F.A.C.T.S. (For A Clean Tonawanda Site) 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 Site 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 and the Uranium Mill Tailings Radiation Control Act [UMTRCA]) 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 DOE assurances that selection of remedial actions at the FUSRAP Tonawanda Site would be subject to DOE's environmental review under NEPA, in October of 1997 Congress switched the appropriation for FUSRAP activities from DOE to USACE.

On June 2, 1998, F.A.C.T.S. filed a lawsuit in federal district 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 implementing its deficient cleanup decision (January 1998 Ashland ROD) in violation of NEPA. A few months later, in its FY 1999 FUSRAP appropriation, Congress directed that USACE perform all FUSRAP site cleanups under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and that USACE's FUSRAP actions not be subject to licensing by NRC. Since the 1986 SARA amendments, CERCLA contains a provision (section 113h) that prohibits the federal courts from hearing a citizen challenge to a selected cleanup until after the cleanup is complete. F.A.C.T.S. believes that DOE and Congress reached this decision in order to eliminate both the court-reviewable public review and comment procedures previously required by NEPA, and NRC application of the legitimate Atomic Energy Act cleanup framework for the 20+ FUSRAP sites not covered by Title I of UMTRCA.

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

However, according to CERCLA § 121(d)(2)(A): “With respect to any hazardous substance, pollutant or contaminant that will remain onsite, if . . . any promulgated standard, requirement, criteria, or limitation under a State environmental . . . law that is more stringent than any Federal standard, requirement, criteria, or limitation . . . and that has been identified to the President by the State in a timely manner, is legally applicable to the hazardous substance or pollutant or contaminant concerned or is relevant and appropriate under the circumstances of the release or threatened release of such hazardous substance or pollutant or contaminant, the remedial action selected under section 104 or secured under section 106 shall require, at the completion of the remedial action, a level or standard of control for such hazardous substance or pollutant or contaminant which at least attains such legally applicable or relevant and appropriate standard, requirement, criteria, or limitation . . . ”

Therefore, when specific promulgated cleanup guidance is identified by a state in a timely manner as ARARs for a FUSRAP cleanup proposal, the Army Corps is obligated by CERCLA to satisy those ARARs. See DEC attorney J Eckls reply to J Rauch for a detailed discussion of this matter. Since the SARA in 1986, only states (not a state's citizens) have this right to identify and request specific cleanup ARARs.

Where states have not intervened in Army Corps FUSRAP actions on behalf of citizens (New Jersey did so and obtained enforcement of its more stringent standards), the CERCLA remediations implemented by the Army Corps routinely have not followed the requirements of the established AEA/state regulatory regime. And so, not surprisingly, many of the Army Corps' FUSRAP 'cleanups' have been seriously deficient, falling far short of the EPA's CERCLA radiation standards.

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

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