NOTE : This letter was delivered by USPS Certified Mail. There was no reply. In March this letter was sent via the email service on the Governor's website. The only reply to date has been this automated acknowledgement of receipt.





January 10, 2012



Dear Governor Cuomo:

The Department of Environmental Conservation ("DEC") has not responded to my emailed letter of December 13, 2011 (copy enclosed) requesting information pertinent to the public review process for the remediation of the federal Department of Energy's ("DOE") Niagara Falls Storage Site ("NFSS"). I seek your assistance to secure the cooperation of the DEC to respond to my letter and to acknowledge New York State's responsibilities in this matter.

The final waste disposal decision for the federally-owned radioactive wastes at the NFSS has been in the hands of the Army Corps of Engineers ("ACE") since 1997 when Congress transferred the Formerly Utilized Sites Remedial Action Program ("FUSRAP") from the Atomic Energy Act-authorized DOE to the ACE, which is not an AEA-authorized agency, and directed ACE to utilize the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") as its implementing authority.

Last winter ACE issued a request to identify all the pertinent CERCLA ARARs ("Applicable or Relevant and Appropriate Regulations") that must be satisfied in ACE's final remediation decision at the NFSS. In its January 25, 2011 reply to ACE, DEC failed to identify the full list of pertinent ARARs at the NFSS, including the most important ARAR, 10 CFR 40 Appendix A. This failure prompted my correspondence with DEC's Mr. Rice.

I have been a stakeholder at this mismanaged FUSRAP site since the public review process began in the early 1980s, when I submitted written comments on the DOE's 1984 DEIS "Long-Term Management of the Existing Radioactive Wastes at the Niagara Falls Storage Site." The NFSS has a very large quantity of radium-bearing wastes (over 2000 Curies) which are "indistinguishable in hazard from High-level Waste" according to the 1995 report of the National Academy of Sciences' expert review panel.

I wish to stress that while the NFSS wastes are a federal liability/responsibility, it is the State Executive's duty to the citizens of New York to ensure that the federal decision made by ACE fully satisfies all the pertinent ARARs -- both State and federal -- in the AEA regulatory framework.

Thank you for your attention to this important issue.

Sincerely,

James Rauch
Secretary
F.A.C.T.S. (For A Clean Tonawanda Site)

Enclosure: December 13, 2011 email to Mr. Tim Rice, Chief, Radiological Sites Section, DEC





Enclosure:

Subject: Final Waste Disposition Decision at the NFSS
Tuesday, December 13, 2011 1:07 PM
From: "J Rauch"
To: "Tim Rice"
Cc: "Tim Henderson","Ann Roberts","Amy Witryol","Joanne Hameister","Robert Phaneuf","Thomas Papura","James Rauch"

Mr. Rice,

I sent an email information request to you on 11/17/11 following up on your 11/16/11 reply to my information request of 10-25-11. Your 11/16 reply did not explain why NYS has not identified the key ARAR for the NFSS: the U. S. NRC's 10 CFR 40 Appendix A Criteria. You have not responded to my 11/17/11 email.

In your 11/16/11 reply you simply pointed to DEC letters which vaguely indicate that NYS does not think the IWCS is "an appropriate long-term solution," and state that "the Department saw its role as providing the State ARAR's as is our normal procedure in circumstances of this nature."

1) I am not aware of any law thats prevents NYS identifying federal regulations as CERCLA ARARs. So, I ask again, what law prevents NYS DEC identifying to ACE the pertinent ARAR - 10 CFR 40 App. A - which makes the IWCS unacceptable to the community and NYS DEC for final waste disposal? And, lacking such law, who in the executive branch of State government has made the decision not to identify this key set of regulations?

As you know, Title 10 CFR Part 40 Appendix A contains the detailed siting criteria for a structure for the disposal of 11e.(2) byproduct materials. These criteria are the legally applicable disposal facility criteria for the disposal of all of the NFSS wastes, not simply the "residues." It is by this measuring stick that the IWCS temporary landfill fails miserably to satisfy both the overall goal and specific criteria of this standard. As an Agreement State NYS could have (and should have since it possesses considerable quantities of this byproduct), promulgated equivalent or better State-level regulations after the passage of UMTRCA in 1980, but it did not. And so, it is only the identification of these applicable federal regulations by the State that will prevent the ACE using the IWCS for permanent disposal of the NFSS wastes.

2) You say that the "Afrimet residues are the K-65 wastes." In fact, the L-30, L-50, and F-32 residues are also Afrimet (African Metals, the original Belgian owner) residues. At what Radium-226 concentration is any residue no longer a "high-activity" material causing greater concern to DEC? Is DEC only concerned about high concentration residues or total activity as well? In this connection, please see ROLE's August 24, 1994 letter to DOE Secretary Hazel O'Leary (copied to former Radiation Bureau Chief, Paul Merges, as well as Karim Rimawi) regarding the mismanagement (weathering dilution) of the formerly more concentrated domestic R-10 residues.

3) You did not answer my question re the most intensive future use that DEC reasonably expected at the Site, saying the timing was not right. I disagree, and so does ACE. Determination of the most limiting future use is a prerequisite to the establishment of cleanup levels, which in this case involves selection of ARARs. As you know, when a final waste disposition decision is being made for radioactive materials with a 500,000+ year hazardous life, future use must consider the loss of institutional control and the most intensive uses the site has previously witnessed, in this case resident farming. Currently, residential use continues to encroach upon the Site, and is an expected future use in the event of loss of control. Future on-site residents will not be protected by an ACE cleanup level decision that assumes less intensive uses. So, I ask again, what does DEC consider to be the limiting future use on this site?

4) In this connection, you say that the EPA's 40 CFR 192 regulations (which were developed for the sparsely populated, dry, western mill sites where residential radon exposure was considered unlikely) were not intended to regulate "such high-activity wastes as the K-65 residues contain." However, DEC has failed to identify the more suitable - for the NFSS setting - Option 1 of NRC's 1981 BTP for Disposal of Onsite Storage of Thorium or Uranium Wastes from Past Operations, which has previously been used by NRC at many legacy SDMP sites located in similar residential settings, e.g. Kerr-McGee's West Chicago facility. Although not a promulgated regulation, this is the guidance that NRC has used at several pre-UMTRCA legacy sites where it did chose to regulate. Why was this BTP not identified as the appropriate cleanup level ARAR for the NFSS, while the State guideline, DSHM-RAD-05-01 (a CERCLA "TBC," To Be Considered ARAR), which you admit DEC already knows ACE has ignored at Tonawanda and Colonie and won't recognize at NFSS, was identified?

For additional background and further elaboration of these key issues at the NFSS, please see my briefing memo at: http://westvalleyfactsofwny.org/NFSSbrief.htm

Sincerely,

Jim Rauch