implement at
21 Tonawanda. DOE was in that time --
22 at that time in the process of conducting interim
23 cleanup actions. We criticized these actions as not
24 meeting the State Part 38 decontamination
25 criteria for building surfaces.
0059
1 So, basically what happened was by
2 the time we found out that DOL had deleted the
3 license amendment covering these materials - it
4 illegally deleted it - the statute of limitations was
5 up. A hundred and twenty days was up for us to take
6 legal action -- for us, representing the public
7 interest, to take legal action. I wrote this letter
8 on March 3rd, 1997, to Commission Sweeney. I'll just
9 read it -- parts of it quickly. [Click for full text.]
10 "This letter is to inform you of
11 mistakes which we believe the New York State
12 Department of Labor has made in its regulation of
13 radioactive materials licensee Linde/Praxair,
14 Tonawanda, New York.
15 "The Linde/Praxair property was
16 designated for decontamination by the U.S. Department
17 of Energy as a result of a radiological survey
18 performed by Oak Ridge National Laboratory late in
19 1976. This survey summary section (enclosed) found
20 uranium contamination in quantities well in excess of
21 both the license-exempt amounts and the release
22 limits for unrestricted use.
23 "Specifically" - quoting from the
24 survey document, "'radioactive contaminants on the
25 indoor and outdoor surfaces in the area of former
0060
1 uranium operations include U-238 and Ra-226.
2 Concentrations of U-238 and soil samples were as high
3 as 12,000 pCi/g'" -- that's
4 three point six percent uranium [3.6% U]. That basically
5 is material that's refinable -- a good ore concentration --
6 as source material to produce uranium -- "'and
7 radium-226 concentrations up to 813 pCi/g
8 were measured." The EPA
9 established in 1983 a cleanup criteria for this
10 material at these western sites of five picoCuries
11 per gram [5 pCi/g].
12 "'Alpha contamination levels
13 exceeded the NRC'" -- I'm reading again from the
14 survey. "'Alpha contamination levels exceeded the
15 NRC, U.S. Nuclear Regulatory Commission, limits for
16 surfaces contaminated with Ra-226 in several
17 areas in each of Buildings 14, 30, and 38,
18 and in small, isolated areas of
19 building 31. Transferable beta contamination
20 exceeded the NRC limit of one thousand dpm per one
21 hundred square centimeters at some locations in
22 Building 30. Beta-gamma dose rates exceeded the
23 NRC limits in several areas in each of Buildings
24 14, 30, and 38, and one large area on
25 a wall in Building 37.'"
0061
1 That's the end of the quote from
2 the survey. Back to my letter.
3 "At that time, this uranium
4 refinery contamination was defined as 'source
5 materials.' Such materials, containing 0.05
6 percent or more by weight of uranium (170 pCi
7 or more of U-238 per gram) [or 340 pCi per gram
8 total uranium], thorium, or any combination
9 thereof, required a license to possess, transfer or
10 deliver. The NRC surface limits referred to are the
11 federal limits on residual radioactive contamination
12 that must be met before a radioactive materials
13 license may be terminated or property subject to a
14 license released for unrestricted use."
15 You should note that the Linde
16 property -- these buildings were being used --
17 actively used -- there's debate now over how much
18 control there was by the State DOL. There was some
19 signage, apparently, according to our conversations
20 with workers at the time, but apparently the control
21 wasn't very good. Workers were sent into sumps in
22 these buildings that were heavily contaminated with
23 refinery operation sediments -- some of
24 the highest contamination -- these people were sent in
25 to do maintenance work. So, the control - according
0062
1 to the union involved and some of the survivors of
2 that union - was very poor.
3 Back to the letter.
4 "Over twenty years ago" -- sorry.
5 "The authors of this report recommended cleanup to
6 the fifty-fold more stringent alpha contamination
7 level limits for Ra-226 because in many of the
8 samples with elevated activities, the activity of the
9 radium-226 approximated that of the U-238. Over
10 twenty years ago, these experts regarded these
11 buildings as 'radium site'."
12 Okay, that's quite understandable,
13 considering that the refinery operations at Linde, at
14 the so-called secret "Ceramics Plant", involved
15 pitchblende ores from the Belgian Congo, the highest
16 purity, the highest concentration uranium ores
17 available at that time. These were strategic war
18 materials that were sequestered in New York City by
19 the federal government in the early days of the
20 war, to prevent them falling into the hands of the
21 enemy. So, these -- so-called K-65 materials --
22 you know, these were ores from Katanga province of
23 Belgian Congo that had very high concentrations of
24 uranium, and subsequently -- accordingly, radium as
25 well. So, when the refining was done, huge amounts
0063
1 of radium were left contaminating the sites.
2 Back to the letter.
3 "On June 18th, we wrote to Dr.
4 Karim Rimawi of the New York State Department of
5 Health expressing concern that the building
6 decontamination 'interim actions' being performed by
7 DOE at the Linde/Praxair property, part of DOE's
8 Tonawanda, New York FUSRAP Site, did not meet Health
9 Department cleanup regulations. Our letter was
10 referred to health" -- "NYSDOL's Principal
11 Radiophysicist, Ms. Rita Aldrich, who replied on July
12 11, 1996 that Praxair does have a NYSDOL radioactive
13 materials license covering the DOE contamination, but
14 that 'legally, New York State lacks jurisdiction over
15 the contamination,' and so 'our regulatory limits for
16 residual contamination would not apply.'
17 "Information recently provided to
18 us by DOL in response to our December 6, 1996 FOIL
19 request (your File No. 96-0695):
20 "1) seems to contradict this.
21 Following the ORNL survey" -- and I'm making
22 reference in the -- the ERDA memo by Mr. Thorton that
23 I already read into the record, so I won't go into
24 that. I will just mention the actual license number.
25 The actual amendment that was placed as a result of
0064
1 that meeting in 1977, between Dr. Bradley, DOH --
2 State DOH, Linde personnel and ERDA personnel -- the
3 amendment was No. 4, issued on June 9th,
4 1978, to NYSDOL License No. 1983-0143.
5 So, there was an
6 existing license for possession of radioactive
7 materials that Praxair used in their industrial
8 operations. And amendment number four, issued June
9 9th, 1978, was to cover the uranium contamination at
10 the property, to control it.
11 I don't know at that point
12 whether Dr. Bradley or the State was
13 considering UMTRCA and whether they would, you know,
14 develop regulations to regulate the material or not.
15 The fact is, the license was issued.
16 THE HEARING OFFICER: Can we go off
17 the record?
18 We're going to take a
19 fifteen-minute break now. We will resume the hearing
20 again at two forty-five.
21 (A recess was taken from 2:30 to
22 2:46 p.m.)
23 THE HEARING OFFICER: Okay. We're
24 back on the record again for this public hearing
25 regarding change in the regulations. Thank you.
0065
1 MR. RAUCH: Thank you.
2 THE HEARING OFFICER: Continue.
3 MR. RAUCH: Thank you very much.
4 I'm back to this -- continuing with
5 the letter of March 3rd, 1997, from FACTS - authored by
6 myself - to John Sweeney, Commissioner of the New
7 York State Department of Labor. What I had just
8 finished was reading a section where Rita Aldrich
9 replied that although there was this license
10 amendment, DOL did not have jurisdiction over the
11 contamination; and so, therefore, their limits which
12 I was advocating being employed in the 'interim'
13 cleanup of these buildings would not apply.
14 I made reference to this Thornton
15 letter where it seems that pretty good control was
16 intended to be placed on this material. And then
17 also number two of the FOIL request discloses that on
18 July 11th, 1996, NYSDOL issued Praxair an amendment
19 to License No. 1983-0143
20 deleting amendment No. 4 from the
21 license.
22 "Ms. Aldrich's letter of the same
23 date" -- I'm reading now from this letter of mine on
24 FACTS letterhead. "Ms. Aldrich's letter of the same
25 date to Praxair's Mr. T.M. Dugan explains that since
0066
1 remediation has begun, it is not appropriate to
2 continue listing the building on a Department
3 license. This information causes us to make the
4 following points:
5 "One, it is clear to us that the
6 intended purpose of 10 CFR 20, 10 CFR 40, and State
7 Code Rule 38 was (and is) to protect workers and others
8 from exposure to ionizing radiation above then
9 current limits. Presumably, this was the reason that
10 U.S. ERDA called the July 27th, 1997 meeting
11 resulting in the licensing of the MED/AEC
12 contamination at the Linde property."
13 This is in brackets:
14 "However, in retrospect,
15 considering the in-the-works legislative and
16 regulatory developments -- the Uranium Mill Tailings
17 Radiation Control Act of 1978 and the UMTRCA
18 amendments, NRC's strict new (November 1980) 10 CFR
19 Part 40 and Part 40, Appendix A regs., and the role
20 given the DOE Secretary in designating Title 1
21 sites" -- so, considering the in-the-works
22 legislative and regulatory developments just
23 enumerated, "coupled with the apparent later failure
24 of New York State to retain regulatory authority over
25 these materials, why the NRC was not invited and
0067
1 involved in this regulatory matter may raise
2 questions about one or more of the parties' intent.
3 It appears that Linde's State license
4 gave DOE an excuse not to designate Tonawanda into
5 Title 1," as I said earlier.
6 "2), whether these lawful
7 regulatory purposes were actually achieved as was
8 claimed in DOE's November 1996 EE/CA (pages 6, 13, 14)
9 is doubtful. Conversations
10 with long-time plant employees suggest that the
11 requirements of Sections 38.12(4), 38.17,
12 38.27, 38.13 and 38.23 of the State Code Rule were
13 not met.
14 "3), in our March 12, 1996
15 comments on the January 1996 EE/CA" - this is a DOE
16 "interim action" EE/CA - "we protested the
17 decontamination of buildings according to DOE's
18 non-promulgated Order 5400.5 criteria. We noted that
19 State regulations were more stringent [as provided for
20 in 42 USC Section 2021.(o)]." That's the Agreement
21 State authority. "We also strenuously objected to
22 the proposed recycling or disposal at solid waste
23 landfills of so-called "clean" (again, by DOE's
24 proposed criteria) materials from the demolition of
25 Building 38. We repeated this protest in
0068
1 comment(2) of our December 20, 1996 comments on the
2 November 1996 EE/CA, where we cautioned that any final
3 disposition of any so-called "clean" material prior
4 to agreement by all stakeholders on final cleanup
5 criteria would be a violation of the prescribed
6 NEPA/CERCLA EIS public review process.
7 "We have also continuously raised
8 this issue at the public meetings held since DOE
9 first publicly issued these proposals, the last such
10 meeting being on June 18, 1996, when DOE's Ron Kirk
11 and NYSDEC's Paul Merges were present.
12 "There have been no public meetings
13 to discuss site remediation since that date. To our
14 knowledge, NYSDOL has not been in attendance at any
15 of these public meetings, nor has NYSDOL commented
16 upon either EE/CA. This, despite the existence, only
17 discovered as a result of a FOIL request, of License
18 No. 1983-0143
19 covering the radioactive materials involved in the
20 subject "interim cleanup" actions. We note that at
21 several of these public meetings last spring, our
22 inquiries concerning the State's regulatory role were
23 brushed aside by both Mr. Kirk," who is the New York
24 State sites manager for DOE's FUSRAP's sites,
25 "and a local politicians, with assurances that
0069
1 these were only "interim actions", not final
2 remediation.
3 "We believe that the October 15,
4 1962 State Agreement between AEC and New York State
5 gave New York State agencies the authority and
6 responsibility to control the MED/AEC wastes now
7 contaminating several additional Tonawanda
8 properties, initially as "source material" and
9 subsequently as "byproduct material" after the
10 enactment of UMTRCA.
11 "After November 8, 1981" --
12 actually, in fact, it may not be that exact date,
13 because of the three year delay -- if they're
14 speaking of three calendar years -- anyway, "After
15 November 8, 1981, the continuation of such State
16 authority requires that the State programs meet
17 requirements listed in 10 CFR 150.31. If the State
18 fails to meet these requirements, 10 CFR 40.2(b) clearly
19 requires NRC to regulate these materials."
20 "So, the pertinent question is:
21 Did NYSDOL establish and maintain a program to meet
22 these requirements? Ms. Aldrich firmly maintains
23 that NYSDOL does not have "jurisdiction" over these
24 MED/AEC materials, we assume because New York State
25 did not meet the new procedural
0070
1 licensing and rule-making requirements of 10 CFR 150.31(b),
2 in particular, NYS did not establish and
3 enforce standards for the protection of public
4 health, safety and the environment from hazards
5 associated with byproduct material which are
6 equivalent, to the extent practicable, or more
7 stringent than, standards in the new Appendix A of 10
8 CFR 40. This certainly appears to be the case,
9 supported by points 2 and 3 directly above and
10 the information supplied by NYSDOL if it is in
11 fact fully responsive to our December 6, 1996 FOIL
12 request."
13 Just a side comment here. At this
14 point, we didn't know, when I say "we,"
15 FACTS -- the public didn't know if, in fact, there
16 were any regulations promulgated by NYSDOL
17 to effect UMTRCA at the State level.
18 You know, I read over these old
19 letters and it's sort of ironic. Here we were
20 in the dark -- practically in the pitch dark, trying
21 to figure these things out, while we have malfeasant
22 agencies that are willing to ignore licenses
23 and break the law [illegally terminate license], run out
24 the statute of limitations and then inform the public,
25 "oh, yes, there was a license." That's just an side
0071
1 comment, but it's made to establish the fact that we
2 were really in the dark, not knowing what was,
3 in fact, the truth. I'm not an attorney, but it
4 would appear to me that the issuance of that license,
5 irrespective of whether the promulgation occurred,
6 carries with it legal ramifications. And I would say
7 now that that deletion in 1996 was an illegal act
8 if -- only insofar as the fact that the material
9 present -- the subject of that license -- was
10 present at concentrations above 0.05 percent,
11 making it source material which is
12 licensable by the State even without
13 UMTRCA-promulgated regulations.
14 Did I make that clear? Okay.
15 So, in our view that was
16 a very serious error by the State. The State
17 apparently just thought it would step aside and
18 let DOE do its thing. You know, just more poor
19 mismanagement of these already mismanaged materials.
20 Continuing from the letter:
21 "On February 19, 1997, during the
22 writing of this letter, the new DOE Site Manager" - a
23 fellow named Dave Adler - "informed us
24 that so-called "clean" debris from the demolition of
25 Building 38 had been "disposed" in a local
0072
1 solid waste landfill, apparently with DEC's approval.
2 We were appalled by this news. We believe that such
3 "disposal" is illegal. We do not know the particulars:
4 where, when, what. We are preparing a letter to DOE
5 to get confirmation and answers."
6 I made reference -- this is an
7 aside. I made reference earlier to DOE's and DEC's
8 failings, several failings by DEC in managing these
9 materials and the transfers in 1974 from Haist by
10 Ashland -- from Haist to Niagara landfill, now the Seaway
11 property, and to Ashland 2. Also, we uncovered the
12 fact that Building 37 was demolished
13 by Praxair in 1987, I believe. Is that right? '87?
14 Okay. I believe it was 1987 it was demolished. This
15 was one of the buildings that was built by the
16 feds -- by the federal government as part of the
17 contract for production of uranium and it was heavily
18 contaminated. We don't know where it went. It went
19 to some local landfill, presumably. We asked where
20 it went -- we've asked DEC where it went, and they
21 either don't know or won't tell us. So, that
22 is another example of regulatory failure and perhaps
23 illegal activity by DEC. You know, we would
24 still like to know where that material went.
25 Presumably, if it has contamination at levels that
0073
1 were found in Building 30, it's -- it's now in
2 the ground somewhere in Western New York, at a
3 potential future remediation site -- if we ever have
4 responsible government and regulation.
5 Back to the letter.
6 "And so until NRC assumes its
7 lawful regulatory responsibilities, we must consider
8 NYSDOL's deletion of Amendment No. 4 from the Praxair
9 license to be an illegal act. We say this because
10 removal of the amendment constitutes a termination of
11 the portion of the license covering the MED/AEC
12 contaminated buildings and soils. Prior to any such
13 termination, compliance with the requirements of 12
14 NYCRR Part 38.23 must be certified.
15 Therefore, in view of the
16 foregoing, we ask NYSDOL to: 1) take immediate
17 steps to reinstate license control of all those
18 MED/AEC materials at the Linde/Praxair property,
19 including those previously covered by Amendment
20 No. 4 to
21 License No. 1983-0143,
22 "2) ensure that all DOE cleanup
23 actions, including the "interim actions" at the
24 Linde/Praxair property, conform to the requirements
25 of 12 NYCRR Part 38, and
0074
1 "3) obtain assurance from
2 DOE that it will not proceed with any further final
3 disposition of so-called "clean" material resulting
4 from ongoing DOE "interim actions" at the Linde/Praxair
5 property until after final cleanup criteria are
6 agreed upon."
7 At this point -- this is 1997. At
8 this point, DOE had not issued a final decision for
9 the Tonawanda Site. Instead it had -- it was
10 conducting "interim actions" -- decontamination
11 attempts at the Linde property. We were
12 hoping that we would get a favorable record of decision
13 [cleanup ROD] from DOE. Before that happened --
14 this letter, by the way, is finished, so that's the
15 end of the letter. It just closes that "We would
16 appreciate a response outlining NYSDOL's intentions."
17 The response basically was that we
18 don't -- a reiteration that we don't
19 have regulatory authority -- and in deference to DOE.
20 Well, in 1997, October, the Congress, in its infinite
21 wisdom, saw fit to transfer the [FUSRAP] program from
22 DOE which it viewed as a waste of money -- DOE was
23 just a sinkhole for federal money -- you know, and
24 part of that criticism is probably deserved.
25 However, this was the height of irresponsibility,
0075
1 this action of transferring the FUSRAP program, which
2 was almost at its point of decision and completion,
3 to the Army Corps for implementation.
4 So, we are a small organization.
5 We weren't able to pursue any legal action against
6 the State, you know, on this license. We let it go.
7 I'm sort of -- I'm sorry we did let it go.
8 We were outside the statute of limitations, I guess, in
9 any case. So, let me just consult my notes
10 here and see what I'm going to comment on next.
11 The other point that I had here
12 about correcting myths and lies propagated by DOE and
13 other agencies is this myth that the properties were
14 cleaned up to "standards of the time". I really
15 already addressed this. They weren't cleaned up to
16 the standards of the time. The Tonawanda properties
17 weren't. It's that simple. The properties were turned
18 over for unrestricted use. I'm talking now
19 specifically about the Haist property transfer - it was
20 strictly illegal. It was an illegal act with large
21 consequences, you know, and we'll have larger future
22 consequences if this isn't handled properly now.
23 When I say large, I'm talking, as I
24 alluded to earlier, not about something
25 that the public's really going to notice. It's going
0076
1 to be a few cancer deaths a year that, with
2 expert epidemiology, are going to be attributable to
3 this material. But those deaths are going to go on
4 year after year after year. You're going to incur
5 health care costs. Tens of thousands of years
6 of these costs are going to be generated because this
7 material has been improperly managed. In my view,
8 the sum of those costs is far in excess of the cost
9 of properly managing the material now. It's a
10 no-brainer -- you don't even have to sit
11 down and do the calculations.
12 I would also like to say
13 that as a result of documents released by the
14 Department of Energy - this is in reference to the
15 standards of the time and the actual extent and
16 nature of the contamination as reported by DOE - an
17 investigative journalist named Peter Eisler did some
18 intensive -- for USA Today did some investigation of
19 these inactive sites and reported in an excellent
20 multi-part series [identified above] in the newspaper USA
21 Today, following a review of old documents that were
22 declassified - mainly under Secretary Hazel
23 O'Leary's tenure at DOE - documents that indicate that
24 a lot of these operations were dirtier than as
25 reported by DOE. And I mean dirtier in the sense
0077
1 both of worker exposures and actual materials left
2 on the sites.
3 So, although we asked DOE for an
4 actual source term determination of the materials -
5 radioactive materials - present at the Tonawanda Site
6 properties during the public review process, in our
7 comments on Ashland 1 and 2, in our comments on
8 Linde, we never received a source term -- the total
9 radioactivity in Curies -- a Curie determination of the
10 materials present.
11 We estimated -- we've got some
12 original documents that talk about Curies released to
13 sewers, released to surface drainage, pumped into the
14 ground. I did a calculation based on the
15 concentration reported in the [AEC's] '57 survey of the
16 residues at the Haist property, 0.54 percent.
17 I've done a calculation of that: Eighty-six thousand
18 pounds of uranium in the residues, fifty Curies, perhaps,
19 you know.
20 It's apparent to me now that
21 there's probably a lot more contamination present at
22 that site than these DOE documents
23 would indicate. So, my concern is that we don't
24 really have a good assessment. And the longer, of
25 course, that these sites unravel and this material
0078
1 disperses into the environment, the more difficult it
2 will be to get a very accurate picture of the actual
3 activity of the materials present.
4 So, in any case, when the sites
5 were released by AEC - by Manhattan Engineering
6 District and AEC - they weren't cleaned to the
7 standards of the time. That's certainly true, and
8 their unrestricted release were illegal acts.
9 I made reference to the fact that
10 it appears to us that DEC's only concern over the Linde
11 ROD was, as they expressed in the letter of
12 8/23/99 from through Stephen Hammond to George
13 Brooks [previous Army Corps official], that the criteria
14 developed in that ROD would leave behind source
15 material concentrations.
16 I guess a question I had
17 for DEC is -- and I asked this at that point -- is
18 why did DEC not license the source material? If, in
19 fact, DEC really wanted to control this
20 material, then it could have licensed at least that
21 portion of the material that met the source material
22 concentration. It did not do that. So
23 while I don't really want to attack DEC in
24 this regulatory setting, because this regulation at
25 this point appears to be one of the few steps New
0079
1 York State is willing to take to at least keep Army
2 Corps from disposing of below 600 picoCurie/gram
3 material in inappropriate locations in New York
4 State, I still think that DEC isn't really much
5 better than NRC. And so accept the criticism or not,
6 the record really speaks for itself were it known
7 publicly. That's why I'm here today.
8 I guess I'm pretty much done
9 with the historical part here.
10 I have a number of documents;
11 they're really already in the possession of the
12 State. This letter to Sweeney of March 3, 1997, was
13 copied to Mr. Cahill, [former] Commissioner of DEC.
14 So, DEC does have a copy of it. And I assume DEC has
15 access to a copy of the response -- the response to
16 the letter which was written by John Sweeney on
17 March 17, 1997. I then replied again on March
18 23rd.
19 I sent a subsequent letter in
20 response to Commissioner Sweeney's response,
21 again requesting regulation -- you know,
22 re-regulation. And then there was an April 10th,
23 1997 reply to that March 23rd letter of FACTS. That
24 April 10th letter -- it was from Connie Varcasia,
25 for Mr. Sweeney. So, that's a very
0080
1 important part of the record, I believe, in the sense
2 that this material really needs licensure to
3 adequately control it. That's quite apparent.
4 And I apologize for the bit
5 of a disjointed nature of the comments here,
6 because I haven't really had an opportunity to
7 put together well-organized written comments.
8 As far as the actual regulation
9 goes, the amendment, I'll just repeat what I said
10 before the break, briefly: That I don't think it's
11 adequate, because I'm afraid that -- . I
12 potentially see Army Corps, under their new
13 Draconian attempt to undercut even the [small] amount
14 of budgeted dollars that Congress has seen fit to
15 give them, coming to DEC to try to get some form
16 of a variance to Part 380 that would allow these
17 materials, as Ms. Youngberg referred to,
18 in "slight concentrations" -- what is "slight
19 concentrations", of course, is what the question is --
20 allow these materials to be disposed of in New York
21 State facilities that are not licensed for 11.e(2) byproduct.
22 So, I don't think this is an
23 adequate rule-making. It may help -- but it's
24 unclear what Army Corps' position is. They were not
25 on the record here today, although they were
0081
1 present -- several of them were present here today.
2 They chose not to go on the record.
3 The other thing that concerns me is
4 this -- the wording about the sewers. And I commented --
5 I think I actually was the only member of the public
6 to comment on the 1994 revision of Part 380. And I
7 commented -- and my comments then were, as my
8 memory serves me, largely ignored, but those are in
9 the record. And the problem with sewer discharges --
10 as the 1994 Part 380 now stands -- sewer
11 discharges are excluded from consideration in
12 meeting the one hundred millirem dose to the public
13 standard. And so -- I can cite right here --
14 I have the Part with me -- correct me if I'm
15 wrong, Ms. Youngberg, but there's an
16 exclusion for sanitary discharge so long as it's in
17 aqueous form. That means water soluble.
18 And the reason for that -- one of the
19 reasons Part 380 was amended was because of a problem
20 that occurred here in Tonawanda precisely involving
21 sewage discharge of radioactive materials to the
22 sanitary sewers. And that involved the EAD company
23 that was involved in smoke detector manufacturing.
24 The problem was that they were releasing to the sewer
25 system materials that were not fully soluble in
0082
1 water -- aqueous systems. So, the result was that
2 the sewer system was contaminated, the plant was
3 contaminated, and it cost upwards of over two million
4 dollars to rectify the problem. That prompted DEC to
5 put in place this sewer revision that required
6 aqueous -- that radioactive material be in aqueous
7 form so that it would not precipitate out in
8 the sewer system, and in the plant.
9 It seems to me, as I read Part 380,
10 that there doesn't seem to be a limit on the sewer
11 discharge -- a dose-based limit, and that's
12 a concern of mine. Because in talking with John
13 Mitchell of DEC prior to this meeting and talking
14 with other members of FACTS, there was some sampling
15 done this summer of Rattlesnake Creek waters while
16 Army Corps was excavating on Ashland 1. I
17 guess they're done with Ashland 2 now. And the Corps
18 was interested in -- and this was a wet summer, a
19 very wet summer, and not a good year to
20 be doing any excavation over there. But, you know,
21 in the macho manner of Army Corps, we'll just ignore
22 the weather and get the job done.
23 So, they're over there and they
24 had a lot of water and a lot of runoff, and they asked
25 for permission to discharge to Tonawanda's sewer system.
0083
1 And apparently it was granted. Tonawanda had no
2 objection and apparently DEC had no objection. I
3 don't know the extent of surveying that was done,
4 the sampling. I do know that historically certain of
5 these isotopes were mobilized down that - over the
6 course of many years - down that watershed, and that
7 was one of the main ways the Ashland 1 material
8 dispersed -- outside of the actual transfers [by
9 Ashland], which was the main dispersal method,
10 the direct physical transfers.
11 So, I'm worried about
12 that sewer loophole. I'm concerned that Army
13 Corps in its total lack of responsibility -- I mean,
14 conceivably, if this stuff was rendered in
15 aqueous form, sewer discharge would be a way for them
16 to eliminate it. However, it may be expensive to
17 render in aqueous form, so that's not potentially an
18 issue -- probably not a serious issue. Anyway the
19 sewer thing, I think, is a point of concern and --
20 you know, if we're going to learn anything from the
21 EAD mess, I think we need to really watch that
22 closely.
23 Also, the Part 380 allows disposal
24 subject to Part 383 requirements. In other words,
25 the disposal, if it's going to occur, must be
0084
1 according to Part 383. Part 383 is basically the
2 State counterpart of 10 CFR 61, which are the
3 regulations that were developed by NRC, and I might
4 say, after extensive public review with a lot of
5 public input, to govern the disposal of low-level
6 radioactive waste. And the Part 10 CFR 61 is
7 equivalent roughly to Part 383, I guess the State's a
8 little bit better in certain respects. Part 383, the
9 basic provision is that the disposal must
10 be such that it assumes about a five-hundred-year
11 decay time; that if the materials - if an
12 intruder comes into the site and there's no
13 institutional control, that after five hundred years
14 there won't be an excessive dose above the dose
15 limit.
16 Okay, the dose limit for 10 CFR 61
17 is twenty-five millirems per year to a member of the
18 public. This is not a suitable disposal alternative
19 for these 11.e(2) materials. So, in other words,
20 to allow -- potentially to allow their disposal
21 in a 10 CFR 61 or Part 383 State permitted facility for
22 low-level wastes I don't think is suitable. It's not
23 adequate. These materials are radioactive virtually
24 forever. Their half-lives are such that you
25 won't see any appreciable decline in radioactivity
0085
1 for over a half a billion years. Or, I'm sorry --
2 at least a half a million years. So, we're
3 looking at very long-lived isotopes, so you might
4 as well say forever. Five hundred years is grossly
5 inadequate.
6 That CERCLA rule that EPA
7 developed -- the 40 CFR 192 rule that EPA
8 developed for radium in 1983, the 5/15 pCi/g rule for
9 radium, calls for two hundred to a thousand years.
10 That's not adequate. That duration of isolation,
11 it's not adequate. They're saying that two
12 hundred years is all that the disposal
13 facility must isolate the waste for, reliably.
14 Two hundred years is a drop in the bucket when
15 compared to the hazard period for these materials.
16 So, they really need to meet the 10 CFR 40, Appendix
17 A criterion: no active maintenance for as long as possible.
18 The site needs to be -- the physical suitability of
19 the site must be such that environmental isolation will be
20 achieved for the longest duration possible.
21 And to me that means these
22 materials only belong at Envirocare or the Nevada
23 Test Site; not at Envirosafe, not at Blanding, Utah,
24 not at Dawn [Ford, WA] not at Buttonwillow, CA. These are
25 all sites that Army Corps has used. And this is
0086
1 improper; it's short-term, it's short-sighted.
2 They're saving a few dollars now. The Congress are
3 not the experts. I called the NRC Chairman's office
4 yesterday and I spoke to people in his office about
5 this director's decision that Ms. Youngberg referred
6 to, this recent director's decision on 11.e(2)
7 material, pre-'78. I said that it was an
8 unconscionable act, it was outrageous --
9 particularly outrageous because the current chairman,
10 Richard Meserve, was the attorney for Kerr-McGee in
11 a 1990 federal court action, and he was arguing then
12 on the side that there be no regulatory gap. He was
13 arguing against NRC at that point. He even, in
14 March of last year, responded to a query by Senator
15 Bennett of Utah, who represents an impacted state,
16 impacted by Army Corps improper disposal; he
17 responded to the letter questioning his
18 views on the Kerr-McGee case.
19 This is a March 8, 2000
20 letter from Chairman Meserve to Robert F. Bennett --
21 he's a U.S. Senator for Utah. There's four
22 questions that Senator Bennett had asked the NRC
23 chairman. The third one was, would you agree that
24 the -- the question was: "Do you agree that the
25 decision in Kerr-McGee versus NRC supports NRC
0087
1 regulating all FUSRAP waste?" Answer -- this is NRC
2 Chairman Meserve, attorney for Kerr-McGee in 1990,
3 "Yes, I believe the decision in Kerr-McGee versus NRC
4 does tend to support the NRC regulation of pre-1978
5 FUSRAP waste; however, the specific issue was not
6 addressed by the court."
7 Well, yes and no. I'll just finish
8 reading this and then I will comment.
9 "Consequently, there is ambiguity
10 as to the extent of the NRC's authority in this
11 area." This ambiguity is only in NRC's minds,
12 it's not in the minds of the public or, I should say,
13 of the Congress that passed UMTRCA. The bulk of the
14 Congress that passed UMTRCA fully intended to close a
15 regulatory gap, thought they were in fact closing the
16 regulatory gap that existed. But instead, in fact,
17 the regulatory gap wasn't closed because NRC didn't
18 act.
19 Finishing the answer: "Thus, a
20 legislative solution is the most direct approach to
21 clarifying the NRC's responsibilities under UMTRCA."
22 Well, he's asking here -- but first I'll finish.
23 There's also a fourth question.
24 "Would I" -- this is Meserve
25 asking, "Would I as NRC chairman" -- this is the
0088
1 question paraphrased: Would I as the NRC chairman
2 support legislation that would absolutely make clear
3 that pre-1978 FUSRAP waste should be regulated and
4 disposed in licensed sites?
5 Meserve's answer, "If Congress
6 believes that the NRC should regulate such waste, I
7 stand ready to assist the Congress in amending
8 UMTRCA. The NRC would need additional resources to
9 regulate pre-1978 materials."
10 Well, what this tells a now very
11 jaundiced and cynical public observer is that NRC
12 would be perfectly willing, even at probably March
13 8, 2000, to regulate this material were they given
14 a big bunch of money by Congress. This is sort of
15 an incredible public behavior. It's -- its
16 almost beyond belief when we're talking about such
17 serious matters. Give me the money now and we'll
18 regulate it. By the way, we would like some
19 additional legislative authority. We think we need
20 it. At least that's our excuse for not regulating
21 it: we think we need more authority.
22 In fact, they don't need more
23 authority.
24 You know, I just recently got
25 a copy of this director's decision, and one of the
0089
1 items that I made a point to express to the NRC's
2 Chairman's office yesterday in my phone conversation
3 was a misstatement of fact made on page twenty-two of
4 this director's decision -- I'm reading from
5 D.D., Director's Decision, dash aught aught dash
6 aught six [DD-00-06]. This was rendered on December
7 13th, 2000. The statement is made that the Corps has
8 indicated that none of this material - referring to
9 the 11.e(2) material being remediated by the Corps -
10 has been disposed of in a Subtitle D landfill.
11 A document provided to FACTS -- that
12 is actually in the public record, but FACTS has
13 since lost interest in pursuing every step of this
14 matter, because it appears that malfeasance is so
15 wide-spread on the part of the government agencies --
16 the Army Corps issued a project completion report
17 titled, "Project Completion Report, Demolition and
18 Debris Removal, Former Linde Building Thirty, Praxair
19 Facility, Tonawanda, New York." This was prepared
20 for Army Corps of Engineers, Buffalo District, by
21 Radian International, which is a Dames and
22 Moore Group Company, Rockville, Maryland, dated
23 December 29th, 1999. This is USA contract number
24 D A C A 31-96-D-0026; and
25 further, it's Radian project number
0090
1 80003621.
2 Page 7-8 of this report is a
3 summary of waste disposal conducted for the project,
4 this is the demolition of Building 30. One
5 of the items is 24.92 tons of
6 North Bay debris from Building 30 that was
7 transferred to Integrated Wastes' Schultz landfill
8 facility in Cheektowaga, New York. It's -- according
9 to Dr. Merges, Paul Merges, it's a Subtitle D
10 facility, a RCRA Subtitle D facility.
11 The non-radiological
12 components of these FUSRAP materials are
13 subject to EPA control and they can allow disposal in
14 RCRA facilities for the non-radiological components.
15 However, these were radioactive materials below the
16 criteria that Army Corps set in their ROD, but above
17 the criteria that others would like to see remediated
18 and properly disposed in an 11.e(2) licensed
19 facility. So, 45 picoCuries per gram concentrations
20 of uranium are now sitting in Schultz.
21 And we really don't know how much. We don't
22 know how reliable these reports are, quite frankly.
23 This is Army Corps reporting, remember. These are
24 the people that lied to us all along. These are the
25 people that exposed workers. These are the same
0091
1 mentality, the same mind set that fed plutonium to
2 people without their informed consent. This is the
3 same mind set. So, you know, can we even trust them
4 that they've determined the concentration properly?
5 Are their sampling methods adequate? They were
6 heavily criticized in the past for inadequate
7 sampling methods. The soil pile at Linde comes to
8 mind.
9 So, I informed them [NRC Chairman] of
10 that. They seemed - in Rockville, Maryland, they
11 seemed to be interested in that. I haven't
12 heard back from them; perhaps it's too early.
13 But apparently, just to bring DEC up to date,
14 they [NRC] have a twenty-five-day period following
15 the filing of the decision by the Director,
16 William F. Kane, of the Office of
17 Nuclear Materials Safety and Safeguards. The
18 Commission has a twenty-five-day period to review the
19 decision. I was informed on a return call that the
20 decision was going to be reviewed -- you
21 know, was in some form in review. I don't know
22 whether that's just to try and put me off
23 or not -- I think it probably is. I think
24 it's pretty clear where NRC has stood on this for
25 some time.
0092
1 I haven't had the opportunity, John [Mitchell]
2 or Barb, to look at the documentation referred to in
3 this petition that was denied the Snake River Alliance
4 and Envirocare. I don't have everything -- I have
5 some of the material that was supplied to me -- the
6 original petition by Envirocare. I do have that. I
7 think their argument is extremely cogent. I mean,
8 they're right on the money. I don't support
9 Envirocare, by the way, and I've made this statement
10 before publicly. I'm speaking simply in the
11 public interest. Envirocare's cost structure is such
12 that it will discourage use of that facility and has
13 discouraged use of that facility. It's a cost
14 structure that is excessive. And in light of the
15 fact that the material will be turned over in twenty
16 or thirty years to government responsibility
17 anyway, it makes no sense to me for federal -- for
18 tax dollars to be lining the pockets of a private
19 operator which then will turn over the responsibility
20 for long-term management -- when I say "long-term," I mean
21 thousands of years' management of that material --
22 of the disposal facility to the state of Utah
23 or eventually to NRC.
24 So, we've advocated all along the
25 use of the Nevada Test Site, which is a government
0093
1 property that's well known -- as far as institutional
2 memory, as far as public memory, it's well known that
3 it's a contaminated site. In our view and from our
4 research, it's equally suitable from the standpoint
5 of lack of likelihood of groundwater
6 contamination. So, we think that
7 Envirocare is right on the money. Their obvious
8 interest in this is purely economic and that's
9 important to realize -- we realize that
10 full well. However, they do have a site that
11 meets the requirements, it is licensed by NRC, and
12 this is where the material should be going
13 if the federal government won't open up NTS.
14 NTS has waste acceptance
15 criteria that are just politically based; they're not
16 based on science. Their waste acceptance criteria
17 should be changed to allow for this material. It
18 could be disposed of for the cost of transportation
19 and minimal site development costs for a facility, at
20 a much lower cost -- according to some pre-decisional
21 documents from DOE, when I
22 say "pre-decisional," I'm referring to the
23 environmental review process that was conducted and
24 then aborted for the Tonawanda Site. So,
25 if this is to be done right, and cost is an issue, as it
0094
1 always is, then the Nevada Test Site is the site to
2 use and just keep it under federal control right from
3 day one of transfer.
4 Anyway, I haven't had an
5 opportunity to look at all these documents. The
6 National Mining Association -- does Paul have a copy
7 of this director's decision? Okay.
8 Is the Department familiar with all
9 the -- all the submissions? No?
10 MR. RAUCH: Okay. There are a lot of
11 submissions here. I was surprised to see the
12 National Mining Association come in and enter on the
13 side of the Petitioners, encouraging NRC to regulate
14 this material. I'm not real clear on what their
15 interest is, and why. It's not real clear
16 from the write-up here that NRC presents.
17 But in any case, the Envirocare
18 paperwork is very good and it's right on the money,
19 it's accurate. And I guess after the
20 twenty-five-day period, after the final
21 Commission review is completed, if there, in fact, is
22 a review of this decision, then perhaps further
23 action will be taken by the interested parties.
24 I don't know. I'm sort of sick of trying to temper
25 what I have to say. Based on the
0095
1 past behavior of agencies, my comments
2 appear to have been meaningless, as far as affecting
3 future decision-making.
4 But I think I've said pretty
5 much of all I wanted to say. I was going to
6 comment - the gentlemen have left from Praxair and
7 from Modern Landfill. And Dr. Dooley, CANiT -- I was
8 informed in the hall that Dr. Dooley's comments,
9 although he didn't make it clear, do apparently
10 represent CANiT, because he's still under contract as
11 a consultant to CANiT. [also Praxair, we later learned.]
12 CANiT is the group of local
13 politicians. CANiT is not an incorporated,
14 non-profit or public interest organization. It's a
15 group of politicians acting in ex officio capacity
16 while they hold public office and make statements to
17 the public. It's an organization that has
18 met secretly behind closed doors to arrive at
19 decisions and positions that they would take in
20 dealing with DOE and Army Corps. We feel -- we've
21 criticized CANiT in the past for violating proper
22 public review procedures by holding these
23 secret CANiT meetings, for using this
24 ex offico approach to this issue. It's
25 inappropriate and it's a disgrace to these
0096
1 politicians, including John LaFalce, Carl Calabrese,
2 Chuck Swanick, State Senator Mary Lou Rath,
3 who is an infrequent attendee. Her representative is
4 Ray Sinclair, a local town councilman. Mary Lou
5 Rath -- Alice Roth, the city mayor. There's a number
6 of people that are on this -- Grand Island officials
7 are involved, the North Tonawanda mayor.
8 But the active participants at the
9 CANiT meetings that we have been advised of and have
10 been open to the public are the county executive,
11 Gorski -- Rich Tobe [Planning Commissioner] was
12 his representative. Now Carl Calabrese is Deputy County
13 Executive now that Joel Giambra is the County Executive,
14 so this rests on their heads. You know, the statement
15 that Dooley made here reflects their thinking quite
16 clearly. He is their consultant. This is an
17 individual that worked for the Department of Energy
18 for years, he worked at the West Valley facility -- who
19 has been criticized by FACTS in the past for
20 espousing the industry view, which is not based on
21 sound science. This individual has even gone so far
22 as to say that a little radiation might be good for
23 people. It's incredible, it's a mess and the responsible
24 people at DEC -- you know, we hope that they'll do
25 the right thing.
0097
1 That's about all I have to say.
2 Well, I was going to
3 say something about Praxair people. I've already
4 said it. I said a strong statement.
5 However, Ms. Youngberg said that --
6 in her opening remarks said that the transfer --
7 Congress' transfer of the FUSRAP program -- in fact,
8 what it was, was a transfer of the appropriation from
9 DOE to Army Corps. She said that, quote,
10 "removed control from DOE," control over the
11 material. I said this earlier, I don't believe it
12 does remove control. I don't believe that --
13 I don't know that a memorandum of understanding was
14 ever completed between DOE and Army Corps.
15 Was it? It was. Okay.
16 Even -- even though it -- even if
17 it was completed, it doesn't void the actual law --
18 previous laws of Congress. I don't believe an MOU
19 can void a law. That's my understanding of
20 the law. So, DOE is legally responsible. And the
21 reason that the MOU dragged out so long was that DOE
22 realized, recognized fully -- their attorneys
23 recognized fully that they did have legal
24 responsibility.
25 People like myself that came
0098
1 forward, organizations like FACTS that have pursued
2 information requests into federal court and obtained
3 the contracts that I referred to earlier, these all
4 have forced DOE's hand to some extent. Were we not
5 present here, none of this may have happened, you
6 know, none of this would have even come up. Who's to
7 say? We're not trying to blow our horn, but the fact
8 is DOE is legally responsible. They own the
9 Niagara Falls storage site, they own the materials,
10 they own the wastes. How more responsible can you
11 be? Materials left behind at these sites above then
12 current criteria for unrestricted use.
13 So, I just think that needs to be
14 corrected, Barb. I think DOE -- I
15 think DOE is responsible. I made that point, I
16 think, earlier in an e-mail I sent you last week,
17 too.
18 I would encourage DEC
19 to get -- if they haven't already, to get
20 additional legal opinion from DEC attorneys and from
21 the Attorney General of the State of New York. I
22 said earlier that FACTS' attorney had met with a
23 representative of the State Attorney General Eliot
24 Spitzer after we had started our lawsuit to prevent
25 implementation of the Ashland ROD by Army Corps. And
0099
1 it seemed that the reply we got from the party at the
2 Attorney General's office was that they would not
3 take action without a request from DEC. When we
4 asked DEC, DEC's response was, well, it's not our
5 decision. It's up the ladder. That told us it was a
6 decision being made above the -- above Paul
7 Merges' head, above even this division director's
8 head. So, that tells us it either was at the
9 Commissioner level of DEC or at the State of New York
10 Governor's level.
11 We don't understand why the State
12 hasn't pursued this action -- a legal action in
13 federal court to force NRC. We think they're best
14 situated to do that. We as a public interest group
15 have very limited resources. We did our best.
16 I explained in a telephone conversation with Paul
17 Merges in the fall, last fall, that we did our best
18 to try and get this done locally in the Federal
19 District Court of Western New York and we failed on a
20 technicality of venue. Had we brought the suit in
21 New York City, in the Appeals Court -- the Federal
22 Appeals Court, we might have -- and had we brought it
23 earlier, had we brought it much earlier, before the
24 Ashland ROD was issued by U.S. Army Corps of Engineers --
25 gotten a favorable declaratory judgment from
0100
1 the federal court that, yes, in fact,
2 NRC was authorized to regulate this pre-'78
3 material, and we wouldn't have all this mess now.
4 You know timely legal action by the State could have
5 prevented a lot of this, forcing NRC to regulate this
6 material.
7 I'm not at all convinced that the
8 argument that Envirocare raises about preemption --
9 federal preemption is not valid. If NRC
10 has the authority to regulate this material
11 and has the regulations in place, 10 CFR Part 40,
12 Appendix A, Branch Technical Position 1981 guidance,
13 and New York State didn't promulgate regs, then NRC
14 should regulate. You know that's the action that
15 needs to be taken. I appreciate this attempt, but
16 the real action that needs to be taken is to make NRC
17 regulate this material federally. This isn't going
18 to protect other states. We don't care about other
19 states, apparently -- well, we do. Our organization
20 does. We work closely with other organizations
21 at these locations that have been receiving Tonawanda
22 material.
23 I commented earlier about
24 the Army Corps disposing of our material in Utah. Well,
25 that's the International Uranium Corporation of
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1 America mill site. It's their White Mesa mill site
2 where Ashland's contaminated soils are being sent by
3 Army Corps under a sham "alternate feed material"
4 scheme approved by NRC. How can NRC call
5 this -- these contaminated soils from the
6 Tonawanda site -- call it "alternate feed material"?
7 In effect, they're saying it's "source material" if it's
8 being processed for uranium extraction, in effect,
9 "source material", which means that it's not 11.e(2)
10 material -- how can they say that? They're
11 arguing both things. They can't do it. They can't
12 do it legally. It won't hold up in court.
13 You know, NRC would just like to ignore
14 it; according to NRC, this Tonawanda Site material
15 really isn't -- it's not 11.e(2) byproduct material
16 because they don't regulate it. It's not 11.e(2).
17 DOE says it is 11.e(2) material. You know, obviously
18 it is 11.e(2) material. Congress intended it to be
19 regulated -- and be regulated by NRC failing
20 regulation by Agreement states. It's really that simple.
21 You know, all these stacks of papers that NRC
22 has developed to try to support their
23 position -- they're erroneous. I say give
24 them the money, let them regulate it.
25 Anyway, I think that that's what DEC
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1 needs to do. The Governor of the State
2 needs to be talked to and the State Attorney General
3 needs to be activated to pursue NRC.
4 That concludes my comments. Thank you
5 very much for bearing with me. As I said earlier,
6 I probably will not provide written comments.
7 We're pretty much fed up with how the State has
8 handled this, and so we just -- we're
9 available as a resource.
10 Any of the documents that
11 I talked about here today, including all these
12 historic 10 CFR Part 40 Parts -- I have
13 Parts from 1947 subsequent to passage
14 of the Atomic Energy Act of 1946, I have 1949, I have 1959,
15 I have 1961, I have 1996, all the pertinent
16 changes governing the material. I have them all
17 here. It represents a lot of microfiche
18 research at the University of Buffalo. It's been --
19 there's a lot of man-hours here.
20 The FACTS organization has a lot of
21 documentation. We have the documents that were
22 provided by GSA that clearly show the illegal
23 transfer by AEC of the Haist property. We have those
24 documents. In fact, included in that box of
25 documents was the Buffalo News clipping -- I guess I
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1 alluded to this reportage that the site had no
2 radioactive material on it. That was part of the
3 package, but there are also other letters
4 between the GSA officials discussing the
5 contamination to the effect that AEC determined that
6 to clean it up was going to cost more than
7 the property was worth and so, therefore, just get
8 rid of it. It's just incredible
9 irresponsibility on the part of all the officials
10 down the line, from Army Corps' Manhattan Engineers
11 through AEC, through ERDA, through NRC.
12 Thank you very much.
13 THE HEARING OFFICER: Thank you.
14 Since there are no further
15 comments, this session for receiving comments is
16 officially closed. Thank you for coming.
17 I would like to repeat that written
18 comments may be sent to Barb Youngberg until January
19 17th, 2001.
20 And, Mr. Rauch, I think you know
21 her address; right?
22 MR. RAUCH: Pardon?
23 THE HEARING OFFICER: I think you
24 know her address?
25 MR. RAUCH: Yes, I do.
0104
1 THE HEARING OFFICER: Okay.
2 Thank you very much for coming.
3 (The hearing adjourned at 3:51
4 p.m.)
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