Comments on the 2008 West Valley DEIS (DOE/EIS-0226-D [Revised])

by James Rauch
F. A. C. T. S. (For A Clean Tonawanda Site) Inc.
September 8, 2009

Background
The National Environmental Policy Act of 1969 (NEPA) was enacted by the 91st Congress to bring a thorough scientific evaluation of the environmental impacts of federal actions into the decision process before the implementation phase of all major federal activities. The vehicle for this analysis is the Environmental Impact Statement (EIS).

The federal Energy Department's (DOE) record in satisfying the intent and substantive requirements of NEPA at its large nuclear sites has been quite poor, especially in recent times when the full scope and huge costs of properly managing legacy wastes from the Manhattan Project and Cold War periods has been realized and has met with resistance both in-house and in Congress. DOE's poor legacy waste management practices received national media attention in a USA Today series: http://www.usatoday.com/news/poison/cover.htm, incorporated by reference into these comments.

In the WNY area, DOE's performance has been abysmal. In the 1990s, Tonawanda's Manhattan Project site (a FUSRAP [Formerly Utilized Sites Remedial Action Program] site where the refining of uranium used in the Hiroshima bomb took place) was the subject of a $6 million DOE environmental review study that identified a soils cleanup level for uranium of 60 pCi/g. The NRC cleanup level for an area subject to intensive human use, as is the case at Tonawanda, is 10 pCi/g. Before the soils were addressed, several very costly attempts were unwisely made to decontaminate the waste-saturated uranium refinery buildings (tens of millions of dollars), which had been improperly transferred in the 1950s from federal control to private industry (now Praxair). These attempts all failed; the buildings were subsequently demolished and removed. As at the NFSS, Congress transferred cleanup responsibility to the Army Corps in 1998 and instructed the Corps to ignore the established NRC radioactive waste regulatory regime, and to remediate the properties under CERCLA ("Superfund"). This resulted in the Army Corps' selection of grossly sub-standard cleanup criteria for the refinery's contaminated soils: 600 pCi/g surface soils, 3000 pCi/g subsurface soils.

The requirements of NEPA were trashed by DOE in the mid-1980s when the highly-radioactive, radium-bearing wastes (K-65 residues) stored in a Manhattan Project silo at the DOE-owned Niagara Falls Storage Site (NFSS) in the Towns of Lewiston and Porter (another FUSRAP site, near Niagara Falls, NY) were slurried into nearby wartime building basements and, together with large amounts of other radioactive wastes that were scraped up from the various contamination sites and drainages, became the contents of a large landfill (or tumulus) called the "Interim Waste Containment Structure" (IWCS). DOE's after-the-fact EIS in 1986 was to decide whether or not to put a final clay cap on the "IWCS," a tumulus that did not, and does not, satisfy the applicable Nuclear Regulatory Commision (NRC) requirements (10 CFR 40 Appendix A) for such radioactive wastes. That question remains open, and in the hands of the Army Corps of Engineers since 1998, because Congress continues to not want to spend the funds necessary to properly deal with this and other sites' wastes. And so, 23 years after DOE trashed the NEPA process at NFSS, 2000 Curies of Ra-226, an amount sufficient to contaminate a volume of water the size of Lake Erie to levels above the federal drinking water standard, remain in a sub-standard landfill. Recent reports indicate that the unlined landfill is likely to be leaking. Short-term savings were realized but the proper long-term management of these deadly wastes, which must be achieved to avoid large environmental consequences, was rendered much more difficult and much more costly (see the 1995 NAS report "Safety of the High-Level Uranium Ore Residues at the Niagara Falls Storage Site, Lewiston, New York" which also stigmatized these residues as "indistinguishable from high-level waste," incorporated by reference into these comments).

At West Valley, the federal Energy Department and an irresponsible NYS site owner, NYSERDA (a public authority corporation of New York State), are proceeding down the same irrational path already tried at the Niagara Falls Storage Site, employing "onsite interim actions" in a shortsighted, cost-saving attempt to manage huge quantities of long-lived, dangerous radioactive wastes in situ at an unsuitable physical location, this time at a uniquely unsuitable location on a rapidly eroding small plateau within a steep, unconsolidated glacial till-filled valley that drains via Cattaraugus Creek into Lake Erie, an irrepleaceable freshwater resource.

New York State and federal DOE officials have backed indefinite onsite management of the wastes, not because it will save money and avoid environmental disaster in the long term, but simply because it is less costly in current budget years. Public expectations that the "Change We Can Believe In" Obama Administration would bring rigorous, scientific decision-making to DOE activities have not been realized. Apparently, the Obama Administration has no problem spending trillions of public dollars to bail out the ersatz investment vehicles of corrupt investment bankers, but prefers to sit by and watch as the unraveling of physically unsuitable major nuclear waste sites, such as West Valley, contaminates precious drinking water supplies. Sadly, it appears that a calculation has been made both in Albany and Washington that no immediate political harm will result if the failing federal nuclear waste management approach and practices are simply continued.

And so, in this latest DEIS, the DOE and site owner NYSERDA want the long-overdue, 1987 court-ordered, site-wide NEPA decision at West Valley, NY to be delayed thirty more years, preferring instead a NEPA-illegitimate (i.e. non-sitewide) "phased decision making" proposal that lacks any provision for further site-wide NEPA review but implements onsite waste management "interim actions," including the already identified slurry walls and plastic covers over the burial grounds. The proposed NEPA non-decision which addresses only a fraction of the site's wastes is simply a prologue to a future CERCLA ("Superfund") morass, following the established pattern of Tonawanda and the NFSS, and represents a colossal failure of State leadership that even surpasses the original siting blunder of a naive Nelson Rockefeller. Such a NEPA non-decision will again result in State and federal governments throwing away more public money, this time in the billions, trying to maintain waste isolation at this untenable location. As already noted, the DOE employed the same NEPA-evasion strategy at the Niagara Falls Storage Site in the 1980s, squandering tens of millions on a faulty "interim" tumulus that otherwise would never have been sited; see a detailed description of the NFSS story at http://westvalleyfactsofwny.org/nfss.htm, incorporated by reference.

The Spitzer administration did not offer to join the Coalition on West Valley Nuclear Wastes in its unsuccessful 2005 complaint against DOE for a lawful NEPA site-wide cleanup process and decision at West Valley. Instead the State joined DOE's "Core Team" and secretly planned this NEPA-illegitmate "interim end state" proposal. The recent federal appeals court decision denying the Coalition's claim means that this DEIS's preferred non-decision alternative may proceed and the Coalition's 1987 court-ordered, NEPA site-wide closure process is likely terminated, an unconscionable situation for long-time public interest stakeholders.

A NYSERDA complaint against DOE ([NYSERDA_COMPLAINT_FINAL.pdf], incorporated by reference) brought in 2006 was "tentatively" concluded in June, 2009; the terms of the proposed settlement have been withheld from the public, presumably until after the close of this DEIS's comment period. Two days ago, NYSERDA's project director revealed that transfer of control over "a portion of the [WVDPA] Project Premises on the north and east sides of the SDA to NYSERDA" is being negotiated with DOE prior to the decommissioning of the Project in order to perform knickpoint erosion control work on Erdman Brook, to establish "an erosion control buffer area for the SDA ... and to meet a requirement of NYSERDA's 6 NYCRR Part 380 Permit for the SDA." He further noted that "DOE and NYSERDA are working to develop and document a mutually agreeable cost split for this work." It seems fairly obvious that early implementation of some details of the onsite waste management preference has been necessitated by the occurrence of the recent excursionary August storms event (see WV erosion 8-09.htm,incorporated by reference into these comments).

Excavation and removal of the West Valley site's radioactive wastes, including the two burial grounds, the tanks, and the lagoons, is both the safest and the least costly long-term management option for New Yorkers, according to a State-sponsored study by independent experts entitled "The Real Costs of Cleaning Up Nuclear Waste: A Full Cost Accounting of Cleanup Options for the West Valley Nuclear Waste" (shortened to "Full Cost Accounting Study" or FCAS), incorporated by reference into these comments. This physically most unsuitable waste storage location would never have been selected under the subsequent federal radioactive waste facility siting regulations 10 CFR Part 61. All attempts to control erosion will inevitably fail in this steep glacial till valley; see the following photos and descriptions: http://westvalleyfactofwny.org/WVslump-fr.htm. , the Powerpoint presentation ID: 20235.ppt "WVDP Dams After August Storms Events, Photographs taken on August 10 and 11, 2009, provided to James Rauch September 4, 2009" by WVES, and the two sets of NYSERDA August 2009 photos: http://westvalleyfactsofwny.org/WV erosion 8-09.htm#NYSERDA, all incorporated by reference into these comments. The ensuing discharge of wastes will contaminate the downstream water supplies of Cattaraugus Creek, Lake Erie, the Niagara River and Lake Ontario.

A safe, fiscally sound outcome at the West Valley site requires that New York State government take the following actions: NYSERDA should not settle, but instead should vigorously pursue its lawsuit against the DOE. NYS Attorney General Cuomo should take all necessary legal actions to enforce completion of the legitimate site-wide NEPA process that began in 1987 and culminated in the release of the 1996 site-wide DEIS, and to assure compliance with the letter of the 1980 West Valley Demonstration Project Act including: 1) injunctions to stop illegal onsite waste management "interim actions" being conducted by DOE before the legitimate NEPA site-wide review process ROD is issued; such ROD should have been issued over ten years ago; 2) a declaration that DOE is responsible for exhumation of the high-level waste tanks, the NRC-licensed Disposal Area (NDA) and the federally-sourced materials in the SDA, as well as removal of the process buildings and soils; and 3) a declaration that NRC must not apply the generic-EIS-supported 10 CFR Part 20 Subpart E (the "LTR") to evaluate DOE's decommisioning plan for the WVDP Premises, but instead must perform a site-specific EIS to fulfill its main WVDPA task: prescribing site-specific cleanup criteria (see http://westvalleyfactsofwny.org/WVRA-eval.htm#LTR, incorporated by reference).

But first, the administration in Albany needs to end the State's conflict of interest at the site (see http://westvalleyfactsofwny.org/WVRA-eval.htm#SDA, incorporated by reference) by declaring that the State Disposal Area (SDA) burial ground must be exhumed, even if that means a substantial share of this cost is borne by New Yorkers and bonding of the project is required.