Mr. James Owendoff
Deputy Assistant Secretary for
Environmental Restoration
U.S. Department of Energy
1000 Independence Ave
Washington, D.C.  20585                        September 28, 1996

Dear Mr. Owendoff:

     As you know, FACTS is a community coalition of stakeholders
participating in the environmental review process that is required
to support a final remediation plan decision for the Tonawanda, NY
FUSRAP Site.  We are composed of and represent health,
environmental, labor, and academic interests in the Tonawanda

     Since the "suspension" in April 1994 of the integrated
NEPA/CERCLA environmental impact statement (EIS) review process
(specified by the April 11, 1988 Notice of Intent), completion of
said process with a Record of Decision (ROD) being required by law
before any "final" remediation of the Tonawanda Site can occur,
officials of the Department of Energy (DOE) have made, and
frequently reaffirmed, two commitments to all Tonawanda

     1) "that the new decision process will be open and that the
Department will give every opportunity to those who wish to
participate." (Richard Guimond, Principal Deputy Assistant
Secretary for Environmental Management, December 7, 1994), and

     2) that the final cleanup plan (i.e. ROD) implemented by DOE
must have the approval of the Tonawanda stakeholder community
(Guimond, former Assistant Secretary for Environmental Management
Thomas Grumbly, Site Manager Ronald Kirk, and others, on numerous

     The purposes of this letter are:

1) to identify the major unresolved remediation issues,

2) to document the occurrence of a serious violation of the first

3) to determine the current status of the soil pile and material
from the demolition of Building 38 as a result of the Linde/Praxair
"interim" actions, and
4) to clearly outline those actions which will violate the second
commitment and the prescribed NEPA/CERCLA EIS review process.

     In August 1995 Congressman John LaFalce announced that DOE
would perform "interim" cleanup actions at the Linde/Praxair
property.  Prior to this announcement, DOE had not held any public
meetings of all interested Tonawanda stakeholders where the
appropriate order for cleanup of the several properties making up
the Tonawanda Site was discussed and agreed upon.

     We questioned the wisdom and legality of these "interim"
actions since agreement between the Tonawanda stakeholder community
and DOE on major remediation issues (see below) has not been
reached.  Agreement on these issues is required, not only by DOE's
commitments to the Tonawanda stakeholder community, but also by the
NEPA/CERCLA EIS review process which must culminate in a ROD
prescribing the selected final cleanup plan before any
final remediation actions can be implemented.  We pointed this out
in an August 7, 1995 press release (a copy was sent to Thomas
Grumbly) and at an October 23, 1995 meeting with Thomas Grumbly
arranged by Congressman LaFalce (see FACTS October 24, 1995 letter
to Thomas Grumbly). At that meeting we also questioned the
selection of the Linde/Praxair property for "interim" cleanup, in
view of an expected increase in FUSRAP radon gas release from the
contaminated Niagara Landfill (Seaway property) following the
upcoming start-up of a Browning Ferris Industries active gas
extraction/cogenerator project at that property (which is now
operating despite intense community opposition).  We later pointed
out that an April 1994 DOE planning document called for cleanup of
the most heavily contaminated Ashland 1 property first, by the end
of fiscal year (FY) 1995, with Ashland 2 to follow in FY 1996 and
the Seaway and Linde properties scheduled last, for FY 1997 through
FY 2000 (see pp 5-6, January 1996 FACTS Newsletter).

The major unresolved remediation issues are:
     1) the validity of DOE assumptions that severe restrictions on
land use (e.g., limited-exposure industrial and open space uses)
can be placed in the deeds to these private properties* and that
* Placement of deed restrictions in effect gives legal substance to
a taking of property value that, a) started when the Haist property
(Ashland 1) was improperly sold, i.e. without disclosing and
licensing the 8,000 tons of Manhattan Project wastes present, to
Ashland Oil Company at full market value ($56,000) in 1960 after
DOE's predecessor agency, the Atomic Energy Commission (AEC) had
determined that the cost of decontaminating the property exceeded
its market value ("Historical Summary and Summary of the DOE
Authority Review for the Seaway Industrial Park, Tonawanda, New
York") [see note updating "Authority Review for the Seaway
Industrial Park" pages for the real story on this transfer]
and b) continued in subsequent years, as both federal and state
regulatory authorities allowed these nuclear wastes to be spread to
at least 3 other properties, even as recently as 1982, two
years after the Linde property had been designated for cleanup
by DOE.

these restrictions can be expected to be upheld indefinitely (see
10 CFR Part 61.59), thereby keeping the level of radiation doses
received by future site users below a yet-to-be-agreed-upon limit;

     2) the determination of this limit on residual radiation doses
following cleanup which may be delivered to future users of the
site properties, i.e. whether the "to be considered" (TBC) New York
State Department of Environmental Conservation (NYSDEC) TAGM-4003
radiation dose limit (10 millirems per year above background) or
the ten-times less protective (100 millirems per year above
background) federal guideline (DOE Order 5400.5) will be used to
derive the contaminant cleanup levels; and

     3) selection of the best long-term storage site for the
removed wastes (see FACTS' June 2, 1996 letter to Vice President
Gore and FACTS' Comments on Colonie Site EE/CA, October 20, 1995).

First Commitment Broken
     On August 6, 1996 you and other DOE officials announced a
final cleanup plan for the Tonawanda Site during a meeting held by
Congressman John LaFalce (de facto leader of CANiT [Coalition
Against Nuclear materials in Tonawanda], a small group of area
politicians) at his Buffalo office.  CANiT and FACTS are the two
community stakeholder groups identified by DOE (see Table 1.2,
"Stakeholders at the Tonawanda Site", in "Management Action Process
Document for the Tonawanda, New York FUSRAP Site, May 1996").
FACTS was not informed of this meeting and, therefore, had no
representation at the meeting.  In addition, other stakeholders
identified in this table have told us they were not notified of
this meeting.  However, a few members of CANiT were present.

     Significantly, this announcement follows a long period of time
during which DOE has not convened any public meetings of
all recognized stakeholders for the purpose of discussing
the outstanding issues and developing a final remediation plan that
is mutually acceptable to DOE and all participating Tonawanda
stakeholders.  In fact, there have been no such inclusive
public meetings since the last working session was held by
DOE on February 28, 1994.  Since then, we and other participating
stakeholders have repeatedly expressed displeasure with DOE's
evident unwillingness to respond to information requests and to
engage in meaningful, direct dialog (see July 19, 1996 letter [the
latest of several] to Congressman John LaFalce from George B.
Melrose, Chair Tonawanda Commission for Conservation of the
Environment; FACTS' October 24, 1995 letter to Thomas Grumbly;
FACTS' September 27, 1995 letter to Cynthia Kelly, Director of
DOE's Office of Public Accountability; FACTS' September 10, 1995
letter to DOE Secretary O'Leary; and FACTS' June 2, 1996 letter to
Vice President Albert Gore; among others).

     Why did DOE not inform all stakeholders of the August 6
meeting?  The coalition of community stakeholder interests we
represent views this latest development as a serious violation of
DOE's commitment to involve all stakeholders in the remedy
selection process.

     In addition, any action taken to advance the
announced plan, as we currently understand it**, without first
resolving, in an open fashion with the participation of all
interested stakeholders including FACTS, the outstanding
remediation issues identified above, will be viewed as a violation
of both DOE's second commitment and the prescribed NEPA/CERCLA EIS
review process.
** According to the Buffalo News, the plan calls for removal of
only 115,200 cubic yards of the 366,000 cubic yards of waste
previously identified in the FS/PP-EIS documents as being above the
DOE-proposed cleanup levels for unrestricted re-use of these
private properties.  This reduced cleanup volume is apparently
based on:
1) cleaning up only three of the four properties; the 117,000 cubic
yards of waste improperly dumped in the Niagara Landfill property
are to be left there, and
2) limited cleanup of the remaining three properties to allow only
specified restricted re-uses of these private properties, and then,
only under a federal residual radiation exposure guideline that is
ten-times less protective than New York's radiation cleanup
guideline, NYSDEC's TAGM-4003.

     The August 6 joint announcement by DOE/CANiT leadership
strongly suggests that secret meetings are taking place between the
DOE and the few active members of CANiT.  Is DOE looking for a
political solution or does DOE intend to restore the promised open
discussion process that includes all interested stakeholders who
wish to contribute to a reasoned resolution of the remaining major
remediation issues?

Status of Linde/Praxair EE/CA "interim" actions?
     Site Manager Ron Kirk was present at the June 18, 1996 public
meeting of CANiT.  He described recent developments in continued
"interim" actions at the Linde/Praxair property.  He indicated that
Building 38 was being demolished and the soil pile was being
radiologically sampled; that [contrary to information presented in
the EE/CA] results of that sampling showed most of the soil to have
contaminant concentrations below the contaminant cleanup levels
proposed by DOE for final remediation; that this pile would be
removed in sections to Building 30 and separated into portions that
are above the DOE-proposed contaminant cleanup levels, to be held
for shipment to the Envirocare of Utah, Inc. disposal facility, and
so-called "clean" portions, to be used as backfill on the property.

     Activities such as backfilling, grading and re-grading are
actions that will dilute the concentration of contaminants in so-
called "clean" materials if mixing of more concentrated onsite
materials with lower concentration onsite materials or with truly
clean imported materials occurs.  Since agreement with the
stakeholder community has not been reached regarding appropriate
final contaminant cleanup levels and such agreement recorded in the
form of a ROD, any disposition of so-called "clean" material that
results in a dilution of contaminant concentrations (which we will
view as irreversible) will be a violation of the prescribed
NEPA/CERCLA EIS review process.

     Has any such disposition yet been made of any so-called
"clean" material, either from the soil pile or the demolition of
Building 38?  Does DOE intend to hold so-called "clean" materials
segregated in the course of any "interim" actions pending
resolution of the major outstanding remediation issues identified
by us above, and by NYSDEC in its February 23, 1996 comments on the
EE/CA (page A-14 of the corresponding DOE Responsiveness Summary,
May 1996)?

     We look forward to a prompt response from DOE to our
questions.  We need to see both DOE's promised stakeholder
participation process and the Tonawanda Site NEPA/CERCLA EIS review
process move forward properly, but without undue delay.


                                   James Rauch

cc:  C. Borgstrom, DOE
     J. Bartlett, NRC
     R. Hargrove, EPA
     N. Nosenchuck, NYSDEC
     W. Helmer, NYS AGO
     J. LaFalce, U.S. House of Rep.
     D. Moynihan, U.S. Senate
     A. D'Amato, U.S. Senate