October 11, 2009

Buffalo District, US Army Corps of Engineers
Att: William E. Butler III
1776 Niagara Street
Buffalo, NY 14207-3199

Subject: F.A.C.T.S. Comments on the Army Corps of Engineers' "Scoping Information, Building 401 Demolition" at the Niagara Falls Storage Site, USACE, September 2009

by James Rauch
FACTS (For A Clean Tonawanda Site), Inc

The original public review process for the cleanup of the Niagara Falls Storage Site (NFSS) was conducted in the 1980s as a NEPA EIS. That process was fundamentally flawed in that the site owner, the U.S. Department of Energy (DOE), used "interim actions" to implement its preferred alternative -- permanent waste storage in an onsite "interim" tumulus -- prior to the completion of the environmental review process, i.e. release of a Record of Decision (ROD). The details of this improper public review process can be found in an August 24, 1994 ROLE letter to former DOE Secretary Hazel O'Leary, incorporated into these comments by reference.

The "Interim Waste Containment Structure" (IWCS) constructed in the mid-80s does not meet the technical criteria requirements of 10 CFR 40 Appendix A and is not the fully "engineered" tumulus implied in Section 3.1. While the bermed sides and the cap of the Niagara Falls Storage Site's "Interim Waste Containment Structure" (i.e. landfill, aka "cell" or "tumulus") are constructed of uniform, engineered clay, the bottom of the cell is simply native soils and does not meet the federal 10 CFR Part 40 Appendix A site and design performance standards for a long-term disposal landfill contained in the Technical Criteria section of 10CFR40 App. A, both incorporated by reference. These native, largely clay soils are known to have porous discontinuities, such as sand lenses, through which contaminated groundwater is able to move much more quickly.

This scoping document is seriously deficient. It fails to provide citation(s) to the authority under which it is being conducted, or a description and timeline for the various stages of this action's public review process. No description is given as to how this action continues or amends the original NEPA sitewide public review process for cleanup of the full NFSS. This should be corrected prior to completion of this scoping.

It appears that the USACE is attempting to initiate an improper piecemeal "turnkey" approach at the NFSS in offering this proposed action: a contractor (chosen by USACE through a publicly unreviewed RFP?) is to prepare a "Demolition Plan," implement that plan, and conduct a post-remediation radiological survey. The only reason given for the proposed action is that the building is a "local hazard," the removal of which would "allow access for further remediation to potentially contaminated features such as the sumps and drains, and the buildings [sic] concrete slab." Apparently it is assumed that these features are contaminated -- that will be determined by the contractor who may then decontaminate the slab, etc., but leave the "surrounding soil areas with elevated radiological levels." No data specifically identifying the contaminants present and their concentration levels has been collected or presented in this document to the public by USACE. This does not satisfy NEPA or CERCLA public review requirements.

Any cleanup of soils and structures at the NFSS should meet the most stringent of the following applicable cleanup guidelines:

Soils: Option 1 of the Nuclear Regulatory Commission's 1981 "Branch Technical Position on Disposal or Onsite Storage of Thorium or Uranium Wastes From Past Operations" and NYS DEC's DSHM-RAD-05-01 (formerly TAGM-4003);

Structures and surfaces: NRC Regulatory Guide 1.86, NYS Code Rule 38 including Table 5, NYS DOH Part 16 Appendix A Table 7 and NYS DOH Radiation Guide 10.10.

Neither the NRC's 10 CFR 20 Subpart E (aka the "License Termination Rule" or "LTR") nor the Uranium Recovery Facilities Rule are applicable to the cleanup of FUSRAP sites. The NRC rule establishing radiological criteria for decommissioning, the License Termination Rule (LTR) [62 FR 39058-39092], specifically excludes the FUSRAP sites' uranium mill tailings. A subsequent Uranium Recovery Facilities Rule also is not applicable to these wastes, see FACTS' letter to former NRC Chairman Jackson, incorporated by reference. Option 1 of NRC's 1981 Branch Technical Position (BTP), which has been applied at many DOE SDMP and NRC-regulated sites around the nation, and NYS DEC's DSHM-RAD-05-01 are the CERCLA "relevant and appropriate" criteria for cleanup of FUSRAP sites that may be subject to intensive re-use in the future. This assumption re re-use at the NFSS logically follows from the fact that the IWCS must be exhumed because it does not meet the applicable 10 CFR 40 Appendix A technical criteria. (USACE itself has predicted that the IWCS will leak within 160 years.) Exhumation of the IWCS and site soil cleanup to the NRC BTP Option 1 criteria will properly enable transfer of ownership from DOE and intensive private or public re-use of the 191 acre site.