The Buffalo District Army Corps of Engineers (USACE) issued its Record of Decision (ROD) for Linde site groundwater, December, 2006 (signed January 29, 2007). The decision came two years after F.A.C.T.S.' submitted comments (see below) on USACE's Feasibility Study Report for the Groundwater Operable Unit, Linde Site, Tonawanda, NY," dated October 2004. This Corps self-described, "limited" CERCLA report is the result of a seriously deficient hydrogeologic sampling and characterization effort for such a significant groundwater contamination event. This superficial study does not satisfy the requirements of CERCLA, let alone NEPA.
The Corps' simply restated its original position for managing Linde groundwater contamination: there will be no attempt to recover the large quantities of total uranium (~12,000 pounds or 3.7 Curies), radium (~5.5 Curies), thorium (unspecified), and other heavy metals, including mercury, molybdenum, and chromium contained in an estimated 55 million gallons of liquid wastes that were illegally pumped down seven onsite wells into the glacial till/bedrock contact zone during Manhattan Project operations at Linde in the 1940s (see discussion in the Federal Connection report starting at this PDF file's page 145 and Exhibits 3 through 8 in the Appendix to the Federal Connection.)
Radioactive waste cleanup regulations and public health laws have mandated much more thorough remediation of radioactive wastes at the Linde site than the Army Corps has performed. The Pataki administration and both Attorney General and Governor Eliot Spitzer failed miserably to enforce these laws after Army Corps issued its 2000 Linde ROD that contained the illegal, nationally-criticized soil cleanup criteria -- see "Army Improperly Selects Cleanup Criteria," and Washington Post article. And in 1998 no action was taken to prevent Army Corps' implementation of the deficient 40 pCi/g thorium guideline at the Ashland properties. See F.A.C.T.S.' federal district court complaint.
F.A.C.T.S.' Comments on the Study :
January 26, 2005
Mr. Ray Pilon
Buffalo District U.S. Army Corps of Engineers
1776 Niagara Street
Buffalo, NY 14207-3199
Subject: Comments on Feasibility Study for the Linde Groundwater Operable Unit
Dear Mr. Pilon:
F.A.C.T.S.' comments on the Linde groundwater feasibility study are the following:
1) Linde deep groundwater meets the 40 CFR 192 definition of an aquifer. Exceedances of the groundwater standards have been found. Development and execution of a remediation plan is required under this law.
2) (a) Even the limited sampling of monitoring wells reveals concentrations of uranium, radium, chromium, mercury, and molybdenum that exceed the limits of the Corps' chosen ARAR -- 40 CFR Part 192, Subpart A -- and well above the more stringent NYS groundwater protection standards, 6 NYCRR Parts 730-733.
(b) The 5.4 pCi/L radium exceedance found in new well LMW-05 (located at a distance of ~1200 feet from the injection wells) is particularly troubling as this well is located less than 200 feet from the Holmes Elementary School property. This finding underscores the likelihood that radium exceedances currently exist in groundwater beyond the Praxair property line -- see previous comment 18 below, made 11 years ago, warning of greater radium mobility -- and reflects the failure to develop and execute a timely corrective action plan.
3) 40 CFR Part 192, Subparts A and D are ARARs at the Linde site because this site was licensed prior to UMTRCA by NYS (see F.A.C.T.S.' 3-3-97 letter to NYS DOL Commissioner Sweeney), therefore Subpart D is an applicable ARAR. Specifically Sections 192.02(c), 192.03, 192.04, and Sections 192.30 et seq., clearly require the development of an active groundwater remediation alternative at Linde. The Corps has not done this.
Only groundwaters having a natural total dissolved solids (TDS) level above 10,000 mg/L may be exempted. TDS in the Linde groundwater is well below this level. And an exemption for Linde groundwater has not been sought. Yet the Corps brashly cites high TDS and salts content of the deep groundwater as the reason for not executing a thorough investigation and remediation. The Corps is plainly wrong here. The Corps further rationalizes about the relatively low yield of the shallow groundwater, and the current availability of a public water system (another institutional longevity issue -- see comment 7 below) as factors in its decision to limit the study and to not evaluate various proven groundwater remediation techniques.
4) The Corps has incorrectly determined that the federal and more stringent NY State drinking water laws intended to prevent degradation of aquifers are not applicable. In the past, area wells have supplied water for multiple uses, including drinking water. The NYS standards are appropriate and relevant ARARs for remediation of this site -- see previous comment 13 below.
5) The Corps has incorrectly selected (simply for immediate legal convenience) the fence line of the Praxair property as the point for determining compliance with the groundwater contamination limits. The law defines the (vertical) point of compliance as the edge of the disposal area. In this case the edge of the disposal area should be a short radius from each injection well; DOE has said (in the 1992 Remedial Investigation Report) the effluent mostly precipitated in close proximity to the wells. Years from now, as the contamination plume continues to extend off-site, presumably the Corps will contact off-site property owners as it redefines the point of compliance in order to satisfy 40 CFR 192.
6) The Corps plans to use some form of federal institutional control in an attempt to limit exposure to this waste. Rather than place actual deed restrictions on the Praxair property as a whole, the Corps intends to acquire easements for access to 14 small plots (24' x 24') on the Praxair property upon which groundwater monitoring stations are to be operated. The report's proposed land use control (LUC) wording is not clear. It seems there may not be effective, deeded control of groundwater use on the overall site itself. There will be no control whatsoever on adjacent properties.
7) CERCLA requires any selected remedy to be effective for a minimum of two hundred years, and no longer than 1000 years. Most independent radwaste experts agree that for the management of long-lived radioactive wastes it is very unwise to assume the persistence of governments (and therefore institutional controls) for periods longer than 100 years. In fact, the NRC's LLRW (low-level radioactive waste) dump siting regulations, 10 CFR 61, specifically forbid reliance on any form of institutional control as a means to limit human exposure to waste for periods greater than 100 years. Thus, the Army Corps' proposal is inconsistent with the reasoned policy of a radioactive waste control law promulgated under a NEPA process with broad public participation
8) No thorough evaluation was made of the chemical environments in the injection zones; such information is essential to determine the chemical form, solubility, and mobility potential of heavy metals, notably uranium. The conclusions made by the Corps are simply assumptions.
9) Sampling : The number of sampling wells is insufficient. No wells were located to the SE of the injection wells, a direction shown to be downgradient. No samples were collected from the more permeable gravelly sand layer directly overlying the bedrock surface; this layer has a higher flow velocity and likely was a significant portion of the injection zone.
10) Background monitoring station used to set background contaminant levels : the onsite location is too close to injection sites. Background points should be well upgradient (see previous comment 48 below) and in this case certainly off-site (previously ORAU used a site over a mile away), especially given the Corps' improperly selected Praxair fence-line point of compliance. While Linde/Union Carbide/Praxair have been cooperative participants in government malfeasance at this site from the very beginning, Army Corps clearly wishes to avoid possible legal entanglements with other adjacent property owners resulting from the siting of monitoring wells on their properties.
11) 40 CFR 192 requires the timely execution of a remediation plan and/or the commencement of a corrective no later than 18 months after a finding of exceedance of contaminant levels. The RI performed by Bechtel in 1991 found radium water samples above the 5 pCi/L radium standard. In previous comments F.A.C.T.S. pointed this out and requested a corrective action be commenced (see previous comment 13 below).
12) The reported 0.52 Curies of radium is an arbitrary estimate by Army Corps. It is not supported by evidence, and therefore is not valid. The 5.5 Curies of radium derived from the operating limits of the Ceramics Plant represents a more conservative, and likely more accurate, approximation of the amount of radium injected underground. Similarly, the actual mass of total uranium injected according to Aerospace (1981) was ~3.7 Curies, or 12,000 pounds.
Resubmission of previous, pertinent public review process comments:
F.A.C.T.S. comments on "Proposed Plan for the Ashland 1 and Ashland 2 Sites, Tonawanda, New York, November 1997, Final, USACE/OR/21950-1029", January 20, 1998
9) We think the U.S. Nuclear Regulatory Commission (NRC) is the agency responsible for regulating the management and disposition of all the MED/AEC 11.e.(2) byproduct materials present at the Tonawanda Site properties. Title II of the Uranium Mill Tailings Radiation Control Act of 1978 (UMTRCA), which amends the Atomic Energy Act of 1954 (AEA), specifically directs the U.S. Nuclear Regulatory Commission (NRC) to control the management of any 11.e.(2) byproduct materials. This includes such materials located at inactive uranium mill tailings sites such as the Tonawanda Site.
13) With respect to 40 CFR 192 Sec. 192.33 "Corrective action programs," in my comments on the draft RI/FS-EIS (see comment 31, reference 3), I said that water from well B29W09D at Linde contained radium-226 in concentrations exceeding the EPA drinking water standard of 5 picoCuries/liter [pCi/g] (draft RI pp 4-216, 4-217, 7-18) and I called for further evaluation of groundwater impacts and the identification of potential remediation techniques. In response, DOE maintained that, since groundwater in the area is not currently used for drinking water, drinking water guidelines are not applicable. However, according to NYS DEC, "(a)ll fresh groundwater in the State is classified as GA, with an intended best usage as a source of drinking water ... regardless of its current use." (see pp 24 and 25 of enclosure to reference 4) Section 192.33 requires that a corrective action program "be put into operation as soon as is practicable, and in no event later than eighteen (18) months after a finding of exceedance." To our knowledge, no such action has been taken. Why not?
Comments on RI/FS-EIS for the Tonawanda, NY FUSRAP Site, 2-10-94, James M. Rauch
18) Pg 3-35 : Unconsolidated material: The varved lacustrine clay is described as "very thin locally", for example, three feet thick at bore hole B55G48 at the southern end of Seaway. The possibility of discontinuity in this layer at Seaway cannot be discounted. Discontinuities do occur at Ashland 1 and 2. When coupled with desiccation cracking of the clay unit, piping of particles (approximately 1 foot/day, pg 3-46), sand lenses in the overlying till and zones of fine-grained sands in the underlying glaciolacustrine unit which have higher hydraulic conductivity, the route to the contact zone aquifer may be complete. Over the long term, DOE scenarios ruling out this pathway are not justified. In fact, DOE does not adequately address long-term groundwater impacts either here or at the Linde injection wells or the properties in general.
19) Pg 3-40 : Geochemical Properties of Soil: Table 3-5 lists uranium distribution ratios (Kd) determined from soil samples collected at Ashland 1 and 2. The varved clay is characterized by only one sample. This table has entries for which no Kd values are given. Were these samples not analyzed? Based on this data, which ranged from 5 to 29 (cm3/g), an average value of 10 was selected. Despite the fact that Kd values are contaminant-specific, site-specific Kds were not determined for Ra-226 or Th-230. A review of the distribution coefficient data (distribution coefficient closely approximates distribution ratio) in Table 5-1 (pg 5-35) reveals considerable variability in this important parameter. For example, Gee et al. l980 reported a Kd for U-238 at pH 7.7 of 23,000 (cm3/g), while Rancon l973 reported a value of 100 (at pH 8), a difference of approximately two and a half orders of magnitude. Most significantly, Gee reports a Kd of 2400 for Ra-226 at pH 7.7, a value roughly ten times smaller than that of U-238 at pH 7.7. This may reasonably be interpreted as an indication that the Kd of Ra-226 at Tonawanda is approximately l cm3/g. Erroneous Kd values (too large) will seriously underestimate radionuclide mobility. Anionic composition of the radionuclides is not given. Table 5-4 indicates moderately high solubility for both radium nitrate and thorium sulfate. Based on this data and data in Table 5-2, thorium mobility may be underestimated, and radium mobility is likely to be greater than, not less than, that of uranium.
20) Pg 3-40 : Measured cation exchange capacities for the till, varved clay, and glaciolacustrine deposits show considerable variability, from 30 to 485 meq/100g. It is unclear whether each of the three ranges given results from samples from all three soil units or if each range applies to one each of the soil units; it is also stated that these results are being verified. Please explain. Is it not realistic to expect this range of non-uniformity across the soil types? Since this exchange capacity is an important parameter in determining the mobility of the radionuclides, assumptions made here may introduce a ten-fold error.
29) Pg 4-83 : Nature and Extent of Contamination in Groundwater: At a meeting last winter at the Tonawanda office, in response to questions concerning the fate of the effluent injected into the Linde wells and possible remediation, Site Manager Ron Kirk said that the injected effluent was "gone", implying there was nothing to remediate. An opposite conclusion based on numerous assumptions is presented in section 4.3. The suggestion (pg 4-28) that injected effluent remains confined to a limited injection zone is not adequately supported by results from just two offset wells. Because "no detailed chemical analysis is available for the effluents disposed of by injection" (pg 4-89), it is impossible to accurately determine the extent of precipitate formation. The fact that an offset bore hole #1 core showed 176 pCi/g of U-238 and 1.3 pCi/g of Ra-226 (pg 428), when compared with an estimated 3 Ci of uranium and 5.5 Ci of Ra-226 injected, may indicate migration of radium. The injection scenario remains obscure. It is suggested that the effluent plume may have entered the glaciofluvial deposits and based on combined glaciofluvial (5.5 ft/yr) and Salina bedrock (24 ft/yr) groundwater flow velocities, it is further suggested that the area of contamination may extend laterally for 300 to 1200 feet (pg 4-87). The glaciofluvial estimate of flow velocity may be too low. Page 3-38 states that this unit is conservatively assumed to be composed of "coarse-grained materials (sand)", yet the 5.5 ft/yr estimate of groundwater velocity incorporates an estimate of hydraulic conductivity (lower) for silty sand (pg 3-53). (Contact-zone groundwater velocity at Seaway was estimated at 82 ft/yr.) Page 4-87 indicates that analysis of radiological and chemical contaminants in the contact-zone is being refined and will be included in a later technical memorandum. This is insufficient. The information presented in the RI does not adequately define the injected effluent or its fate, and the resulting long-term impacts. The purposes of NEPA review are not satisfied.
30) Pg 5-22 : Perched Groundwater System: The significance of lateral migration in the perched groundwater system may be seriously underestimated. Despite evidence of widespread heterogeneity in the composition of the till, water flow models are developed which emphasize the unlikelihood of contaminant migration to deeper aquifers (see comment 18) while tending to ignore the higher horizontal groundwater velocities (26 ft/yr, to 1049 ft/yr at Seaway) in the perched system. There are too few wells to characterize migration in this non-uniform till, therefore risk modeling for this exposure pathway is insufficient for the long term, especially considering the indefinite duration of the hazard.
31) Pg 7-5 : The conclusion is drawn that uranium concentrations in the groundwater are below the DOE DCG, ignoring the fact that a Ra-226 concentration in well B29W09D exceeded the DOE drinking water guideline of 5 pCi/l. This establishes the need for further analysis of groundwater impacts as well as the evaluation and presentation of potential remediation techniques. (See comments 29 and 50)
Baseline Risk Assessment comments:
48) Pg 2-3 : Background : The selection of Ashland 2 South for background soil levels is not representative of area-wide background as determined by ORAU (see comment 24). This biases the risk assessment process and results in underestimates. Selection of sampling well B29W05D at the southern boundary of Linde (located within 1000 feet of the injection wells) as the background location for groundwater may result in similar bias. While the well is supposedly upgradient from Linde, groundwater flow in the area is somewhat indeterminate. Both Wehran (1979) and Yager, Tepper, and Kappel ("Hydrogeology of the Niagara Falls Area - a Survey of the USGS Study" presented at the International Symposium on Groundwater Issues of the Lower Great Lakes, November 7-8, 1991) indicate that groundwater flow in the contact-zone aquifer is in a southerly direction. Wehran suggested the possibility that the southward flow is induced by the pumping of several large industrial wells located to the south.
50) Pg 2-18 : Table 2-2: In view of comments 31 and 48, Ra-226 should have been included as a groundwater contaminant of concern. It can be shown that 39 billion cubic feet of water would be required to dilute the estimated 5.5 Ci of Ra-226 which were injected into the Linde wells to the level of DOE's drinking water guideline of 5 pCi/liter. [Thirty-nine billion cubic feet translates into eight hundred ninety thousand acre-feet, a volume roughly one-tenth the surface area of Lake Erie to a depth of one foot.] In terms of the groundwater that has flowed past the injection wells in the last 50 years, rough calculations show that this flow is insufficient by at least a factor of 100 to dilute the Ra-226 activity to a level below the guideline.
52) Pg 3-15 : Identification of Exposure Pathways: Migration of contaminants through groundwater is not considered an exposure pathway because the affected aquifer is not considered potable. However, current use of area wells for lawn watering, etc., and potential future uses are ignored. Exclusion of this pathway from the risk analysis is not justified.
Ralph Krieger James Rauch
cc: Barbara Youngberg, NYS DEC
Paul Giardina, US EPA