by James Rauch

Key Considerations at the NFSS:

1) The Site's principal hazards are the radium-bearing "residues" which contain 2200 Curies of Radium-226 and its decay products, notably Radon-222; this amount of radioactivity means the NFSS radioactive residues will pose a major environmental/health hazard to the Niagara region for more than 500,000 years; see figure 4-2 of the 1984 NFSS DEIS. This activity of radium is sufficient to contaminate a volume of water equivalent to that of Lake Erie above the 5 pCi/L federal drinking water standard. These concentrated "residues" (known as K-65, L-30, L-50, R-10, and F-32) are improperly classified as 11e.(2) byproduct material. They must be handled remotely and are in fact "indistinguishable in hazard from High-level Wastes (HLW)" which by law (40 CFR 191) require both the best available waste treatment and disposal facility siting that will assure 10,000 years of waste isolation, i.e. vitrification and the driest disposal sites. See a description of important, relevant details of mismanagement dating back to the short-sighted "interim actions" and the after-the-fact NEPA process of the 1980s. These unwise "interim actions" have increased the contaminated volume and increased the difficulty and the cost of long-term waste isolation, which is the decision at hand.

2) In the mid-1980s, the Site's radioactive materials were placed in temporary (then-stated as 10 years) storage in the "Interim Waste Containment Structure" (IWCS), a landfill that does not meet the applicable standards for disposal of these materials. The Site's adverse physical conditions and the native soils forming the bottom of this leaking "tumulus" do not meet the uranium byproduct disposal facility design requirements of the U.S. Nuclear Regulatory Commission's (NRC) applicable regulations at 10 CFR 40 Appendix A, which became law on October 16, 1985. The criteria contained in this "ARAR" require a fully engineered structure to be located and constructed such that "permanent" waste isolation is assured without need of costly ongoing facility maintenance (Note: DOE's Bill Seay, in his May 25, 1994 presentation to the National Academy of Science panel, cited a half million dollar annual maintenance cost for the NFSS tumulus). In contrast, CERCLA requires a remedy to be protective for only a 200 year period (minimum). See relevant comments 2, 8, 9, 10 here.

3) Federally owned (by U.S. Department of Energy, DOE) radioactive materials and site. The DOE will retain liability for all radioactive materials that remain on the 191 acre NFSS FUSRAP (Formerly Utilized Sites Remedial Action Program) site following completion of Army Corps activities. This federal compound is adjacent to properties currently used for hazardous and solid waste disposal, schools and residential housing; prior to the federal acquisition, agricultural use, the maximum radiation exposure scenario land use, was prevalent in the area and on the Site. Residential use is the limiting future land use which must be factored into this final cleanup level decision because such use will occur if the site is turned over to private hands, or when federal institutional control is lost at some point in the future.

4) Contrary to Army Corps' claim, DOE's cleanup at Fernald is not a success story: That site's first ROD properly called for the K-65 residues to be vitrified, but later they were only stabilized in a much inferior flyash/concrete process that will assure environmental isolation for only a small fraction of the time period provided by vitrification; and Fernald has a large activity tumulus that, because it also is located in an adverse climate, will eventually leak and contaminate the currently-used aquifer underlying the region.

5) Focusing only on current cost savings, starting in FY 1998 Congress transferred the remediation of DOE's FUSRAP site liabilities to Army Corps and directed Army Corps to use CERCLA as its implementing authority; see FY2000. Whether intended or not, Army Corps (a non-AEA authorized agency) has interpreted this Congressional directive as a mandate to eliminate as CERCLA "ARARs" the cleanup requirements of the Atomic Energy Act (AEA) regulatory framework including Agreement State guidelines [see below]. However, the U.S. EPA and the NY State Executive (in this case, NYS Department of Environmental Conservation, "DEC") each have the right and responsibility under CERCLA to ensure that the pertinent AEA cleanup regulations (federal and State) are implemented at FUSRAP sites such as the NFSS, but they must identify the regulations to Army Corps in a timely fashion; see statement from DEC's Office of General Counsel.

Pertinent waste-specific AEA cleanup criteria have not been selected as "ARARs" and met by Army Corps at other FUSRAP sites, e.g. the Tonawanda, NY FUSRAP Site. At Tonawanda, Army Corps has selected weak cleanup criteria based on faulty assumptions of very limited future uses - such as parkland and limited light industrial use scenarios wherein some exposure pathways are excluded and the remaining exposure pathways are limited to a few hours per week - when it knows that much more intensive uses, notably residential use, curently exist in surrounding areas are likely on-site in the future. Institutional controls (eg, fencing and deed restrictions) can be relied on for only 100 years, according to the federal LLRW (Low-level Radioactive Waste) disposal siting regulations (10 CFR 61). This falls short of the 200 year minimum required under CERCLA, yet, having accepted a weak cleanup ROD, DEC is now facing the need of such controls at the Linde/Praxair property of the Tonawanda, NY FUSRAP Site; see Linde 5-year review interviews.

Recommendations for the IWCS, the first of three CERCLA "operable units":

1) To be both cost effective and environmentally protective in the long term, the "residues" (K-65, L-30, L-50, F-32, and R-10) and silo (tower) soils must be removed from the IWCS, stabilized (preferably by vitrification), and stored at the best physical sites (DOE's Nevada Test Site [NTS] or Energy Solutions). The remaining "wastes" should be removed to the best physical LLRW disposal sites (preferably NTS) if long-term maintenance costs are to be avoided and, therefore, waste isolation to be assured for the longest time. Placing the "wastes" in a new onsite disposal facility that attempts to satisfy the design criteria of 10 CFR 40 Appendix A is a poor alternative due to this area's severely adverse climate. A tumulus at this location cannot meet the primary goal of this regulation and will see a much earlier loss of containment when funding of costly ongoing facility maintenance ceases.

2) Timely identification by the federal EPA and the NYS DEC of all the ARARs that are pertinent to all phases of the remediation - IWCS, groundwater and soils - will be required to secure this minimally acceptable long-term outcome; experience at the Tonawanda, NY FUSRAP Site has shown that citizen group identification of the pertinent ARARS is not sufficient. The requirements contained in Title 10 CFR Part 40 Appendix A are the legally applicable design criteria for a disposal facility for the FUSRAP materials at the NFSS; see article quoting Judge Buckley's ruling in the Kerr-McGee West Chicago case. Identification of 10 CFR 40 Appendix A is essential, as these regulations will require the complete excavation of the substandard IWCS. It can reasonably be expected that complete excavation will result, at minimum, in the treatment of the residues and their offsite disposal.

The list of AEA framework regulations that EPA and NYS DEC need to ensure the Army Corps implements as "ARARs" at the NFSS include:

For the residues: the equivalent of EPA's 40 CFR 191 High-level Waste disposal regulations; see EPA letter of July 27, 2009 to Army Corps and EPA letter of September 8, 2009.

For all wastes: NRC's 10 CFR 40 Appendix A (Criteria Relating to the Operation of Uranium Mills and the Disposition of Tailings or Wastes Produced by the Extraction or Concentration of Source Material From Ores Processed Primarily for Their Source Material Content), 6 NYCRR Parts 382 and 383 (NYS Low-level Radioactive Waste Disposal Facility regulations), Option 1 of NRC's 1981 BTP for Disposal or Onsite Storage of Thorium or Uranium Wastes from Past Operations, EPA's 40 CFR 192 (Health and Environmental Protection Standards for Uranium and Thorium Mill Tailings), NYS DSHM-RAD-05-01 (NYS Cleanup Guidelines for Soils Contaminated with Radioactive Materials, formerly TAGM-4003), EPA's 40 CFR 141 and 142 (National Primary Drinking Water Regulations), 6 NYCRR Parts 701, 702 and 703 (NYS drinking water classification and regulations), and several other NYS regulations.