Residents Organized for Lewiston-Porter's Environment (ROLE)

P.O. Box 44

Lewiston, N.Y. 14092


                                             
Hazel O'Leary, Secretary                                  8-24-94
U.S. Department of Energy
1000 Independence Avenue NW                               
Washington, D.C.  20585

Dear Secretary O'Leary,                

Executive Summary

     This letter identifies serious deficiencies in the National
Environmental Policy Act (NEPA) review process conducted by the
Department of Energy (DOE) for two Western New York Formerly
Utilized Remedial Action Program (FUSRAP) sites: the Niagara Falls
Storage Site (NFSS) and the Tonawanda, N.Y. Site.  At NFSS,
exclusion of relevant issues, poor data quality, and the delayed
timing of DOE's review violated the intent of NEPA and prevented a
meaningful public review of DOE's proposed cleanup plan as required
by NEPA.  At Tonawanda, release of a significantly deficient
environmental impact statement package followed by suspension of
the process on 4-14-94 raise serious questions concerning DOE's
intentions at this site as well.

     In view of the improprieties discussed below, we make the
following recommendations.  First, the deficiencies in the NEPA
reviews need to be corrected by reopening the NEPA process and
conducting unprejudiced, thorough reviews for each site.  At NFSS,
this requires that the 8-27-86 Record of Decision (ROD) be
rescinded, and that the National Academy of Sciences subcommittee
reviewing this plan be restructured or disbanded.  Second, a much
longer waste management perspective must be adopted by DOE,
incorporating a timeframe commensurate with the residues' hazardous
life.  Third, the New York State Department of Environmental
Conservation's cleanup guidelines for soils contaminated with
radioactive materials, Technical Assistance Guidance Memorandum -
4003, must be followed at both sites and vicinity properties.
     

Introduction

     With regard to the Niagara Falls Storage Site (NFSS) and the
Tonawanda, N.Y. Site, we have participated in the environmental
review process at both of these sites.  One of us (J. Rauch)
thoroughly reviewed the Draft Environmental Impact Statement (DEIS)
documents for each of these sites and submitted extensive written
comments in each case.

     At both sites Manhattan Project radioactive residues have been
seriously neglected and mismanaged since they were dumped on the
ground in the 1940s and 1950s.  At both sites the forces of erosion
(wind and water) coupled with ineffective attempts at remediation
have resulted in the extensive environmental dispersal of
radioactive materials to soil, air and water.

     At NFSS the original residues volume of 10,000 cubic yards has
increased to over 255,000 cubic yards of residues/contaminated
soils.  This is a twenty-fivefold increase in contaminated volume
in a scant 40 years.  At Tonawanda, N.Y., a residue volume of 4,000
cubic yards has been allowed to contaminate over 350,000 cubic
yards of soils and sediments, almost a ninetyfold increase in
contaminated volume.  This does not include the unknown extent of
groundwater contamination resulting from 'deep' well injection of
an equally radioactive amount of liquid effluent.

     Recognizing that, in essence, effective residue management
means confining the residues to their original volume (or stabi-
lized volume) and isolating them from the environment for their
entire hazardous life, the first 40 years of management at these
sites have been a dismal failure, especially in relation to the
more than 500,000-year hazardous life of the residues.  Similarly,
recognizing that the most efficient (i.e. least cost) residue
management also results from maintaining the original volume intact
(not allowing it to increase) the first 40 years have been a dismal
fiscal failure as well.  Thus, the failure of DOE and its
predecessors to address this dispersal issue early (in the 1950s)
and effectively (through stringent cleanup and storage policies)
has allowed hundreds of thousands of additional cubic yards of
soils to become unnecessarily contaminated, and, consequently, has
greatly increased the cost and difficulty of long-term management.

     On the following pages we explain the improprieties in the
environmental review process at the NFSS and the Tonawanda, N.Y.
Site and present our conclusions.  In the following discussion
reference is made by number to the following relevant NEPA case
citations.

NEPA Case Citations
 
     1) A primary purpose of NEPA is to consider long range effects
and examine environmental consequences before there are
irreversible commitments of resources.  Chelsea Neighborhood
Associations v. U.S. Postal Service, D.C.N.Y. 1975, 389 F Supp.
1171.
     2) NEPA is intended to insure that federal administrative
agencies take into account environmental consequences of their
projects before they decide to undertake them.  Sansom Comm. v.
Lynn, D.C.Pa 1973, 366 F Supp. 1271.
     3) NEPA is more than an environmental full-disclosure law and
is intended to effect substantive changes in decision making.  The
intent of this law is to require agencies to consider and give
effect to the environmental goals set forth in the law, not just
file detailed impact studies which will fill governmental archives. 
Environmental Defense Fund, Inc. v. Corps of Engineers of U.S.
Army, C.A.Ark 1972, 470 F.2d 289.
     4) Consideration of environmental matters under this section
must be more than pro forma ritual and requires consideration of
action to avoid adverse consequences and full exercise of sub-
stantive discretion at every important, appropriate, and
non-duplicative stage of an agency's proceedings.  Calvert Cliffs
Coordinating Comm., Inc. v. U.S. Atomic Energy Commission, C.A.DC
1971, 449 F.2d 1109
     5) Environmental impact statements should be prepared at the
earliest time prior to implementation of proposed major federal
actions, so that alternative courses of action with less severe
environmental consequences can be considered.  Friends of the
Earth, Inc. v. Coleman  C.A.Cal 1975, 518 F.2d 323
     6) A federal agency must involve itself early and continuously
in environmental impact statements in considering its programs and
projects.  Massachusetts Air Pollution and Noise Abatement Comm. v.
Brinegar, C.A.Mass 1974, 499 F.2d 125    
     7) Normally, an environmental impact statement must be
prepared prior to the initial decision to commit resources. 
National Forest Preservation Group v. Butz, C.A.Mont 1973, 485 F.2d
408
     8) The basic thrust of this law is to provide assistance for
evaluating preparations for prospective federal actions in light of
their future effects upon the environment,  not to serve as a basis
for after-the-fact critical evaluation subsequent to substantial
completion of construction.  Richland Park Homeowners Association,
Inc. v. Pierce, C.A.Tex 1982, 677 F.2d 935

 
The Niagara Falls Storage Site

Transfer of Ownership of the Afrimet Residues

     The DEIS issued by DOE for NFSS excluded several relevant and
important issues from consideration by the public in the NEPA
review (see DEIS section G.3).  One such fundamental issue was the
politically expedient decision in June 1983 by Secretary Hodel to
transfer ownership of the Afrimet-Indussa residues from the Belgian
company to the United States in return for $8 million.  Even DOE
recognized this small sum to be insignificant in relation to its
own estimates of long-term residue management costs.  This transfer
was viewed by the Reagan administration as useful in persuading the
Belgians to station cruise missiles on their soil.  At the time,
DOE's response to J. Rauch's comment on this transfer was "DOE has
determined that settlement of the Afrimet leases was an action
that, in and of itself, will have a clearly insignificant impact on
the quality of the human environment and that no further NEPA
compliance is necessary." (RAUCH-1, page K-73, Final EIS)  In and
of itself?  This is a glaring example of a politically influenced
executive decision made either without an understanding of the
technical difficulties and virtually indefinite fiscal
responsibilities which were being assumed or, worse, a careless
disregard for such consequences (see NEPA case citations 1 and 2).

DOE 'Orders' Relevant to Management of Site Residues

     Another fundamental issue also excluded was review of DOE
'Orders' relevant to the management of site residues.  For example,
by issuing Order 5820.2 on 2-6-84, DOE classified the NFSS residues
as "wastes contaminated with naturally occurring radionuclides
[which] may be disposed at existing DOE low-level waste-disposal
sites, at new facilities developed according to the same criteria
specified for low-level waste, or at a disposal site established
under the Uranium Mill Tailings Radiation Control Act of 1978." 
This was done in spite of the fact that according to federal
Nuclear Regulatory Commission (NRC) regulations 10CFR61 (which
apply to the broad category of so-called low-level radioactive
waste or LLRW), the K-65 residues fell in the "greater-than-Class
C" category, and as such were unsuitable for shallow land burial. 
According to 10CFR61, the L-30 and L-50 residues are "Class C"
wastes.  DOE's response to commenters objecting to the exclusion of
this issue was to claim that 10CFR61 did not apply to the NFSS
materials (uranium and thorium by-products).   DOE chose instead to
apply the uranium mill tailings regulations, 40CFR192, even though
they were (and are) inadequate both in terms of the characteristics
of the NFSS residues and the NFSS site.  So, radioactive materials
of equal or greater hazard and hazardous life when compared with
10CFR61-regulated wastes (LLRW), have escaped even this catch-all
level of regulation.  Interestingly, DOE's recent presentation to
the National Academy of Sciences (NAS) entitled "Long-Term
Management of the K-65 Residues at the Niagara Falls Storage Site,
May 25, 1994" contains a table which lists uranium and thorium
by-product materials as being among the materials covered by
10CFR61.  In fact, were it legally applicable, New York's current
LLRW management law would prohibit the shallow land burial of all
NFSS residues (see NEPA case citations 2 and 3). 

Underestimation of Radioactivity

     The presentation to NAS also includes the revelation that the
NFSS residues contain 2080 curies of radium-226, more than twice
the 871 curies reported in the DEIS and upon which the entire EIS
review process (including the Record of Decision) was based. 
According to Site Manager Ron Kirk, the revised figure was
developed from a more recent analysis of the K-65 residues located
at the Fernald, Ohio FUSRAP Site.  In response to J. Rauch's
expression of concern that this inaccuracy had adversely affected
the validity of the review process, Mr. Kirk said that such things
"happen all the time."  We would expect that such significant
analysis errors do not happen all the time.  When they do happen
the scientific validity of the decision may be compromised.  It can
be shown that over 14 trillion cubic feet of water could be
contaminated to levels above the DOE drinking water standard of 5
pCi per liter by NFSS's 2080 curies of radium-226.  This is a
volume of water roughly equal to the entire volume of Lake Erie
(see NEPA case citation 4).

'Interim Remedial Actions' Improperly Excluded from Review

     The NEPA process conducted by DOE for the NFSS improperly
excluded the 'interim remedial actions' from public consideration. 
These actions, carried out from 1982 to 1986, resulted in the
current tumulus (landfill) at the site.  DOE maintained that these
'interim remedial actions' "would not markedly affect or
effectively preclude from further consideration the [DEIS] alter-
natives for long-term management of the K-65 residues," and further
that "having already studied and performed the majority of the
interim remedial actions at the site, DOE is now focusing on
long-term management of the NFSS wastes and residues because this
is the issue that is ripe for a decision at this time." (NYDH-2,
page K-51, FEIS)   Such statements are simply prevarications.  

     These are the facts:  DOE had prepared a document "Comparative
Analysis of Various Interim Handling Alternatives of K-65 Residues
at the Niagara Falls Storage Site, July 1983" thirteen months
before the draft EIS was released in August 1984.  Although this
document contained DOE's preferred alternative for managing the
K-65 residues (placement in Building 411 within the diked
containment, to be joined by the other residues and wastes in the
clay-capped tumulus being constructed during the 1982-1986 interim
remediation) it was not made a part of the EIS process and subject
to public review.  Instead, the draft EIS was delayed at least 13
months until after the interim work was well underway, and the
final EIS was delayed an additional 20 months, until April 1986,
by which time the tumulus was largely completed.  So, in the words
of the NYS Department of Health, quite clearly:

    DOE chose to transfer and stabilize the K-65 residues at
    NFSS on the basis of an internal evaluation report rather
    than including those operations in the DEIS.  The config-
    uration of the K-65 residues once the interim storage
    operation is complete severely affects the future consid-
    erations of disposal alternatives.  [NYDH-8, page K-56,
    FEIS]
    
In his 11-2-84 comments on the DEIS, NYSDOH's John Matuszek asked
the rhetorical question "was it [the preparation of the July 1983
document separately from the DEIS] a subterfuge to avoid full NEPA
review for the actions now in progress at NFSS?" (NYDH-2, page
K-50, FEIS)  There certainly would have been time had DOE so chosen
in 1981, to conduct a legitimate public review before the interim
remediation commenced.  All DOE actions up to the present time
demonstrate that DOE had a preferred alternative prior to
commencement of interim actions and acted to implement that
alternative while conducting a sham NEPA review process.  In
subsequent correspondence with DOE, NYSDOH complained that "DOE
fails to note that the State has objected each time to DOE's plans
for the interim remedial action, and that DOE has chosen to ignore
the state's protests to interim remedial storage" (NYDH-8, page
K-57, FEIS), and although New York clearly had (and has) a strong
scientific and legal case against DOE, unfortunately the Cuomo
administration thus far has failed to take action to protect the
interests of New Yorkers (see NEPA case citations 5, 6, 7 and 8). 

How Residues Became 'Wastes': The R-10 Example

     The primary focus of New York State has been DOE's avoidance
of public review in managing the K-65 residues.  But what about the
review process in relation to management of the other residues:
L-50, L-30, F-32, R-10?  In his comments of 9-19-84, J. Rauch
identified past neglect and mismanagement of the R-10 residues at
the site during the 1960s and a 1972 'remedial action' (RAUCH-3,
page K-72, FEIS).  These residues, which contain over 5 curies of
radium-226, had been dumped on the ground in what came to be known
as the "R-10 pile".  As a result of this past mismanagement which
had significantly increased the R-10 residue-contaminated volume,
the DEIS determined it to be "not practicable" to separate the R-10
residues from other wastes (in the north diked area), and DOE
removed them from the more hazardous residue category and placed
them in the 'waste' category for purposes of the EIS's residue
and/or 'waste' removal alternatives.  J. Rauch contended that these
earlier DOE actions were illustrative of an intentional
dilution/declassification approach to managing these residues.  His
comment was simply dismissed with a terse "opinion is noted."
(RAUCH-3, page K-73, FEIS)

     In supporting Alternative 4c (complete removal of all residues
from NFSS, long-term management of 'wastes' at NFSS), Congressman
John LaFalce also commented on the R-10 situation (LAFAL-2, page
K-26, FEIS).  He noted that the R-10 residues were located in a
particular stratum of the R-10 pile, and that owing to their higher
radium concentration, they should be removed along with the other
residues.  DOE responded:  
    
    At this point in time, it is difficult to physically define
    the R-10 residues.  Assuming that the volume is somewhere
    between 7,000 m3 (the original volume) and 45,000 m3 (the
    1980 R-10 pile volume), removal of the R-10 residues could
    cost an additional $2.9 to ... $37 million .... Shipment of
    the R-10 residues would increase transportation-related
    risks of injury and death by a factor of 2 to 5 over
    shipment of the other residues alone (shipment of
    18,000-56,000 m3 vs 11,000 m3).  These costs are probably
    underestimates because additional survey work would have to
    be done to locate and define the R-10 residues.  Erosion
    and previous activities on and around the pile were such
    that it is probable that a distinct layer of R-10 residues
    could not be located.  Excavation and control costs would
    also be higher if the R-10 residues were segregated from
    the rest of the wastes. [emphasis added]  [LAFAL-2, page
    K-27, FEIS]
    
What is DOE really saying here?  First, DOE acknowledges that past
mismanagement has increased the volume of contamination of these
residues by up to 7 times.  Then DOE points to this increased
volume (citing first, the additional costs of excavation,
transportation, and environmental isolation of this much-increased
contaminated volume at a site suitable for long-term storage, and
second, the increased risk of transportation-related injury
resulting from transporting this much larger volume of residues) as
the reason to keep these residues at NFSS, a very poor physical
site for long-term storage!  

     It is also worth noting DOE's response to Congressman La-
Falce's alternative suggestion of deep well burial of the R-10
residues at NFSS: "This option poses an additional problem in that
deeply buried R-10 residues would be below the water table."
(LAFAL-2, page K-27, FEIS)  By the time that response was made
public in the April 1986 FEIS, DOE had already placed the K-65
residues in the basement of Building 411 (the deepest part of the
tumulus), the lower portion of such residues being below the water
table (see NEPA case citations 1 and 2).

DOE's `Containment' at NFSS: Premeditated Environmental Dispersal 

     Concerning the NFSS's physical unsuitability for long-term
storage, the experience of only a few decades clearly shows the
difficulty of managing these residues at such a wet site and the
virtual impossibility of preventing their water-borne environmental
dispersal.  The seasonal water table fluctuates within a few feet
of the surface; the area experiences intense, excursive
precipitation events (not adequately accounted for by the Uniform
Soil Loss Equation employed in site integrity calculations); the
site lies within a 200-year flood plain of Lake Ontario, making it
subject to inundation hundreds of times during the hazardous life
of the residues (the hydraulic pressures generated during such
flood events could squeeze out the tumulus contents like jelly from
a doughnut).

     DOE's response to a NYSDEC comment that clay is the material
that will contain the residues is generally informative: 
    
    It is not stated that clay will contain the wastes.  There
    is a layer of clay in the existing interim cap (Alternative
    1, no action), and additional clay will be added if
    Alternative 2 is implemented.  This layer is expected to
    substantially reduce (but not eliminate) water infiltration
    down into the buried wastes and residues (Section 4.2.2)
    and radon gas emissions (Section 4.1.2).  The existing
    clayey soils beneath the containment area are expected to
    retard (but not eliminate) migration of radionuclides and
    other chemicals from the wastes and residues (Sections
    4.2.2 and 4.3). [NYDEC-15, page K-45, FEIS]    
    
What this means is the clay will only slow the rate of radioactive
contamination of still more soils (and water).  The increase in
contaminated volume is a gradual, ongoing process - it does not
occur all at once when the facility is deemed to have failed,
whether 50 or 200 or more years from now.  [The data presented in
Table 3.4 of the DEIS (and duplicated in the FEIS) provides a clear
illustration of this point.  For the purpose of analyzing the EIS's
`waste' removal alternatives, an estimate is given of the volume of
the 'interim' clay containment which will have become sufficiently
contaminated to require removal as 'waste' during the time interval
before removal is accomplished.  This estimated volume of
contaminated containment structure is 29,000 cubic yards - more
than double the 1985 residue volume. According to the table's
footnote 6, this estimate is based on the assumption that "any
decision to remove such materials would be within the next few
years such that radionuclides from contaminated materials stored
within the diked areas would not have sufficient time to migrate
through the clay dikes more than 0.6 m (2 ft)." (emphasis added) 
(Again, these interim actions, although projected to result in an
additional 29,000 cubic yards of 'waste' in a few short years,
were, nevertheless, excluded from review in the EIS process.  It is
now 8 years later.  What volume of the 'containment' would now be
required to be removed under the 'waste' removal alternatives?)]  

     Therefore, DOE's plan to keep the residues at NFSS is contrary
to the fundamental principle of efficient management of such
long-lived materials, i.e. keep the original volume intact (do not
let it increase).  It also means that if the residues are not
removed now, their gradual dispersal into a larger volume of
contaminated soil (and water) will further increase the cost and
difficulty of their in situ management or removal at a future date. 
As discussed, DOE has already used the increase in contaminated
volume of the R-10 material to argue against its removal.   

     The existing native clayey soils that make up the "floor" of
the tumulus consist of brown and grey clays.  Based on limited site
characterization, the grey clay is thought to be more homogeneous
(uniform) and to be a better barrier than the brown clay.  Sand
lenses and other discontinuities are known to exist in the brown
clay.  Should hydraulic connections through such discontinuities
exist or develop, which is likely based on site observations during
interim actions, more rapid environmental dispersal of residues
than expected will occur.  Such was the experience in an unforeseen
incident at the West Valley nuclear site in which a
plutonium-bearing kerosene solvent leaked from corroded steel tanks
and rapidly migrated in "fingers" through discontinuities in the
weathered glacial till, escaping detection by the monitoring well
system.  At NFSS, the existing, and in all likelihood any expanded,
monitoring system is also unlikely to detect such non-plume
migration.  In this connection it is worth noting that "Clay
suitable for the 1-m (3-ft) clay layer in the interim cap
(Alternative 1, no action) did not exist at NFSS and had to be
obtained from offsite borrow areas." (NYDEC-7, page K-41, FEIS)

Site Maintenance Costs: A Measure of Site Physical Unsuitability

     An additional measure of the the physical unsuitability of the
NFSS site is readily apparent from DOE's recent estimate of annual
maintenance costs for the site: one-half million dollars.  (This
estimate, given in DOE's 5-25-94 presentation to NAS, is $415,000
more than the $85,000 estimate given in both the DEIS and the
FEIS.)  This figure includes repairs to the clay cap, maintaining
a grass cover on the cap (includes removing trees and other
deep-rooted plants), and environmental monitoring.  It does not
include the truly enormous costs which will be incurred at some
not-so-distant time in the future when the progressively leaking
facility has contaminated a much greater volume of the environment. 
From data presented in Table F.1 for Alternative 4a, it is obvious
that in less than 60 years, a negligible period of time in relation
to the duration of the residues' hazardous life, a sum of money
will have been spent for NFSS site maintenance sufficient to have
paid for the timely relocation of the residues to a suitable
long-term storage environment, such as the Nevada Test Site.  At
such a site, long-term maintenance costs are expected to be orders
of magnitude less and involve principally environmental monitoring
alone (see NEPA case citations 1 and 2).  

Need for a Much Longer Management Perspective

     Citing inflated transportation costs and transportation risks,
DOE has resisted relocating these relatively high-volume residues
from physically unsuitable sites such as NFSS to much more
physically suitable arid, unpopulated locations.  In relation to
the hazardous life of these residues, such a stance is very
short-sighted.  Historically, DOE's nuclear waste management
policies have been characterized by neglect and denial of serious
environmental contamination and associated health problems.  More
recently, DOE has begun to acknowledge the daunting proportions of
the required complex-wide cleanup.  However, facing very large
short-term costs, DOE has been reluctant to pursue in a scientif-
ically rigorous manner the best, in terms of both long-term
cost-effectiveness and waste isolation effectiveness, waste
management strategies.

     In order to safeguard the future economic and environmental
interests of the country as a whole, DOE needs to quickly adjust
its nuclear waste management policies to incorporate a much longer
view.  Such a change must accept the reality of the  hazardous
lives of the residues being managed and the physical unsuitability
of sites such as NFSS in relation to this timeline (see NEPA case
citation 3).

     Inability to prevent erosion and environmental dispersal of
the residues by water, and proximity to human population are the
major factors making early relocation of the residues essential. 
Relocation of the residues to an arid area may enable the emplaced
volume to be maintained virtually intact for tens of thousands of
years, limited only by future climatic and geologic changes.  For
example, the NFSS EIS indicates it would take 35,000 years for the
residues to reach the water table in the Hanford, Washington
relocation alternative.  Placement of the residues at a location in
the arid Southwest (the Nevada Test Site, for example) may
completely eliminate the problem of water-borne dispersal,
evaporation of precipitation in this warm area preventing moisture
from reaching the residues.  Wind dispersal in such an arid
location can be avoided by residue placement in areas subject to
deposition as opposed to removal (so-called depositional valley
locations).  Radon emanation can be controlled by placing the
residues below grade and covering them with a sufficiently thick
layer of fine soils.  It may be advisable to further stabilize the
residues by vitrification or other means.  Even storage at an arid
site such as the Nevada Test Site should not be regarded as
"permanent disposal," in that distant geologic and climatic changes
may necessitate further active management prior to the end of the
residues' hazardous life.

Public Participation: Where Is the Public?

     Although your recent declassification of many previously
secret documents gives us hope that a top-down change in approach
is being fostered throughout the Department, recent developments
locally smack of business as usual.  Despite being significant
public participants in the process at NFSS, we and other interested
members of the public were not notified by DOE of the 5-2-94
presentation by DOE's Bill Seay to the National Academy of Sciences
review subcommittee at the Grand Island, N.Y. Holiday Inn (see
Niagara Gazette, "Storage site meeting draws residents' fire" and
"Meeting time is criticized," 5-2-94).  Only one of us (T.
Henderson) was notified of the 7-25-94 meeting with Admiral Guimond
and other DOE officials at DOE's Tonawanda, N.Y. office (in this
case the notice came from Congressman LaFalce's office).  Once
again the public was ignored.  If DOE is trying to establish with
the public a credible policy of open review, as claimed by Admiral
Guimond during his initial NFSS availability session visit on
4-21-94, then, logically, general media notice should be given, and
the entire NFSS mailing list should be notified, of all public
meetings related to NFSS decision making. 

     The foregoing discussion details some of our concerns re-
garding DOE's (and predecessors') operating history at NFSS.  We
firmly believe that the environmental review process at NFSS was
seriously subverted, and that the outcome to date reflects that
subversion.


The Tonawanda, N.Y. Site

EIS Deficiencies

     The environmental review package (RI-FS/EIS) for the Tona-
wanda, N.Y. Site contains several significant deficiencies (see
comments by J. Rauch, 2-10-94).  For example, over 50% of Manhattan
Project-related environmental contamination (27.3 curies of uranium
and radium) at the four properties which make up the site consists
of radioactive liquid effluents which were discharged to surface
water (via storm and sanitary sewers) and groundwater (by 'deep'
[130 ft to 150 ft] well injection) by the Linde Air Products
Division of Union Carbide.  This company decided to inject 55
million gallons of radioactive liquid effluent containing 5.5
curies of radium-226 into the bedrock aquifer below their refinery
facility because their legal department thought "it would be
extremely difficult to determine the course of subterranean
streams, and, therefore, no one could fix the responsibility for
contamination of such streams."  Linde's legal department preferred
the injection well disposal route to the surface routes because
surface disposal "is objectionable because of probable future
complications in the event of claims of contamination against us." 
Despite this, Linde later used the surface disposal routes as well. 
Linde still occupies the site, however they have changed their name
to Praxair, Inc.  Although the Army expressed reservations at the
injection well plan, saying, "We would also like some assurance
that the government will not under the terms of the contract be
required at some later date to remove any effluent which may remain
in the well or be required to restore the well to its original
condition," it apparently acquiesced to Linde's use of both
disposal routes.  

 Possible Private Liability

     The above quotations are from correspondence contained in "The
Federal Connection: A History of U.S. Military Involvement in the
Toxic Contamination of Love Canal and the Niagara Frontier Region,
1-29-81," a report by the New York State Assembly Task Force on
Toxic Substances.  This report made several recommendations
including a request that the state attorney general determine if
New York State should bring legal action against the federal
government.  Curiously, the EIS package for the Tonawanda, N.Y.
Site does not define the extent of groundwater contamination
resulting from the deep well injection nor does it contain any
remediation proposal for the injected effluent as required by NEPA
(see J. Rauch's comments 29 and 50).  The same is true for the
surface effluents, including sewer plant sludge taken to
Tonawanda's municipal landfill (see J. Rauch's comments 33,34,39,
and 42).  When does the federal government intend to meet the
requirements of NEPA in this connection?  Does the federal gov-
ernment have legal recourse (under CERCLA or other statute) to
pursue Linde (Praxair) for a portion of the costs for remediation
of contamination associated with these discharge routes?

NEPA Process Suspended?

     Perhaps more fundamental questions need to be asked in view of
DOE's 4-14-94 decision, in the words of Congressman John LaFalce
(Buffalo News, "Tonawanda waste site plans shelved," 4-15-94), "to
take the proposed on-site remediation plan for the Tonawanda wastes
totally off the table.  This reopening is total, and DOE has
promised to solicit broad community input in examining all
alternatives."  Is this action a  suspension of the NEPA review
process (RI-BRA-FS-PP/EIS) at the Tonawanda, N.Y. Site?  What is
the authority and where is the documentation for this action?  Is
the public's legal right of NEPA review in this matter also
suspended?  Is the  draft timetable and work plan announced on
7-25-94 the first step in a completely new EIS proceeding?

     These questions are particularly important because DOE
Principal Deputy Assistant Secretary for Environmental Management
Richard Guimond was reported during a 7-25-94 meeting with local
officials as saying that his previous visit to the area on April 20
and 21, 1994 "made it clear that the DOE's five-year study had
considered public safety and environmental issues in the Manhattan
Project cleanup but had fallen short on the economic development
issue" (Buffalo News, "Doubts over N-dump stall waterfront plans,"
7-26-94).  If Admiral Guimond's statements at this meeting imply he
believes the public's perception to be that the EIS/Proposed Plan
does not adequately address waterfront development plans but does
satisfactorily address public health and environmental issues
related to the Proposed Plan, then he is seriously in error. 
Perhaps he has not read the written comments of J. Rauch and 76
others, most of which focus on public health and environmental
factors in opposing the Proposed Plan.  In shelving the Proposed
Plan, is DOE once again trying to avoid a full NEPA review of the
substantive comments raised by the public? 

CANiT Is Not the Only Interested Public

     The newspaper article is quoted because, having not been
notified of the meeting, J. Rauch and many of the other commenters
were not present.  According to Site Manager Ron Kirk, due to
limited seating capacity at DOE's Tonawanda office the decision was
made that DOE's mailing list be "culled" to provide a cross-section
of the public at the meeting.  Why wasn't the meeting held at a
local school auditorium, as the December 1993 EIS public hearing
had been?  Again according to Ron Kirk, because Congressman LaFalce
had requested the meeting be at the DOE Tonawanda office.  Despite
Admiral Guimond's solicitation of public input at the 4-20-94
meeting (for which public notice was given) and his promise to
provide the opportunity for full involvement of the public, DOE has
now apparently reverted to its former practice of regarding the
public as consisting of CANiT (Coalition Against Nuclear Materials
in Tonawanda, a group of area politicians and government officials)
and a select few others.

     At the 7-25-94 meeting CANiT Chairman (and Commissioner of
Erie County Department of Environment and Planning [DEP]) Richard
Tobe requested an additional $50,000 grant from DOE to accomplish
technical review of any further DOE proposals.  This move was
opposed by Alex Cukan (Sierra Club Niagara Group Chairwoman) on the
grounds that DEP has received more than its share of TAG grants to
the exclusion of technically competent local environmental groups. 
DEP has already received two DOE grants related to the Tonawanda
site.  The purpose of the first grant, Technical Services Contract
#14501-191-SC-312 OR from DOE's prime contractor Bechtel National,
Inc. effective 10-1-90 through 9-30-98 in the amount of $200,000,
is to "facilitate public participation in the environmental review
process for FUSRAP sites in Erie Co., New York."  Over the first
three years of the contract (through 10-12-93) $60,810 has been
paid to DEP with very little  public participation having been
generated.  The quarterly bills submitted by DEP to DOE contain
little or no documentation of what was done, for the most part
simply listing the date, number of hours billed, and the DEP
employee.  DEP apparently has become accustomed to receiving this
type of payroll support.  The second contract, Technical Services
Contract #14501-TSC-3737 OR effective 1-1-92 through 12-31-93 in
the amount of $25,000, was to supply an 'independent' technical
review of the Tonawanda RI-BRA-FS-PP package.  However, the
contract specified that Bechtel was to choose the reviewer. 
Bechtel selected Martin Haas, a full time employee of West Valley
Nuclear Services (a Westinghouse subsidiary which is the DOE
contractor at the West Valley Demonstration Project) as the
technical reviewer.  It is questionable whether an employee of a
DOE contractor can provide independent review of any DOE action.

     Thus, at Tonawanda, as at NFSS, the opportunities for mean-
ingful public participation in the environmental review process
have been seriously limited by DOE errors of commission and
omission.  It is little wonder the public tends to become alienated
in the face of such a renegade process and why, as a consequence,
the errors of the past continue to be perpetuated.  This situation
must be corrected.

Conclusion

     First, in view of the improprieties in the environmental
review process for NFSS discussed above, the most appropriate next
step in determining the best long-term management plan for the NFSS
materials is to rescind the 8-27-86 Record of Decison and reopen
the NEPA public review process.

     Second, the NAS subcommittee reviewing the final plan at NFSS
does not possess the necessary range of technical expertise and is
not sufficiently independent of DOE to be a credible arbiter of
this plan's long-term efficacy.  If the NEPA review process is
reopened, the subcommittee's review should be abolished.  If the
subcommittee's review is continued, the panel should be improved by
including local geologists from the geology departments at the
State University of New York at Buffalo and the State University
College at Fredonia, and independent physicists such as Marvin
Resnikoff.

     Third, it is our informed opinion that an unprejudiced,
thorough NEPA review of the physical and social setting at the
Tonawanda, N.Y. Site will find that, as at Lewiston, N.Y., this
site is unsuitable for the safe and efficient long-term management
of these uranium ore processing wastes.  Of course, such a review
must address the deficiencies of the EIS package raised by the
commenters.

     Fourth, it is our understanding, confirmed by Site Manager Ron
Kirk at the 4-21-94 availability session, that NYSDEC's Technical
Assistance Guidance Memorandum - 4003, 9-14-93, establishing
cleanup guidelines for soils contaminated with radioactive
materials, will be applied at both sites including vicinity
properties.  This guidance requires that the post-remediation dose
to the maximally exposed member of the public be as low as
reasonably achievable and less than 10 millirems per year above
background.  Since DOE's soil concentration criteria currently are
designed to limit dose to no greater than 100 millirems per year
above background, what are the additional soil volumes which will
need to be dealt with at each site and vicinity properties (above
those given in the EIS documents) to achieve NYSDEC's TAGM - 4003? 


                           Sincerely,
                      

                                    
                           Timothy Henderson
                           Residents Organized for Lewiston-
                             Porter's Environment (ROLE)



                           James Rauch




cc: Thomas P. Grumbly
    John LaFalce
    Paul Merges
    Karim Rimawi
    G. Oliver Koppell
    Richard Tobe
    Hon. Bud Wildman
    Kathy Millian
    Irene Kock
    Joan Gipp
    Diane Heminway
    Bernard Swetts
    Mary Lou Frost
    Laurence Beahan
    John Bunz
    George Melrose
    John C. Krenitsky
    Marshall A. Staunton
    Marcia VanDewark
    Ralph Krieger


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