F.A.C.T.S. is a non-governmental, not-for-profit, public interest group dedicated to the safe and proper cleanup of radioactive waste at the Formerly Utilized Sites Remedial Action Program (FUSRAP) Site in Tonawanda, New York. The properties comprising the Site were contaminated with radioactive wastes from the processing of uranium ores for the world's first atomic bombs by the Linde Air Products Division of Union Carbide (now Praxair) under contract with the Manhattan Engineer District and the Atomic Energy Commission (AEC), predecessor agencies of the U.S. Department of Energy (DOE). The properties were contaminated with thousands of tons and millions of gallons of Manhattan Project and early "Cold War" radioactive wastes.

In 1988, and until the FUSRAP program was transferred to the U.S. Army Corps of Engineers (USACE) in October, 1997, DOE committed to full public review of the remedy selection process for the FUSRAP Tonawanda under the National Environmental Policy Act (NEPA). The decision to proceed under NEPA was made because the cleanup was recognized as a major federal action which would have significant impacts on the environment, and NEPA provides for the involvement of the public and other government agencies, with either jurisdiction or expertise, in the decision-making process. F.A.C.T.S. was recognized by DOE as a community coalition stakeholder in this review process and extensively commented upon the NEPA documents generated during the review process.

F.A.C.T.S.' main contentions are that the U.S. Nuclear Regulatory Commission (NRC) has jurisdiction (under the Atomic Energy Act) over, and expertise with respect to, the radioactive material at the Tonawanda Site. NRC standards for the cleanup of radioactive wastes are much more protective of human health and the environment than the standards that have been identified as applicable, first by the DOE, and then by the Corps. The failure of the Corps to consider these standards or seek comment from the NRC is a violation of NEPA. NEPA also allows a stakeholder to go to federal court to enforce its provisions.

After ten years of representing to the public that the selection of the remedial actions at the FUSRAP Tonawanda Site would be subject to environmental review under NEPA, DOE and the Corps decided to perform the cleanup exclusively under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) which contains a provision that prohibits the federal courts from hearing a challenge to a selected cleanup until after the cleanup is complete. F.A.C.T.S. believes that the Corps and the DOE made this decision in order to avoid the public review and comment procedures, and NRC involvement, required by NEPA.

Therefore, on June 2, 1998, F.A.C.T.S. filed a lawsuit in federal court seeking a declaration by the Court that the NRC has regulatory jurisdiction under the Atomic Energy Act over the radioactive wastes at the FUSRAP Tonawanda Site and an injunction preventing the Corps from proceeding with the remedy it selected in violation of NEPA.

Citing the CERCLA section 113(h) prohibition, Judge Elfvin eventually dismissed the case on June 20, 2000.

[Adaptation of a summary written by Francis C. Amendola, F.A.C.T.S.' Attorney for this case.]

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