Dave Adler
NY FUSRAP Site Manager
U.S. Department of Energy
Oak Ridge Operations Office
PO Box 2001
Oak Ridge, TN  37831                                          March 4, 1997

Dear Mr. Adler:

     The purposes of this letter are: to record the points that we
each made and to reiterate the list of information requests that I
made during our telephone conversations of January 22 and February
19, 1997, to report that the subsequent response to these informa-
tion requests has been unsatisfactory to date, to further respond
to your new points, and to make specific requests for action,
including a full explanation of DOE's illegal disposal of debris
from the demolition of Building 38 at the Linde/Praxair property.

     On January 22, 1997 you called and said you were the new Site
Manager for the Tonawanda, NY FUSRAP Site and that you were
responding to my previous attempts of January 15 and 17 to speak
with acting FUSRAP Project Manager Bill Seay.  I made the following
points:

1)   The site-wide final cleanup proposal put forward on August 6,
1996 at Congressman John LaFalce's Buffalo office, as described in
the August 7, 1996 Buffalo News, is unacceptable to us.  I referred
you to our September 28, 1996 letter to DOE's James Owendoff.  You
said you were unaware of it.  I briefly summarized the letter as
follows:
a) there have been no public meetings by DOE with all stakeholders
since June 18, 1996 to discuss the major unresolved issues, most
notably the determination of what, in reality, are the minimum
lawful and community-acceptable final cleanup criteria; and
b) neither F.A.C.T.S. nor the public was notified of the August 6,
1996 meeting; and so
c) we view this meeting as a serious breech of DOE's commitment to
provide an open environmental review decisionmaking process,
accessible to all stakeholders and interested members of the
community; and
d) I outlined the three major unresolved remediation issues set out
in the letter, and I specifically stated that we view any final
disposition (other than in an NRC-licensed disposal facility) of
any material resulting from the "interim actions" to be illegal.

2)   I said that DOE was obligated to give us the details of the
August 6, 1996 proposal, which was drawn up by LaFalce staffers and
DOE (according to letters we just received from you).  We have
still not been given the details of this proposal as they were
presented.  There were many details according to the confused
Buffalo News reporter who wrote the story.

3)   I said that a supplemental FS/DEIS, fully describing the new
proposal and comparing it to the existing FS/DEIS alternatives
(with the same level of detail and analysis), must be produced and
subjected to a new public hearing process of at least 45 to 60
days.

You said you would obtain and review our letter to Mr. Owendoff and
asked what else you could do to help.

4)   I said we had found it difficult or impossible to obtain from
the previous Site Manager, Mr. Kirk, several items of site-related
information necessary for our meaningful participation in the
prescribed environmental review process for Tonawanda, even through
properly-executed FOIA requests.  We had experienced delays of up
to six months.  You said that was unfortunate and inquired about
our previous requests and any new items we sought.

     Regarding previous requests, I indicated that: a) an appealed
request (VFA-0227) was still deficient; b) our request for the
contracts between MED and Linde (item 1 of our November 23, 1996
request [OR-209]) had not been met; c) the site-specific cleanup
criteria "supplement" for the Tonawanda Site (referred to in the
FS/DEIS package, and item 2 of OR-209) had not been supplied,
however, a new document entitled "Second Draft, Radionuclide
Cleanup Guideline Derivation for Ashland 1, Ashland 2, and Seaway,
Tonawanda, New York, November 1996", of which we were previously
unaware, had been supplied.  I gave you the exact title of the
draft FS/EIS "supplement" sought: "Yu, C., Peterson, J.M., Yuan,Y.,
Derivation of Uranium Residual Radioactive Material Guidelines for
the Ashland 1 and 2 Sites, Argonne National Laboratory, August
1988", as obtained from the list of references in the supplied
"Second Draft" document.  You said that you would personally
contact the Oak Ridge FOIA officer, Ms. Amy Rothrock, and attempt
to expedite the release of all of this information to us.  To date,
none of this information has been supplied.

     I also asked for a copy of the BNI radiological survey
referred to in the November 1996 EE/CA, and a copy of the St. Louis
task force's report.  We have been sent the BNI survey data, minus
the obviously necessary reference diagram(s) to locate the data. 
Ms. Rothrock currently has our follow-up request for this.  The St.
Louis report has been obtained directly from DOE's St. Louis
information office.

5)   Since our January 22 conversation, we sent a FOIA request, on
February 5, 1997, requesting copies of the Linde contracts to
NARA's Ms. Mary Roman as instructed by Ms. Rothrock in her response
on OR-209: "The responsive records were transferred to the custody
of the National Archives and Records Administration (NARA), History
Division at Germantown, Maryland.  You may obtain access to those
records by contacting Ms. Mary Roman, Seventeenth Street &
Pennsylvania Avenue, NW, Washington, DC 20408."  The NARA response,
February 20, 1997 (NW97-101), came from Cary Conn of NARA's Access
and FOIA Staff at College Park, MD and indicates that the College
Park location does not have the contracts sought, suggests that the
records sought are at the NARA branch in Atlanta, Georgia and then
recommends further contact with Ms. Rothrock to determine the
address of "DOE's [emphasis added] History Division at Germantown,
Maryland.  Ms. Mary Roman is a member of the National Archives
Staff, who deals with FOIA matters, but has no direct relationship
with a response to your request.  The address for (NARA) in
downtown Washington is Seventh Street & ... ."

     On February 4, 1997 our attorney submitted another information
request to Ms. Rothrock (OR 97-021).  As usual, we requested a
waiver of all fees for the reasons outlined in my April 12, 1995
letter to Ms. Rothrock and in Robert J. Rauch's November 23, 1996
request on behalf of F.A.C.T.S.  In the past, all of our requests
have been granted fee waivers, although not all of the information
requested has been provided.  Two days later, on February 6, 1997,
Ms. Rothrock replied that our request "initially falls under
commercial" and she requested "willingness to pay or a new
justification from you rather than James Rauch.  Please reply no
later than February 27, 1997."  

     We find DOE's responses to each of these recent information
requests to be unsatisfactory and very troubling.  Since you appear
not be fully informed as to who we are, I will briefly summarize. 
The F.A.C.T.S. staff consists of myself, Don Finch, and Ralph
Krieger.  I am a pharmacist with a longstanding interest in
promoting and protecting public health.  I have participated in
several public review processes dating back to the 1970s, and have
commented in detail on the DEISs for the Niagara Falls Storage
Site, the West Valley site, and the Tonawanda Site.  Don Finch is
a retired Linde/Praxair employee, Korean War veteran, and editor of
our newsletter.  Ralph Krieger is a Praxair employee and President
of Local 8-215, OCAW.  F.A.C.T.S. is a non-profit, public interest,
educational/environmental NGO that has been recognized by DOE as a
"community coalition" stakeholder at the Tonawanda Site.  As you
must know, meaningful public participation in the environmental
review process, as prescribed by NEPA, requires that information
pertinent to the review process be disclosed in a timely fashion. 
The information we have sought is pertinent to the Tonawanda review
and no one within F.A.C.T.S. has any commercial interest whatsoever
in the information we have sought.  We ask that you promptly
rectify this problem of access to site-related imformation.

6)   Your second call, on February 19, followed a conversation I
had earlier that day with Arleen in the Tonawanda Information
Center regarding an EMAB committee report that one of us had just
received.  I informed you that the we and other members of the
Tonawanda community (e.g., some CANiT politicians) view the EMAB
committee's work as not being a legitimate process representative
of local stakeholder values and as such it has no application to
Tonawanda's remedy selection process.  Immediately prior to my
conversation with you I had spoken with CANiT's Mr. Raab and he
confirmed this view of the EMAB and reported that CANiT had not
received a copy of the report nor had they had any contact with the
EMAB for almost two years.  This view is also held by stakeholders
at the New Jersey FUSRAP sites; in fact, they picketed the EMAB
meeting in Secaucus, NJ.

7)   I again made it known that site-related information essential
to the public review process was not being made available and again
asked for the details of the August 6, 1996 proposal.  You said
there was no definite proposal, just agreement on several "con-
cepts" (as noted above we just received copies of letters from
James Owendoff to Congressman LaFalce outlining these concepts). 
I asked what the relationship was between the derivation of the
thorium cleanup criterion given in the November 1996 "supplement"
which we had just received and the "proposal".  I objected
strenuously to both the derivation of the 40 pCi/g thorium-230
cleanup criterion and the idea of "soil blending" implied by the
derivation.  You were vague and said that "soil blending" had been
looked at but that it was not necessarily a viable option.  I said
blending was in effect dilution, which is anathema to sound waste
management.

8)   I asked you to confirm that no final disposition had been made
of any material resulting from the ongoing "interim actions".  I
referred to the November 7, 1996 response from John Baublitz (for
James Owendoff) to our September 28, 1996 letter to Mr. Owendoff in
which it is stated that the "Department will continue to store
clean material onsite at the Praxair facility until a site-wide
remedy is selected."  You then said that so-called "clean" debris
from the demolition last summer of Building 38 had been disposed of
in a local solid waste landfill.  You said you did not know which
landfill but that you would find out and let us know.  You have not
let us know.  I said that such final disposition was illegal, a
violation of NRC regs.  You did not disagree.

     You said that the "clean" debris was anything below 60 pCi/g
uranium and the 5/15 pCi/g for radium and thorium (it was not clear
which, 5 or 15 pCi/g was applied).  You said that the NYS Depart-
ment of Environmental Conservation approved these criteria and
agreed to this "disposal" action "as long as the landfill's
radioactive [detector's] alarms do not go off."

9)   I said that the procurement process for decontamination of the
buildings appeared to be very poor.  I said we had just obtained
information (the day before, from a third party) that at least one
episode of workers being exposed to airborne lead above the
permissible levels had occurred during the first subcontract
attempt to decontaminate Building 14.  I indicated that, according
to the partial documentation we had received, the request for bids
on decontamination of Building 14 specifies decontamination
criteria that do not meet the requirements of the U.S. Nuclear
Regulatory Commission (please refer to the answer to bidder's
question 11: "This is not a radium site", and the 1976 ORNL survey
report for the Linde property wherein ORNL experts recommend
decontamination to the fiftyfold more stringent radium decontam-
ination criteria).

10)  Also on February 19, Pat Griffin, the Bechtel Project Manager,
called me at your request.  He asked if there was anything he could
do in the way of providing information.  I asked for copies of all
the Requests for Proposals for all "interim actions" to date.  To
date, not a page has been supplied.

     In conclusion, we make the following points:

A)   Your initially-professed interest in restoring the legitimate
environmental review/public participation process that DOE
committed itself to years ago and the personal commitments that you
made to provide the pertinent site-related information identified
above now appear to be hollow.  If this is in fact true, we will
not be surprised.  On the other hand, we do not want to be hasty in
our judgement.  Perhaps DOE leadership is taking the issues we have
raised seriously.  Perhaps a legitimate process will be opened up,
and the essential pertinent information will be provided, to us and
to all interested stakeholders.

B)   Your revelation that so-called "clean" radioactive debris from
Building 38 has been "disposed of in a local landfill" is very
disturbing.  If this is true, we request that DOE provide us with
complete documentation of this transfer, including when it
occurred, the exact criteria and method used to determine which
material was "clean", how much material was transferred, and where
the material was taken.  We also request a full "chapter and verse"
explanation of DOE's legal basis, if any, for such a transfer.  

     We believe the offsite "disposal" of such material anywhere
except in an NRC-licensed facility is a clearly illegal act.  The
NRC licensing regulations for both source materials and byproduct
materials do not grant exemptions from licensing for the disposal
of de minimis (i.e. below regulatory concern) amounts or concentra-
tions of these materials.  In 10 CFR 40.13(a) the exemption for
materials that contains less than 0.05% source material by weight
is clearly given only to the extent than a person "receives,
possesses, uses, transfers, or delivers source material".  The
exemption does not cover disposal of source material.  Similarly
for byproduct material, 10 CFR 30.14(a) establishes an exemption
that does not include disposal of the radioactive material.  NRC's
intent not to establish a de minimis level for disposal of these
materials is clearly stated in 10 CFR 30.14(d): "No person may
introduce byproduct material into a product or material knowing or
having reason to believe that it will be transferred to persons
exempt under this section or equivalent regulations of an Agreement
State... ."

C)   Furthermore, it is our legal opinion that NRC must approve any
onsite activities, whether "interim" or final remediation, such as
"blending", that may result in the generation of materials with
diluted waste concentrations or the segregation of so-called
"clean" material if DOE's intended final remediation plan involves
keeping these materials onsite.

D)   If the transfer had already occurred when Mr. Owendoff sent
the November 7, 1996 letter to us, we do not know why he claimed in
that letter that DOE was holding such materials until a site-wide
remedy was selected.   We request that DOE tell us the reason(s)
why this statement was made.  Has any other so-called "clean"
material from any other "interim actions" at the Linde/Praxair
property been so "disposed"?  If so, we request that you provide
the documentation, in the detail described above, of any and all
such "disposal".

E)   Our third party source has informed us that a subcontract in
the amount of approximately $6 million has been let for a second
attempt at decontaminating Building 14.  We note that CANiT was
unaware of this fact as of February 19, 1997 (my telephone
conversation with Mr. Raab on February 19, 1997).  According to the
Town of Tonawanda tax office, this building is assessed for
$322,000.  We do not understand why decontamination of this
presumably fully-depreciated building is again being attempted at
a taxpayer expense of well over twenty times its present assessed
value.  We request a full explanation of DOE's reasons for this
course of action.  We also request that DOE tell us the dollar cost
of the first decontamination attempt.  The 1993 draft FS for the
Tonawanda Site lists the cost of demolition of all four Linde
buildings at slightly over $1.5 million (p G-29, lines 2a, 2b, and
2c).  We have repeatedly questioned the cost-effectiveness of
decontamination versus demolition (see our October 24, 1995 letter
to Thomas Grumbly).

     We will expect a thorough reply to all the points raised in
this letter.

                                   Sincerely,



                                   James Rauch




cc:  R. Bangart, NRC
     R. Hargrove, EPA
     J. Cahill, NYSDEC
     J. Sweeney, NYSDOL
     R. Tobe, ECDEP
     C. Borgstrom, DOE

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