Despite opposition from a broad coalition of public interest groups -- see 4/28/05 joint letter with attached Memo of Opposition and Exhumation Study Memo, and 9/20/04 letter to Rep. Tom Reynolds -- the Pataki administration pursued local Congressmembers to sponsor its irresponsible legislative proposal. The proposal, developed by NYSERDA and dubbed the "West Valley Remediation Act," would grant the federal government complete control over the extent of further cleanup, if any, at the West Valley site.
Following in the footsteps of the Pataki administration, Governor Spitzer, also fixated on shedding the State's massive liabilities at West Valley, has rejected the groups' recommendations to include public review process guarantees and other provisions essential to protect the long term interests of citizens and residents of the region. The groups think that the sitewide decommissioning and closure EIS process should be completed prior to consideration of any new legislation and that the stalemated State-federal negotiations on cleanup responsibilities at the site might best be resolved in an evidentiary court proceeding.
A State-sponsored advisory group, the West Valley Citizen Task Force, has also asked the local Congressional delegation to introduce the proposal in Congress. Reflecting the limited representation of public interest NGOs, to date only the League of Women Voters representative on this 12 member group has expressed opposition to the proposal and to the CTF making this request for the State.
Evaluation of NYSERDA's West Valley Remediation Act (WVRA) legislative proposal
by James Rauch
February 12, 2005
In essence, this proposal is an attempt by an irresponsible State administration to shed its large liabilities at the Western New York Nuclear Fuel Service Center by completely relinquishing the State's decisionmaking authority at the Center to an environmentally unfit federal administration. Lack of willingness on the part of the federal government to shoulder costs associated with the extent of "remediation" necessary to properly decommission and close the Center to an unrestricted use condition, makes any transfer at this time of site possession or title to the federal government very imprudent from the public health perspective. The proposal does not identify site-specific cleanup criteria to be used, nor does it provide the substantial resource commitment necessary to implement a timely, unrestricted use cleanup of the Center. It should be vigorously opposed because the proposal guarantees no improvement in outcome to the previously announced, woefully shortsighted, State and federal in situ maintenance and monitoring intentions for the site.
In light of recent DOE waste management activities and plans this legislative attempt to replace the West Valley Demonstration Project Act (WVDPA) is premature. In recent years, the Bush Energy Department (DOE) has teamed up with a neo-con influenced Congress to legislatively re-classify much remaining High-Level Waste as "Waste Incidental to Reprocessing" (WIR) in order to avoid the costly long-term safety requirements needed to effectively isolate HLW.(See http://westvalleyfactsofwny.org/leg-watch.htm#HLWDeclassification.)
At this time, in this Congress, any legislative proposal involving the West Valley site carries the substantial risk of acquiring provisions which would in their execution render the site a federal "sacrifice area" similar to the federal custodial care compounds at Hanford, WA and Savannah River, GA (the site to which Ronald Reagan first applied the term).
Instead, what is needed is completion of the WVDPA's legitimate public review process as clarified by the 1987 Stipulation of Compromise Settlement. This process, embodied in the sitewide decommissioning and closure EIS, a combined NEPA/SEQRA process, was halted following release of the 1996 DEIS. DOE subsequently attempted to terminate this process and initiate a new process. The delayed 1996 process affords legal protections that may be employed to ensure that waste management decisions are protective of future public health. The 1996 DEIS provides ample evidence that complete exhumation and relocation of wastes, while initially the most costly to implement, is the only viable long-term solution at this physically most unsuitable site.
NYS/federal mismanagement: Strontium-90 has surfaced in the creeks draining the site
SDA dump trench being filled with boxes and drums of waste, 1970s
NYSERDA (a NYS public authority corporation) currently holds a license (CSF-1) from the federal NRC for the WNY Nuclear Fuel Service Center which covers the entire 3345 acre property including the built facilities and the NRC-licensed disposal area (NDA). This license is "in abeyance" under terms of the 1980 West Valley Demonstration Project Act (WVDPA). The separate State-licensed Disposal Area (SDA), previously operated by Nuclear Fuel Services under a separate New York State license, is currently both State self-licensed by NYS DOL (12 NYCRR 38, radioactive materials possession and management license 0382-1139) and self-permitted by the NYS DEC (under 6 NYCRR Parts 380 [radioactive discharge control program] and 381 [transportation]) under authority granted by NRC to NYS in October 1962 under NRC's Agreement State program. The State became the sole NRC licensee in 1981 when it compounded its initial, colossal siting error by allowing the site's private operator and co-licensee, Nuclear Fuel Services of Erwin, TN, to abandon the site not in "good condition." NRC allowed the transfer of this private operator's license to the State, effectively making the State financially liable for the whole site after completion of the WVDP and placing the State in a conflict of interest position over decisions about the extent of site cleanup. It should be noted that NRC corruption and secrecy protection has allowed Nuclear Fuel Services to continue its operations at Erwin, TN and to benefit from DOE contracts despite numerous violations and contamination resulting in a class action lawsuit.
The public interest is a statutory decommissioning of all licenses and permits, federal and SDA, which can only be achieved by the thorough sitewide (and off-site) waste removal actions, embodied in Alternative 1 of the 1996 decommissioning and closure DEIS, that are necessary to attain the statutory "free release" condition. "Free release for unrestricted use" requires that after cleanup the maximally intensive site user will be exposed to only a "de minimis" (see http://westvalleyfactsofwny.org/glossary.htm#deminimis for definition) increase risk of adverse health effects from residual contamination. Because this former mostly agricultural property lies in a unique physiographic location -- the site drains to Lakes Erie and Ontario, irreplaceable drinking water sources for millions of people -- "cleanup for unrestricted use" must imply application of the "resident farmer exposure scenario."
Unfortunately, the Pataki administration's overriding motivation at this point is to eliminate the huge financial consequences of a disastrous decision by Nelson Rockefeller. It is not to protect the long-term environmental welfare and public health interests of its citizens and the residents of the region. Transfer of Center possession or title to the federal government along with the complete removal of any State liabilities (see Sec. 5, 8 and 9) doesn't only eliminate the State's huge legal/financial liabilities at the site. It also will effectively void the State's existing strong legal standing in the cleanup decisionmaking process. The independently elected State Attorney General is the strongest legal entity currently available to citizens interested in ensuring the proper and full decommissioning of the Center to an unrestricted use condition. If this proposal is enacted the State's power to effectively seek judicial relief on behalf of its citizens of unsound federal cleanup decisionmaking largely will be permanently lost to the current Attorney General or any subsequent State administration or AG that may give a higher priority in the budgeting process to the future health interests of the region's residents.
Section by section critique
Sec. 2 Definitions :
No definition is given for "released for unrestricted use" [appears in Sec 5 (f)]. There can be orders of magnitude differences in the cleanup criteria chosen (and so, the extent of actual cleanup), depending on the land use exposure scenario that is selected. For example, at the Linde/Praxair property of the Tonawanda, NY FUSRAP Site, the Army Corps of Engineers, made national news by using CERCLA to select a soil cleanup level for total uranium (600 pCi/g surface/3021 pCi/g subsurface) that is approximately 4 to 20 times the source material licensing threshold (170 pCi/g) while claiming the cleanup would allow unrestricted use. This upset former State DEC Radiation Bureau chief Paul Merges since DEC could be required to re-license all soils above this threshold not removed from the site (see "Army Improperly Selects Cleanup Criteria"). Nevertheless, the Pataki administration took no legal action to void the Army Corps of Engineers CERCLA ROD for Linde. The Army Corps used a very limited-use exposure scenario -- light industrial -- to justify this ridiculously weak cleanup level. See http://westvalleyfactsofwny.org/glossary.htm#cleancrit for further explanation of how unqualified use of the phrase "unrestricted use" can mislead.
Sec. 3 and 5 Remediation of the Center and Regulation by the Commission :
It is readily apparent to site observers that the current State and federal administrations have agreed the end result of any formal decisionmaking process to be employed at West Valley will be in-situ erosion control and monitoring of both the plant facilities and the burial grounds. For years, both state and federal administration officials have advocated continuation of in place maintenance, 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. This intention is evident through three iterations of wording changes made to the draft WVRA since NYSERDA's first version of July 2004; see the four WVRA versions at http://westvalleyfactsofwny.org/WVRA-ver.htm.
Sec. 3 (a) : "Remediation" is to be done by the DOE Secretary in a manner "consistent with the License Termination Rule" [commonly referred to as the 'LTR', this rule is Subpart E of 10 CFR Part 20] and "all applicable requirements of Federal and State law."
Twenty-five years ago, the 1980 WVDPA directed NRC to develop site-specific cleanup criteria for West Valley. Despite being fully aware of this requirement, when NRC performed a generic environmental impact statement (GEIS) in the 1990s to support promulgation of the LTR, it did not specifically analyze the consequences of applying this rule to the uniquely poorly situated West Valley site. Therefore the NEPA analysis of this GEIS does not support the use of the resulting LTR as the framework to decommission the West Valley site. NRC subsequently improperly decided that the non-site-specific LTR would be used at West Valley. Making a grave situation worse, NRC's Final Policy Statement for Decommissioning Criteria for the West Valley Demonstration Project [67 FR 5003, 2/1/02] specifically identifies and allows incidental waste reclassifications to occur in NRC's application of the LTR to the WVDP, i.e. High-Level Waste can now be managed as Low-Level Waste under the DOE-created WIR designation.
See what a EPA had to say 10 years ago about the lack of protectiveness of the LTR: pages 12-17 of http://westvalleyfactsofwny.org/rad_arar.pdf, (note to Tonawanda Site followers: see pp 6-9 of http://westvalleyfactsofwny.org/umtrcagu.pdf re the lack of protectiveness of 40 CFR Part 192 at many sites, including Tonawanda). Unfortunately, this scientifically semi-rigorous, former EPA regime has been replaced by one where pseudoscientific manipulation now reigns.
The loopholes for restricted release and institutional control available in the LTR will no doubt be invoked by DOE/NRC, albeit inappropriately for West Valley, right up to the 500 mrem alternative dose allowed to the maximally exposed members of the public (likely to be members of the Seneca Nation of Indians).
Implementation of the LTR at West Valley by the DOE/NRC duo, prior to completion of public review of the 1996 DEIS NEPA process in the form of a sitewide cleanup FEIS/ROD satisfies neither DOE's or NRC's normal NEPA obligations nor their specific court obligations flowing from the 1987 Stipulation of Compromise Settlement with the Coalition on West Valley Nuclear Wastes. Such a sequence would effectively eliminate public recourse to court review of a faulty FEIS/ROD. Without doubt, this is the reason why the State's proposed WVRA does not require the existing sequence. To preserve the WVDPA's existing sitewide NEPA process at West Valley as clarified by the 1987 Stipulation, any new legislation must specify completion of this NEPA process through to a sitewide FEIS/ROD prior to any DOE/NRC action on a decommissioning plan. (See Sec. 7 below.)
Given the many negative public experiences with recent CERCLA ("Superfund") decisionmaking at federally managed sites (for example, see "Army Improperly Selects Cleanup Criteria"), a NEPA ROD that declares the cleanup criteria and all applicable laws and regulations is clearly essential from the public interest perspective prior to any form of site turnover to the federal government.
Furthermore, there is a substantial danger that any new legislative proposal will be modified by the addition of provisions that will transform the current NEPA process into a CERCLA process. If this happens, the public will lose not only the absolutely essential findings of the 1996 DEIS process, but also the NEPA-provided right to judicial review of a faulty "remediation" decision. CERCLA has often been mentioned by officials in cleanup discussions at West Valley.
CERCLA is a weaker public review law than NEPA. NEPA provides the public a "hard look," court-reviewable EIS process; CERCLA gives the lead agency discretion in determining which state and federal regulations are ARARs (applicable or relevant and appropriate regulations) and which are TBCs (to be considered). Since the major DOE NEPA policy change on June 13, 1994 initiated by former Secretary Hazel O'Leary, the Energy Department has significantly reduced the number of new NEPA reviews (see 2002 memo and 1994 policy change document). Instead DOE has initiated CERCLA process frameworks at most sites and converted existing NEPA review processes to CERCLA-based processes. NEPA provides the public the right to challenge a faulty FEIS/ROD in court before it is implemented; CERCLA, since passage of the 1986 SARA amendments, does not. The Tonawanda citizen group FACTS found this out the hard way in federal district court in Buffalo over a cleanup ROD issued by the Army Corps of Engineers for the Tonawanda, NY FUSRAP Site. Initially the review process for that site was an integrated NEPA/CERCLA review, however the public's NEPA protections were tentatively lost as a result of the 1994 DOE NEPA policy change, and definitively lost in 1998 when Congress directed that DOE's FUSRAP cleanups were to be completed by the Army Corps using a CERCLA process. See relevant experience at the Tonawanda FUSRAP Site:http://westvalleyfactsofwny.org/summary.htm, http://westvalleyfactsofwny.org/FY2000HR.htm and http://westvalleyfactsofwny.org/fusrap.htm.
Sec 5 (b)(2) There are no provisions for EPA or public review of the DOE/NRC decommissioning plan for the Center. The Act would allow NRC to avoid any NEPA public review whatsoever, including the meager extent of internal study it has thus far deemed to give this major federal action. Years of NRC inaction on its WVDPA-assigned task to set West Valley specific cleanup criteria gave DOE the excuse it needed to illegally bifurcate the site closure EIS process and keep its contractors working. This Act would legitimize NRC's unlawful NEPA-avoidance tactic by allowing it to simply rubber stamp a decommissioning plan developed by DOE. See 3(a) above.
[An earlier CTF version of the Act, dated 8-26-04, directed the Commission to provide a "reasonable opportunity for the State, and its defined county and local stakeholders, to review, comment on and concur or not concur with the decommissioning plan submitted by" DOE. One might wonder who the "defined county and local stakeholders" would be. The DOE's CTF presumably, but perhaps not interested residents in Erie County, regional and national groups, and millions of potentially affected Canadians.]
Sec. 5 (d) The terms and conditions of "all licenses and permits for facilities at the Center issued by the Commission [and presumably the State] shall be held in abeyance until the completion" of remediation. A similar clause is in the WVDPA and during its short tenure, the site has experienced unregulated problems, including an expanding strontium/cesium plume on the North Plateau. There is a clearly disturbing pattern developing here. One might very well wonder why all regulation should cease while specific cleanup activities are being conducted.
Sec. 5 (e) Provides an option for termination of NYSERDA's NRC license prior to completion of the remedial action program authorized by the act. This is clear evidence of the State's eagerness to shed responsibility at the earliest possible date. The previous version (11/17/04) did not have this clause. (This is the only significant change from the 11/17/04 version.)
Termination of the NRC license eliminates the most advantageous avenue of public access to the West Valley decommissioning decisionmaking process: a public, statutory "free release" license termination process. (Illegal NYS license termination at Linde/Praxair prior to the start of work has enabled Army Corps to implement cleanup criteria far weaker than State standards; see F.A.C.T.S.' 3/3/97 letter to former NYS DOL Commissioner Sweeney: http://westvalleyfactsofwny.org/sweeney.htm concerning NYSDOH's illegal license termination at Linde).
Sec. 6 New York State Involvement :
This section provides a legally meaningless consultative role for the State in cleanup decisionmaking. The State is only authorized to observe, collect samples and make measurements.
Sec. 7 Environmental Impact Statement :
Sec. (a, b, c) While the 1996 DEIS process is to be completed in two years, the same time interval as allotted for the decommissioning plan, there is no requirement that the EIS process be completed in the form of a sitewide FEIS/ROD prior to NRC action on the DOE decommissioning plan, only the open-ended wording that the "[EIS] shall be completed as soon as reasonably practicable." Any such prior action on a DOE/NRC decommissioning plan would be illegal under the site's existing WVDPA NEPA process; see 3(a) above.
(The earlier 8/26/04 CTF version reiterated the public's right to legal challenge of a faulty ROD, even though that right is contained within the NEPA law itself. Perhaps the CTF knew CERCLA was on the horizon and was trying to neutralize a fundamental flaw of this law when governments apply it to government sites: citizens can't challenge an inappropriate scenario, risk-based ROD.)
Sec. (e) Formal written FOIA requests and payment will have to be made in order for public stakeholders to obtain documents, and only documents related the EIS process, not the decommissioning plan, are to be available. Currently, subsequent to the Stipulation of Compromise Settlement in 1987, copies of requested records were made available on a no-charge basis to the Coalition on West Valley Nuclear Wastes upon informal request.
Sec. 8 Assumption of Possession and Transfer of Title
Sec. (a) The first version of the proposed WVRA provided for the immediate transfer of the Center's title to DOE. The current version calls for transfer of exclusive possession within 30 days, with transfer of title to waste and lands to occur 20 years later for those portions of the Center not "approved by the Commission for release for unrestricted use." While one might expect immediate transfer of title to encourage rigorous federal attention to life cycle in situ maintenance costs, given the mindset of current State and federal officials [see Sec. 3(a)], more decades of negative site experiences and costs will likely be necessary before any meaningful political consideration is given to exhumation and waste removal. If it has any effect, this modification is likely to make the proposal more viable politically since it may be interpreted as delaying absolute federal liability for 20 years, an eternity to a politician.
Sec. 8 (b) Again, the exposure scenario that is chosen determines the degree of cleanup; "unrestricted use" is meaningless unless the exposure scenario is specified.
Sec. 9 (d) Cooperative Agreement :
The State is relieved of all liability in connection with any claim relating to the conduct of DOE operations at the Center pursuant to the new Remediation Act, including the transportation of radioactive or hazardous wastes from the Center.Once again, the Pataki administration's desire to shed the enormous financial liability represented by the Center has overtaken any sense of responsibility to the regional public interest. Insofar as past and current operations at the Center are concerned, and in particular the SDA, this doesn't seem legally, let alone ethically, possible.
Sec. 10 and 12(b) Repeal of the WVDPA :
The Coalition on West Valley Nuclear Wastes entered into a Stipulation of Compromise Settlement with the federal government in 1987, clarifying the 1980 WVDPA. This Stipulation called for certain waste management and cleanup decisionmaking at the Center to be the subject of a site closure EIS. Sec. 10 repeals the WVDPA, however this is followed by the contradictory wording of Sec.12(b): "this Act shall not diminish or alter the terms of that Stipulation." This conflict jeopardizes the Coalition's legal standing set out in the Stipulation, and will no doubt be unfavorably resolved in markup of the proposal.
Sec. 11 Appropriations :
(a),(c) A minimum yearly appropriation of $95 million is authorized. The suggestion of such a low annual budget figure supports the widespread public assumption that the Pataki administration has already selected the long-term, in place management DEIS alternative. This sum is a paltry amount when compared to the 1996 DEIS's cost estimate of $8 billion for the complete cleanup alternative (to a "greenfield" condition). It would take more than 84 years at $95 million per year to accumulate $8 billions. When coupled with the requirement that the Secretary can only enter into cleanup contracts to the extent of the current year's appropriation, this minimum level of annual appropriation would seem to effectively preclude even the contemplation of timely, thorough, sitewide cleanup. In effect this wording indicates State acknowledgement that, instead of an effective cleanup, there will be long-term, in situ maintenance.
1) The first version of the WVRA contained a clause (Sec. 9) entitled "Independent Review of DEIS and Decommissioning Plan Studies" providing for review by an independent panel of scientists from the National Academy of Sciences or some other body. However, the DOE Secretary was only directed to "consider and address" the panel's recommendations, not act upon them. There would be no public right to legal challenge of an adverse decision by the Secretary, as there would be under NEPA.
The Niagara Falls Storage Site is a good example of "independent review" in practice. In 1995 Congressman LaFalce asked the National Academy of Sciences' National Research Council to conduct an independent review of DOE's decision to leave radium-bearing uranium waste in a substandard tumulus at Lewiston, NY. The selected NAS panel found the "K-65 residue" wastes to be indistinguishable in hazard from High-Level Waste. The NAS panel recommended exhumation and further treatment of the waste. The DOE maintained from the outset of the NAS study that it would not be bound by the panel's recommendations and subsequently has failed to act on those recommendations (see http://westvalleyfactsofwny.org/nfss/nfss.htm.) Responsibility for further cleanup at NFSS, if any, was transferred by Congress to the Army Corps in 1998.
2) In the Seneca Nation of Indians' (SNI) letter of October 9, 2004 [476 kb PDF], SNI submitted well-reasoned recommendations for extensive changes in the proposal (excepting the misplaced faith that a CERCLA process will necessarily afford "more stringent standards" -- see Sec 3a above). The fundamentally important SNI recommendation that the State and EPA maintain their respective regulatory authorities at West Valley, as outlined in detail in the Regulators Communication Plan on Application of Cleanup Requirements for Decommissioning the West Valley Site, May 2003 [130 kb PDF] was not incorporated by NYSERDA into the State's legislative proposal.
(page at http://westvalleyfactsofwny.org/WVRA-eval.htm)