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

Mr. James Owendoff
Deputy Assistant Secretary for
Environmental Restoration
U.S. Department of Energy
1000 Independence Ave
Washington, D.C.  20585                                  September 28, 1996

Dear Mr. Owendoff:

     As you know, FACTS is a community coalition of stakeholders
participating in the environmental review process that is required to
support a final remediation plan decision for the Tonawanda, NY FUSRAP
Site.  We are composed of and represent health, environmental, labor, and
academic interests in the Tonawanda community.  

     Since the "suspension" in April 1994 of the integrated NEPA/CERCLA
environmental impact statement (EIS) review process (specified by the April
11, 1988 Notice of Intent), completion of said process with a Record of
Decision (ROD) being required by law before any "final" remediation of the
Tonawanda Site can occur, officials of the Department of Energy (DOE) have
made, and frequently reaffirmed, two commitments to all Tonawanda

     1) "that the new decision process will be open and that the Department
will give every opportunity to those who wish to participate." (Richard
Guimond, Principal Deputy Assistant Secretary for Environmental Management,
December 7, 1994), and

     2) that the final cleanup plan (i.e. ROD) implemented by DOE must have
the approval of the Tonawanda stakeholder community (Guimond, former
Assistant Secretary for Environmental Management Thomas Grumbly, Site
Manager Ronald Kirk, and others, on numerous occasions).

     The purposes of this letter are:

1) to identify the major unresolved remediation issues,

2) to document the occurrence of a serious violation of the first

3) to determine the current status of the soil pile and material from the
demolition of Building 38 as a result of the Linde/Praxair "interim"
actions, and
4) to clearly outline those actions which will violate the second
commitment and the prescribed NEPA/CERCLA EIS review process.

     In August 1995 Congressman John LaFalce announced that DOE would
perform "interim" cleanup actions at the Linde/Praxair property.  Prior to
this announcement, DOE had not held any public meetings of all interested
Tonawanda stakeholders where the appropriate order for cleanup of the
several properties making up the Tonawanda Site was discussed and agreed

     We questioned the wisdom and legality of these "interim" actions since
agreement between the Tonawanda stakeholder community and DOE on major
remediation issues (see below) has not been reached.  Agreement on these
issues is required, not only by DOE's commitments to the Tonawanda
stakeholder community, but also by the NEPA/CERCLA EIS review process which
must culminate in a ROD prescribing the selected final cleanup plan
before any final remediation actions can be implemented.  We pointed
this out in an August 7, 1995 press release (a copy was sent to Thomas
Grumbly) and at an October 23, 1995 meeting with Thomas Grumbly arranged by
Congressman LaFalce (see FACTS October 24, 1995 letter to Thomas Grumbly).
At that meeting we also questioned the selection of the Linde/Praxair
property for "interim" cleanup, in view of an expected increase in FUSRAP
radon gas release from the contaminated Niagara Landfill (Seaway property)
following the upcoming start-up of a Browning Ferris Industries active gas
extraction/cogenerator project at that property (which is now operating
despite intense community opposition).  We later pointed out that an April
1994 DOE planning document called for cleanup of the most heavily contami-
nated Ashland 1 property first, by the end of fiscal year (FY) 1995, with
Ashland 2 to follow in FY 1996 and the Seaway and Linde properties
scheduled last, for FY 1997 through FY 2000 (see pp 5-6, January 1996 FACTS

The major unresolved remediation issues are:
     1) the validity of DOE assumptions that severe restrictions on land
use (e.g., limited-exposure industrial and open space uses) can be placed
in the deeds to these private properties* and that

* Placement of deed restrictions in effect gives legal substance to a
taking of property value that, a) started when the Haist property (Ashland
1) was improperly sold, i.e. without disclosing and licensing the 8,000
tons of Manhattan Project wastes present, to Ashland Oil Company at full
market value ($56,000) in 1960 after DOE's predecessor agency, the Atomic
Energy Commission (AEC) had determined that the cost of decontaminating the
property exceeded its market value ("Historical Summary and Summary of the
DOE Authority Review for the Seaway Industrial Park, Tonawanda, New York")
and b) continued in subsequent years, as both federal and state regulatory
authorities allowed these nuclear wastes to be spread to at least 3 other
properties, even as recently as 1982, two years after the Linde property
had been designated for cleanup by DOE.

these restrictions can be expected to be upheld indefinitely (see 10 CFR
Part 61.59), thereby keeping the level of radiation doses received by
future site users below a yet-to-be-agreed-upon limit;

     2) the determination of this limit on residual radiation doses
following cleanup which may be delivered to future users of the site
properties, i.e. whether the "to be considered" (TBC) New York State
Department of Environmental Conservation (NYSDEC) TAGM-4003 radiation dose
limit (10 millirems per year above background) or the ten-times less
protective (100 millirems per year above background) federal guideline (DOE
Order 5400.5) will be used to derive the contaminant cleanup levels; and

     3) selection of the best long-term storage site for the removed wastes
(see FACTS' June 2, 1996 letter to Vice President Gore and FACTS' Comments
on Colonie Site EE/CA, October 20, 1995).

First Commitment Broken
     On August 6, 1996 you and other DOE officials announced a final
cleanup plan for the Tonawanda Site during a meeting held by Congressman
John LaFalce (de facto leader of CANiT [Coalition Against Nuclear materials
in Tonawanda], a small group of area politicians) at his Buffalo office. 
CANiT and FACTS are the two community stakeholder groups identified by DOE
(see Table 1.2, "Stakeholders at the Tonawanda Site", in "Management Action
Process Document for the Tonawanda, New York FUSRAP Site, May 1996"). 
FACTS was not informed of this meeting and, therefore, had no representa-
tion at the meeting.  In addition, other stakeholders identified in this
table have told us they were not notified of this meeting.  However, a few
members of CANiT were present.

     Significantly, this announcement follows a long period of time during
which DOE has not convened any public meetings of all recognized
stakeholders for the purpose of discussing the outstanding issues and
developing a final remediation plan that is mutually acceptable to DOE and
all participating Tonawanda stakeholders.  In fact, there have been no such
inclusive public meetings since the last working session was held by
DOE on February 28, 1994.  Since then, we and other participating stakehol-
ders have repeatedly expressed displeasure with DOE's evident unwillingness
to respond to information requests and to engage in meaningful, direct
dialog (see July 19, 1996 letter [the latest of several] to Congressman
John LaFalce from George B. Melrose, Chair Tonawanda Commission for
Conservation of the Environment; FACTS' October 24, 1995 letter to Thomas
Grumbly;, FACTS' September 27, 1995 letter to Cynthia Kelly, Director of
DOE's Office of Public Accountability; FACTS' September 10, 1995 letter to
DOE Secretary O'Leary; and FACTS' June 2, 1996 letter to Vice President
Albert Gore; among others).

     Why did DOE not inform all stakeholders of the August 6 meeting?  The
coalition of community stakeholder interests we represent views this latest
development as a serious violation of DOE's commitment to involve all
stakeholders in the remedy selection process.

     In addition, any action taken to advance the announced plan, as
we currently understand it**, without first resolving, in an open
fashion with the participation of all interested stakeholders including
FACTS, the outstanding remediation issues identified above, will be viewed
as a violation of both DOE's second commitment and the prescribed
NEPA/CERCLA EIS review process.

     The August 6 joint announcement by DOE/CANiT leadership strongly
suggests that secret meetings are taking place between the DOE and the few
active members of CANiT.  Is DOE looking for a political solution or does
DOE intend to restore the promised open discussion process that includes
all interested stakeholders who wish to contribute to a reasoned resolution
of the remaining major remediation issues?

Status of Linde/Praxair EE/CA "interim" actions?
     Site Manager Ron Kirk was present at the June 18, 1996 public meeting
of CANiT.  He described recent developments in continued "interim" actions
at the Linde/Praxair property.  He indicated that Building 38 was being
demolished and the soil pile was being radiologically sampled; that
[contrary to information presented in the EE/CA] results of that sampling
showed most of the soil to have contaminant concentrations below the
contaminant cleanup levels proposed by DOE for final remediation;
that this pile would be removed in sections to Building 30 and separated
into portions that are above the DOE-proposed contaminant cleanup levels,
to be held for shipment to the Envirocare of Utah, Inc. disposal facility,
and so-called "clean" portions, to be used as backfill on the property.

     Activities such as backfilling, grading and re-grading are actions
that will dilute the concentration of contaminants in so-called "clean"
materials if mixing of more concentrated onsite materials with lower
concentration onsite materials or with truly clean imported materials
occurs.  Since agreement with the stakeholder community has not been
reached regarding appropriate final contaminant cleanup levels and such
agreement recorded in the form of a ROD, any disposition of so-called
"clean" material that results in a dilution of contaminant concentrations
(which we will view as irreversible) will be a violation of the prescribed
NEPA/CERCLA EIS review process.

** According to the Buffalo News, the plan calls for removal of only
115,200 cubic yards of the 366,000 cubic yards of waste previously
identified in the FS/PP-EIS documents as being above the DOE-proposed
cleanup levels for unrestricted re-use of these private properties.  This
reduced cleanup volume is apparently based on: 
1) cleaning up only three of the four properties; the 117,000 cubic yards
of waste improperly dumped in the Niagara Landfill property are to be left
there, and 
2) limited cleanup of the remaining three properties to allow only
specified restricted re-uses of these private properties, and then, only
under a federal residual radiation exposure guideline that is ten-times
less protective than New York's radiation cleanup guideline, NYSDEC's TAGM-

     Has any such disposition yet been made of any so-called "clean"
material, either from the soil pile or the demolition of Building 38?  Does
DOE intend to hold so-called "clean" materials segregated in the course of
any "interim" actions pending resolution of the major outstanding
remediation issues identified by us above, and by NYSDEC in its February
23, 1996 comments on the EE/CA (page A-14 of the corresponding DOE
Responsiveness Summary, May 1996)?
     We look forward to a prompt response from DOE to our questions.  We
need to see both DOE's promised stakeholder participation process and the
Tonawanda Site NEPA/CERCLA EIS review process move forward properly, but
without undue delay. 


                                   James Rauch

cc:  C. Borgstrom, DOE   
     J. Bartlett, NRC
     R. Hargrove, EPA
     N. Nosenchuck, NYSDEC
     W. Helmer, NYS AGO
     J. LaFalce, U.S. House of Rep.
     D. Moynihan, U.S. Senate
     A. D'Amato, U.S. Senate

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