[ F.A.C.T.S. letterhead (12 kb Image) ]

                                                            March 26, 1996

Mr. Dennis Sollenberger
Office of State Programs
U.S. Nuclear Regulatory Commission
Washington, D.C

Subject: Unregulated Radon Release from Browning-Ferris, Inc.'s Niagara
          Landfill (one of the radioactively contaminated properties in the
          Energy Department's Tonawanda NY FUSRAP Site)

Dear Mr. Sollenberger:

     The purpose of this letter is to record the points I made during our
phone conversation of yesterday, to make additional comments, and to
provide a partial list of parties interested in receiving copies of NRC
communications on this issue.

     Yesterday, I referred to a February 29, 1996 letter from Paul Merges,
Chief, Bureau of Radiation, NYSDEC, to Craig Gordon, U.S. NRC, Region I, in
which Dr. Merges has sought written confirmation from NRC that New York
State cannot license the FUSRAP wastes because they are 11(e)(2) materials
which are not specifically addressed in New York's Agreement with the
federal NRC; that only NRC can license these wastes; that, "as a matter of
policy (which NRC has not publicly distributed), the NRC does not seek to
regulate 11(e)(2) material that DOE has included in the FUSRAP program,
even though DOE does not own the material" (and DOE currently has no plan
to remediate the landfill: the sitewide EIS process was suspended two years
ago [in April of 1994] and, despite DOE promises, the development of a
sitewide remediation plan/ROD acceptable to the community has not and is
not currently taking place); and that "as long as DOE is studying the site
to decide on remedial actions, NRC will still not assert regulatory control
over the material." 

     I then referred to a March 20, 1996 letter from Paul Merges to Renee
Voyt, Permit Coordinator, Browning-Ferris Gas Services, Inc., which you
said you had not received.  This letter states:

     If this release were subject to permitting under Part 380, a permit
     would probably be issued. ...  As you know, we have asked the US
     Nuclear Regulatory Commission for a written determination regarding
     our jurisdiction over the FUSRAP material (you were sent a copy of
     my February 29, 1996 letter to the NRC).  If the NRC confirms our
     understanding , we will not have the authority to apply Part 380 to
     any activity involving the FUSRAP material, and the question of
     whether or not the Part 380 permitting threshold is exceeded will
     be irrelevant.

     Enclosed with this letter to BFI was a copy of a NYSDEC report on
radon gas sampling (Interim Report on the Radon Investigation at the Niagara
Landfill, March 20, 1996) which you also had not received.  I pointed out
that the sampling results of landfill gas passively venting through
individual gas collection wellheads show radon concentrations ranging from
83 pCi/l to 299 pCi/l, levels roughly 800 to 3000 times the Table II,
Column 1 limits of 6 NYCRR Part 380 and 10CFR20. 

     I indicated that faced with this now documented public health threat
the community will not accept this sudden possibility of a regulatory
vacuum.  I said that a purpose of the Atomic Energy Act is to provide
regulatory authority over these materials in order to protect public
health.  You said that NRC was reviewing the matter, that NYSDEC's possible
lack of authority to license the FUSRAP wastes may prevent NYS from
requiring prompt remediation (removal of the FUSRAP wastes from the
landfill), but that this did not necessarily mean NYSDEC could not apply
Part 380 to control release of the FUSRAP wastes.  I said that if NYSDEC in
fact lacks authority to apply Part 380 to the FUSRAP wastes, then we would
expect NRC to immediately license the owner of the wastes and regulate any
release of radioactive material, including radon, under the provisions of
10CFR20.  I also said that I would provide you a list of interested parties

     Briefly, I wish to make the following additional points: 1) For two
years NYSDEC's Bureau of Radiation has led us to believe that they had
authority to regulate the FUSRAP waste under Part 380.  We objected to
NYSDEC's basis (two questionable sets of DOE calculations) for the initial
decision not to require a Part 380 permit application from BFI.  Now,
presumably after receiving the vent results, NYSDEC suddenly raises the
jurisdiction issue.  We believe this raises serious questions of competence
or integrity, or both.  2) While we agree that the results noted above now
clearly show a Part 380 permit application to be required, it is improper
for Dr. Merges to predict in advance that such a permit would probably be
issued; 3) We do not believe there is sufficient evidence to support Dr.
Merges contention that "it is likely that most of the vented radon
originates in the solid waste itself, the soil used for cover, and the soil
beneath the waste"; we do know there is about one curie of FUSRAP radium in
the landfill (according to DOE).

     Finally, in the February 29, 1996 letter to NRC's Craig Gordon, Dr.
Merges has requested a quick decision on the regulatory status of the
radioactive material by March 31, 1996 "[b]ecause of the permit
applications this Department has before it for the electric generating
project".  We have previously been told by NYSDEC that BFI would not make a
construction decision on the cogen facility until the flow of biogas had
been assessed for a year.  We expect NRC to conduct a thorough review of
this situation.


                                   James Rauch


cc: Craig Gordon
    General Counsel, Benderson Development Co.

                    Partial List of Interested Parties

Ms. Alex Cukan
Sierra Club Niagara Group

Mr. Andrew Goldstein
Buffalo Greens

Mr. Ralph N. Krieger
Pres., Local 8-215 OCAW

Mr. Pat Martin

Mr. Michael Skoney
Pres.,Tonawanda School Board

Mr. Bill Watson

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