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


Dave Adler
NY FUSRAP Site Manager
U.S. Department of Energy
Oak Ridge Operations Office
PO Box 2001
Oak Ridge, TN  37831                                          March 4, 1997

Dear Mr. Adler:

     The purposes of this letter are: to record the points that we each made
and to reiterate the list of information requests that I made during our
telephone conversations of January 22 and February 19, 1997, to report that
the subsequent response to these information requests has been unsatisfactory
to date, to further respond to your new points, and to make specific requests
for action, including a full explanation of DOE's illegal disposal of debris
from the demolition of Building 38 at the Linde/Praxair property.

     On January 22, 1997 you called and said you were the new Site Manager
for the Tonawanda, NY FUSRAP Site and that you were responding to my previous
attempts of January 15 and 17 to speak with acting FUSRAP Project Manager
Bill Seay.  I made the following points:
1)   The site-wide final cleanup proposal put forward on August 6, 1996 at
Congressman John LaFalce's Buffalo office, as described in the August 7, 1996
Buffalo News, is unacceptable to us.  I referred you to our September 28,
1996 letter to DOE's James Owendoff.  You said you were unaware of it.  I
briefly summarized the letter as follows:
a) there have been no public meetings by DOE with all stakeholders since June
18, 1996 to discuss the major unresolved issues, most notably the determina-
tion of what, in reality, are the minimum lawful and community-acceptable
final cleanup criteria; and
b) neither F.A.C.T.S. nor the public was notified of the August 6, 1996
meeting; and so
c) we view this meeting as a serious breech of DOE's commitment to provide an
open environmental review decisionmaking process, accessible to all stake-
holders and interested members of the community; and
d) I outlined the three major unresolved remediation issues set out in the
letter, and I specifically stated that we view any final disposition (other
than in an NRC-licensed disposal facility) of any material resulting from the
"interim actions" to be illegal.

2)   I said that DOE was obligated to give us the details of the August 6,
1996 proposal, which was drawn up by LaFalce staffers and DOE (according to
letters we just received from you).  We have still not been given the details
of this proposal as they were presented.  There were many details according
to the confused Buffalo News reporter who wrote the story.

3)   I said that a supplemental FS/DEIS, fully describing the new proposal
and comparing it to the existing FS/DEIS alternatives (with the same level of
detail and analysis), must be produced and subjected to a new public hearing
process of at least 45 to 60 days.

You said you would obtain and review our letter to Mr. Owendoff and asked
what else you could do to help.

4)   I said we had found it difficult or impossible to obtain from the
previous Site Manager, Mr. Kirk, several items of site-related information
necessary for our meaningful participation in the prescribed environmental
review process for Tonawanda, even through properly-executed FOIA requests. 
We had experienced delays of up to six months.  You said that was unfortunate
and inquired about our previous requests and any new items we sought.

     Regarding previous requests, I indicated that: a) an appealed request
(VFA-0227) was still deficient; b) our request for the contracts between MED
and Linde (item 1 of our November 23, 1996 request [OR-209]) had not been
met; c) the site-specific cleanup criteria "supplement" for the Tonawanda
Site (referred to in the FS/DEIS package, and item 2 of OR-209) had not been
supplied, however, a new document entitled "Second Draft, Radionuclide
Cleanup Guideline Derivation for Ashland 1, Ashland 2, and Seaway, Tonawanda,
New York, November 1996", of which we were previously unaware, had been
supplied.  I gave you the exact title of the draft FS/EIS "supplement"
sought: "Yu, C., Peterson, J.M., Yuan,Y., Derivation of Uranium Residual
Radioactive Material Guidelines for the Ashland 1 and 2 Sites, Argonne
National Laboratory, August 1988", as obtained from the list of references in
the supplied "Second Draft" document.  You said that you would personally
contact the Oak Ridge FOIA officer, Ms. Amy Rothrock, and attempt to expedite
the release of all of this information to us.  To date, none of this informa-
tion has been supplied.

     I also asked for a copy of the BNI radiological survey referred to in
the November 1996 EE/CA, and a copy of the St. Louis task force's report.  We
have been sent the BNI survey data, minus the obviously necessary reference
diagram(s) to locate the data.  Ms. Rothrock currently has our follow-up
request for this.  The St. Louis report has been obtained directly from DOE's
St. Louis information office.

5)   Since our January 22 conversation, we sent a FOIA request, on February
5, 1997, requesting copies of the Linde contracts to NARA's Ms. Mary Roman as
instructed by Ms. Rothrock in her response on OR-209: "The responsive records
were transferred to the custody of the National Archives and Records Adminis-
tration (NARA), History Division at Germantown, Maryland.  You may obtain
access to those records by contacting Ms. Mary Roman, Seventeenth Street &
Pennsylvania Avenue, NW, Washington, DC 20408."  The NARA response, February
20, 1997 (NW97-101), came from Cary Conn of NARA's Access and FOIA Staff at
College Park, MD and indicates that the College Park location does not
have the contracts sought, suggests that the records sought are at the NARA
branch in Atlanta, Georgia and then recommends further contact with Ms.
Rothrock to determine the address of "DOE's [emphasis added] History
Division at Germantown, Maryland.  Ms. Mary Roman is a member of the National
Archives Staff, who deals with FOIA matters, but has no direct relationship
with a response to your request.  The address for (NARA) in downtown
Washington is Seventh Street & ... ."

     On February 4, 1997 our attorney submitted another information request
to Ms. Rothrock (OR 97-021).  As usual, we requested a waiver of all fees for
the reasons outlined in my April 12, 1995 letter to Ms. Rothrock and in
Robert J. Rauch's November 23, 1996 request on behalf of F.A.C.T.S.  In the
past, all of our requests have been granted fee waivers, although not all of
the information requested has been provided.  Two days later, on February 6,
1997, Ms. Rothrock replied that our request "initially falls under commer-
cial" and she requested "willingness to pay or a new justification from you
rather than James Rauch.  Please reply no later than February 27, 1997."  

     We find DOE's responses to each of these recent information requests to
be unsatisfactory and very troubling.  Since you appear not be fully informed
as to who we are, I will briefly summarize.  The F.A.C.T.S. staff consists of
myself, Don Finch, and Ralph Krieger.  I am a pharmacist with a longstanding
interest in promoting and protecting public health.  I have participated in
several public review processes dating back to the 1970s, and have commented
in detail on the DEISs for the Niagara Falls Storage Site, the West Valley
site, and the Tonawanda Site.  Don Finch is a retired Linde/Praxair employee,
Korean War veteran, and editor of our newsletter.  Ralph Krieger is a Praxair
employee and President of Local 8-215, OCAW.  F.A.C.T.S. is a non-profit,
public interest, educational/environmental NGO that has been recognized by
DOE as a "community coalition" stakeholder at the Tonawanda Site.  As you
must know, meaningful public participation in the environmental review
process, as prescribed by NEPA, requires that information pertinent to the
review process be disclosed in a timely fashion.  The information we have
sought is pertinent to the Tonawanda review and no one within F.A.C.T.S. has
any commercial interest whatsoever in the information we have sought.  We ask
that you promptly rectify this problem of access to site-related imformation.

6)   Your second call, on February 19, followed a conversation I had earlier
that day with Arleen in the Tonawanda Information Center regarding an EMAB
committee report that one of us had just received.  I informed you that the
we and other members of the Tonawanda community (e.g., some CANiT politi-
cians) view the EMAB committee's work as not being a legitimate process
representative of local stakeholder values and as such it has no application
to Tonawanda's remedy selection process.  Immediately prior to my conversa-
tion with you I had spoken with CANiT's Mr. Raab and he confirmed this view
of the EMAB and reported that CANiT had not received a copy of the report nor
had they had any contact with the EMAB for almost two years.  This view is
also held by stakeholders at the New Jersey FUSRAP sites; in fact, they
picketed the EMAB meeting in Secaucus, NJ.

7)   I again made it known that site-related information essential to the
public review process was not being made available and again asked for the
details of the August 6, 1996 proposal.  You said there was no definite
proposal, just agreement on several "concepts" (as noted above we just
received copies of letters from James Owendoff to Congressman LaFalce
outlining these concepts).  I asked what the relationship was between the
derivation of the thorium cleanup criterion given in the November 1996
"supplement" which we had just received and the "proposal".  I objected
strenuously to both the derivation of the 40 pCi/g thorium-230 cleanup
criterion and the idea of "soil blending" implied by the derivation.  You
were vague and said that "soil blending" had been looked at but that it was
not necessarily a viable option.  I said blending was in effect dilution,
which is anathema to sound waste management.

8)   I asked you to confirm that no final disposition had been made of any
material resulting from the ongoing "interim actions".  I referred to the
November 7, 1996 response from John Baublitz (for James Owendoff) to our
September 28, 1996 letter to Mr. Owendoff in which it is stated that the
"Department will continue to store clean material onsite at the Praxair
facility until a site-wide remedy is selected."  You then said that so-called
"clean" debris from the demolition last summer of Building 38 had been
disposed of in a local solid waste landfill.  You said you did not know which
landfill but that you would find out and let us know.  You have not let us
know.  I said that such final disposition was illegal, a violation of NRC
regs.  You did not disagree.

     You said that the "clean" debris was anything below 60 pCi/g uranium and
the 5/15 pCi/g for radium and thorium (it was not clear which, 5 or 15 pCi/g
was applied).  You said that the NYS Department of Environmental Conservation
approved these criteria and agreed to this "disposal" action "as long as the
landfill's radioactive [detector's] alarms do not go off."

9)   I said that the procurement process for decontamination of the buildings
appeared to be very poor.  I said we had just obtained information (the day
before, from a third party) that at least one episode of workers being
exposed to airborne lead above the permissible levels had occurred during the
first subcontract attempt to decontaminate Building 14.  I indicated that,
according to the partial documentation we had received, the request for bids
on decontamination of Building 14 specifies decontamination criteria that do
not meet the requirements of the U.S. Nuclear Regulatory Commission (please
refer to the answer to bidder's question 11: "This is not a radium site", and
the 1976 ORNL survey report for the Linde property wherein ORNL experts
recommend decontamination to the fiftyfold more stringent radium decontam-
ination criteria).

10)  Also on February 19, Pat Griffin, the Bechtel Project Manager, called me
at your request.  He asked if there was anything he could do in the way of
providing information.  I asked for copies of all the Requests for Proposals
for all "interim actions" to date.  To date, not a page has been supplied.

     In conclusion, we make the following points:

A)   Your initially-professed interest in restoring the legitimate environ-
mental review/public participation process that DOE committed itself to years
ago and the personal commitments that you made to provide the pertinent site-
related information identified above now appear to be hollow.  If this is in
fact true, we will not be surprised.  On the other hand, we do not want to be
hasty in our judgement.  Perhaps DOE leadership is taking the issues we have
raised seriously.  Perhaps a legitimate process will be opened up, and the
essential pertinent information will be provided, to us and to all interested
stakeholders.

B)   Your revelation that so-called "clean" radioactive debris from Building
38 has been "disposed of in a local landfill" is very disturbing.  If this is
true, we request that DOE provide us with complete documentation of this
transfer, including when it occurred, the exact criteria and method used to
determine which material was "clean", how much material was transferred, and
where the material was taken.  We also request a full "chapter and verse"
explanation of DOE's legal basis, if any, for such a transfer.  

     We believe the offsite "disposal" of such material anywhere except in an
NRC-licensed facility is a clearly illegal act.  The NRC licensing regula-
tions for both source materials and byproduct materials do not grant
exemptions from licensing for the disposal of de minimis (i.e. below
regulatory concern) amounts or concentrations of these materials.  In 10 CFR
40.13(a) the exemption for materials that contains less than 0.05% source
material by weight is clearly given only to the extent than a person
"receives, possesses, uses, transfers, or delivers source material".  The
exemption does not cover disposal of source material.  Similarly for
byproduct material, 10 CFR 30.14(a) establishes an exemption that does not
include disposal of the radioactive material.  NRC's intent not to establish
a de minimis level for disposal of these materials is clearly stated in 10
CFR 30.14(d): "No person may introduce byproduct material into a product or
material knowing or having reason to believe that it will be transferred to
persons exempt under this section or equivalent regulations of an Agreement
State... ."

C)   Furthermore, it is our legal opinion that NRC must approve any onsite
activities, whether "interim" or final remediation, such as "blending", that
may result in the generation of materials with diluted waste concentrations
or the segregation of so-called "clean" material if DOE's intended final
remediation plan involves keeping these materials onsite.

D)   If the transfer had already occurred when Mr. Owendoff sent the November
7, 1996 letter to us, we do not know why he claimed in that letter that DOE
was holding such materials until a site-wide remedy was selected.   We
request that DOE tell us the reason(s) why this statement was made.  Has any
other so-called "clean" material from any other "interim actions" at the
Linde/Praxair property been so "disposed"?  If so, we request that you
provide the documentation, in the detail described above, of any and all such
"disposal".

E)   Our third party source has informed us that a subcontract in the amount
of approximately $6 million has been let for a second attempt at decontami-
nating Building 14.  We note that CANiT was unaware of this fact as of
February 19, 1997 (my telephone conversation with Mr. Raab on February 19,
1997).  According to the Town of Tonawanda tax office, this building is
assessed for $322,000.  We do not understand why decontamination of this
presumably fully-depreciated building is again being attempted at a taxpayer
expense of well over twenty times its present assessed value.  We request a
full explanation of DOE's reasons for this course of action.  We also request
that DOE tell us the dollar cost of the first decontamination attempt.  The
1993 draft FS for the Tonawanda Site lists the cost of demolition of all four
Linde buildings at slightly over $1.5 million (p G-29, lines 2a, 2b, and 2c). 
We have repeatedly questioned the cost-effectiveness of decontamination
versus demolition (see our October 24, 1995 letter to Thomas Grumbly).

     We will expect a thorough reply to all the points raised in this letter.

                                   Sincerely,



                                   James Rauch




cc:  R. Bangart, NRC
     R. Hargrove, EPA
     J. Cahill, NYSDEC
     J. Sweeney, NYSDOL
     R. Tobe, ECDEP
     C. Borgstrom, DOE


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