Richard L. Bangart, Director
Office of State Programs
U.S. Nuclear Regulatory Commission
Washington, DC  20555-0001                                December 27, 1996

Dear Mr. Bangart:

     F.A.C.T.S. is a public interest, environmental/educational,
not-for-profit group.  We are the only non-governmental "community
coalition stakeholder" recognized by the Department of Energy in
the NEPA/CERCLA EIS environmental review process prescribed for
DOE's Tonawanda, NY FUSRAP Site.

     Our interest in the site is to see that past management errors
are not continued or repeated, and to ensure that a safe and
thorough removal of the wastes is accomplished and the most
efficient, secure long-term waste management strategy is henceforth
employed for Tonawanda's Manhattan Project (now FUSRAP) wastes. 
This is why we first wrote to NRC on March 26, 1996, sent three
more letters in September 1996, and why we are again writing today.

     For these reasons, elaborated in our previous letters to both
NRC and DOE and in our comments on each of DOE's Tonawanda EE/CAs
(enclosed), we need NRC to promptly define and to fulfill its
responsibilities concerning the following Tonawanda site issues:

1)   To date, has New York State ever had legal authority to
license and regulate Tonawanda's Manhattan Project wastes?  We do
not understand why it should take nine months to answer this
question.  Please explain the reason(s) for this delay.  We also
request that NRC immediately provide us a copy of New York State's
original 1963 Agreement State Agreement and all subsequent
amendments thereto.

     Our recently-initiated legal research into the question of who
historically had and who currently has regulatory jurisdiction over
the FUSRAP wastes indicates that:

     a) from the outset, the Manhattan Project waste materials met
the "Source Material" definition and, as such, were subject to the
licensing and regulatory requirements of Title 10 of the Code of
Federal Regulations, Chapter 1, Part 40, issued pursuant to the
Atomic Energy Act of 1954 and then administered by NRC's predeces-
sor agency, the former U.S. Atomic Energy Commission (AEC),

     b) New York became an Agreement State in October 1963, perhaps
giving it the authority to license and regulate the Manhattan
Project wastes.  To date, NYSDEC's Barbara Youngberg has failed to
provide us a copy of the original Agreement, and subsequent amend-
ments thereto, as promised during her visit to Tonawanda on
December 11, 1996.  Of course, New York State authority, if it was
ever granted, would be in addition to the AEC's, and successor
agencies' including NRC's, existing responsibility to control these
materials, as described in a) above, as well as in 10 CFR Part 150,
specifically Section 150.15(a)(5), "Persons not exempt" [27 FR
1352, Feb. 14, 1962],

     c) Section 40.2a(b) [45 FR 65531, Oct. 3, 1980] was subse-
quently added to 10 C.F.R. Part 40, stating "(t)he Commission [NRC]
will regulate byproduct material as defined in this Part [includes
Tonawanda's Manhattan Project wastes] that is located at a site
where milling operations are no longer active, if such site is not
covered by the remedial action program of Title 1 of the Uranium
Mill Tailings Radiation Control Act of 1978. The criteria in
Appendix A of this Part ["Criteria relating to the operation of
uranium mills and the disposition of tailings or wastes produced by
the extraction or concentration of source material from ores
processed primarily for their source material content] will be
applied to such sites" [emphasis added].  The Tonawanda, NY Site
was not included under UMTRCA and, therefore, Tonawanda's Manhattan
Project wastes were and are subject to Section 40.2(b),

     d) additional pertinent regulations, contained in Section
150.15a, "Continued Commission authority pertaining to byproduct
material", Section 150.31, "Requirements for Agreement State
regulation of byproduct material" and Section 150.32, "Funds for
reclamation or maintenance of byproduct material", were also added
at this time [45 FR 65536-7, Oct. 3, 1980].

2)   Since your November 12 reply to our September 30, 1996 letter
to Jeffrey L. Bartlett in the Office of General Counsel, DOE has
issued another EE/CA proposing another "interim" action covering
the demolition of Building 30 at the Linde/Praxair property of the
Tonawanda, NY FUSRAP Site.  As indicated above, our comments on
this EE/CA are enclosed.

     We are concerned that the DOE's Order 5400.5 guidelines and
decontamination criteria being utilized in "interim" removal
actions under this and an earlier Tonawanda EE/CA and Categorical
Exclusion (see our earlier comments, also enclosed) are not
equivalent to either the pertinent NRC decontamination and
decommissioning criteria or applicable state agency, NYSDOL and
NYSDEC, criteria and guidelines.

     The NYS Department of Labor's "Acceptable Surface Contamina-
tion Levels" specified in Table 5 of 12 NYCRR Part 38 requires that
fivefold lower average, maximum and removable contamination levels
be met for Th-nat, Th-230, and Ra-226 compared with those listed in
DOE Order 5400.5.  Yet, according to a July 11, 1996 letter to us
from Rita Aldrich, Principal Radiophysicist at NYSDOL (enclosed),
"Praxair does have a radioactive materials license issued by this
Department, and the building contamination was listed on the
license, although legally, New York State lacks jurisdiction over
the contamination."  There seems to be a contradiction here.  How
can New York have had the authority to issue a license covering the
Manhattan Project materials but not have the authority to apply
state regulations, e.g. Part 38, to control those materials?  Has
NRC, or any of its predecessors, ever issued any licenses to
Linde/Praxair covering the Manhattan Project wastes present on this
property?

     Ms. Aldrich also maintains that the NRC's Regulatory Guide
1.86 criteria and NYSDOL's Table 5 criteria "are the same", which
is not completely true, and "that DOE is using the same verifica-
tion contractor, to perform surveys to confirm that the decontami-
nation criteria have been met, as is used by the U.S. Nuclear
Regulatory Commission, and that the contractor concurs that the
criteria are consistent with Regulatory Guide 1.86."  From a health
and safety perspective, does NRC believe DOE's Order 5400.5
residual contamination criteria to be equivalent, to either NRC's
Regulatory Guide 1.86 criteria or NYSDOL's Part 38, Table 5
criteria?  Please explain why, or why not.  Are these three sets of
criteria also equivalent in terms of satisfying DOE's obvious main
purpose, i.e. segregating the Tonawanda materials into the smallest
possible radioactive waste portion and a larger "clean" portion? 
Again, why or why not?

     Although DOE says it "will continue to store clean material
onsite at the Praxair facility until a site-wide remedy is
selected" and DOE maintains that "the completed and planned interim
actions ... do not preclude long-term cleanup alternatives for the
site" (see enclosed November 7, 1996 reply to our September 28,
1996 letter to DOE's James Owendoff), the simple fact remains that
DOE is premature in spending money to segregate radioactive
materials from "clean" materials using criteria that have not been
endorsed by the Tonawanda community.  We think such expenditures
are prejudicial and violate the site's prescribed environmental
review process since the scarce resources DOE is committing to
these activities will be largely wasted if the final remediation
criteria, which are to be selected by all Tonawanda stakeholders,
necessitate a second segregation operation.

     We hope that NRC appreciates the importance we attach to these
issues.  Meaningful public participation, as prescribed by the
NEPA/CERCLA Tonawanda environmental review process, requires the
timely disclosure of information relevant to the process.  The
information we have requested above is pertinent to the Tonawanda
decisionmaking process.  We look forward to prompt and thorough
answers to all of our questions.


                              Sincerely,



                              James Rauch



Enclosures


cc:  R. Aldrich, NYSDOL
     B. Youngberg, NYSDEC

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