Date: Mon, 2 Apr 2001 12:23:01 -0400 (EDT)
From: James Rauch
To: Barbara Youngberg
Subject: Comments on NYS DEC 6 NYCRR Part 380 amendment

Barbara Youngberg,

In 1962, NYS was one of the first states to obtain Agreement State status from the Atomic Energy Commission. This Agreement delegated to NYS the authority to regulate all radioactive materials (except certain high level materials), authority otherwise reserved to the NRC under the AEA.

In 1978, after much public outcry, Congress passed the Uranium Mill Tailings Radiation Control Act (UMTRCA) creating a new 11e.(2) byproduct waste category specifically to deal in a comprehensive manner with ALL uranium mill tailing wastes, including those wastes previously generated at sites no longer active or licensed (see F.A.C.T.S. latest).

After passage of UMTRCA, NRC's unnecessary and unwise initial deference to the Energy Department (DOE), which still retains strict liability for all of Tonawanda's 11e.(2) wastes and most other FUSRAP sites' wastes, resulted in NRC failing to regulate these "pre-1978 11e.(2) byproduct materials". This despite the fact that the Congress of 1978 clearly intended that there be no regulatory gap, i.e. that all such materials irrespective of date generated were to be carefully regulated by NRC. After having set up the ad hoc FUSRAP program in 1974, DOE for the most part simply continued its historic pattern of inaction or haphazard, limited cleanup at these sites.

As DEC points out in the materials accompanying this amendment proposal, following the passage of UMTRCA in 1978, NYS did not promulgate the necessary equivalent or better regulations (to NRC's 10 CFR Part 40 regs) at the state level that would have enabled it, under the existing Agreement, to regulate this new 11e.(2) category of byproduct materials created by UMTRCA. At that time the state was well aware that NYS possessed large quantities of such wastes (i.e. chiefly the Manhattan Project and AEC wastes produced under contract to DOE predecessor agencies), AND that such wastes were both passively and actively being dispersed into the environments surrounding the waste sites (see overview and brief history).

Given the huge quantities of these wastes within NYS, the state's failure to promulgate equivalent state UMTRCA regulations was a serious error by the state government of the day, and it should be admitted as such by DEC.

Instead, in its rulemaking impact statement, DEC now says that the reason the state did not promulgate state UMTRCA regulations is that NYS was not hosting any active uranium mills. This line of rationalization is identical to that recently advanced by NRC in defense of NRC's own failure to fulfill its legal obligations under UMTRCA to regulate all 11e.(2) materials.

Moreover, this DEC statement represents a complete turnaround by DEC. Prior to this rulemaking, advocacy by DEC's Paul Merges had initiated the Council of Radiation Control Program Directors (CRCPD) putting out a CRCPD position statement calling on NRC to regulate all 11e.(2) byproduct materials as required by UMTRCA irrespective of date generated. DEC's efforts in large measure prompted this CRCPD lobbying effort of NRC. This sudden reversal reflects very poorly on DEC's professionalism and New York State government in general.

Rather than take the necessary and proper legal action to enforce NRC's regulatory obligations under UMTRCA, NYS is now proposing to violate NRC's pre-emptive AEA regulatory authority through enactment of this amendment which is designed to regulate/prevent the disposal of any and all 11e.(2) materials within NYS.

This amendment does nothing to prevent continuation of Army Corps' further environmental dispersal of these wastes through its improper disposal of so-called "clean materials" , i.e. below USACE's illigitimate criteria, in out-of-state landfills, as USACE has done, for example in Erie, Pa.

Two wrongs do not make a right. NYS needs to seek legal redress of NRC's failure to regulate these materials. It should do so without any further delay.

Indeed, it is most unfortunate that less than 20 years after passage of UMTRCA, the Congresses of 1997 and subsequent years have seemingly forgotten the very reason why UMTRCA was enacted: the public clamor at the horrendous public health toll exacted at these neglected uranium mill sites. Instead, these Congresses first transferred funding for implementation of the cleanups from the legally responsible agency, DOE, to the non-AEA authorized Army Corps, and then stood by and watched Army Corps implement seriously deficient cleanup decisions. In fact, they went so far as to specify in the text accompanying these budget appropriations that NRC involvement was not desired and that the cleanup RODs were to be issued under CERCLA. These irresponsible and underhanded actions by recent Congresses have had the net effect of vitiating the UMTRCA without requiring the Congresses to actually change the law.

New York State's course of action should not be be influenced by these irresponsible actions of recent Congresses.

The sole purpose of this amendment should be as a stopgap measure to prevent Army Corps' taking additional disposal actions resulting in more widespread contamination of NYS lands.

It does not provide what is essential for the long-term protection of the public health and welfare of New Yorkers and all Americans: NRC's exercise of its exclusive AEA authority and responsibilities as mandated by UMTRCA to properly regulate all 11e.(2) materials, not just those generated after 1978. As DEC unequivocally states in the rulemaking documents, the pre-1978 materials are indistinguishable in hazard from the regulated (post-1978) materials.

Additional comments

The proposed DEC amendment signals landfill operators that all cleanup wastes from radioactive waste cleanup sites - for example those materials from the FUSRAP Tonawanda, NY Site determined to be non-radioactive by the Army Corps (i.e., Linde property soils below the cleanup criteria concentrations of 3021 subsurface/600 surface pCi/g total uranium, Ashland properties soils below the 40 pCi/g thorium-230 cleanup concentration, and Linde buildings debris) but which are licensable under existing NRC policies as radioactive materials posing a significant long-term hazard - are to be considered radioactive waste and not to be accepted by NYS landfills (as there are no appropriately licensed radioactive waste disposal facilities in NYS) unless a variance is granted by the DEC on a case-by-case basis (more on this below).

However, it is very important for the affected public to understand that this amendment will not prevent, and does not alter, the Army Corps' issuance of illigitimate CERCLA cleanup decisions, such as the Linde ROD. These cleanup criteria were strongly protested by DEC's Paul Merges and EPA's Paul Giardina, but the protests were not backed up with actions.

Moreover, as a result of a 1986 SARA amendment incorporating a new subsection 113(h) into the CERCLA, CERCLA RODs can not be challenged by citizens until after the "cleanup" is completed. F.A.C.T.S. (For A Clean Tonawanda Site), Inc. found this out in its June, 1998 federal district court suit over Army Corps' Ashland 1 and 2 ROD. (See legal summary.)

As several commenters have already pointed out, the existing Part 380 variance provision is a potentially large loophole through which, depending on political circumstances, a large amount of this waste could be driven to NYS landfills. NYS simply doesn't have at the state level the essential counterpart to the existing NRC licensing apparatus that provides for the rigorous, long-term managment of these materials.

All FUSRAP wastes that are above the NRC cleanup criteria for unrestricted release of properties should, by UMTRCA law, be going only to NRC-licensed 11e.(2) disposal facilities. Please refer to NRC summary for a discussion of these criteria.

ECIDA's comment letter (in support of Praxair's position statement by Dennis Conroy) claims the amendment will hurt good corporate citizens Praxair and Ashland Oil Co. I wish to point out that Ashland Oil is an absentee property owner of its unoccupied, FUSRAP-contaminated lands. Ashland has not been present at any public meetings during the several years of Tonawanda Site public environmental review process. And yet under CERCLA law Ashland may be a Potentially Responsible Party (see DOE authority review).

The first round of comment letters from the CANiT politicians (Charles Swanick, Laurence Rubin, and George Melrose) and Praxair claims the rulemaking violates the ECL, CERCLA, and the agreed upon process (i.e. Army Corps' deficient ROD for Linde, which incorrectly asserts the cleanup criteria are sufficient for unrestricted use), and then in an uncharacteristically frank fashion raises these parties overriding concern: namely that the rule will in effect reinstate liability for the significant contamination left behind and render re-development of the properties costly and difficult - soils disturbed for development would have to stay on site and could not be disposed in local landfills (for example, as Bldg. 37 was when Linde took it down in 1987 before DOE started the public review process for the Tonawanda Site).

This is a deplorable position for these politicians and Praxair to take. While I am accustomed to the CANiT politicians' unwillingness to acknowledge the long-term adverse public health impacts of their position supporting grossly deficient cleanup levels and their secretive modus operandi, this brazenly open expression of their overriding concern, i.e. their demand for immediate, unfettered re-development of these properties is surprising. Perhaps they are assuming that the public will never see or realize the significance of the contents of these letters.


James Rauch