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

                                                              March 3, 1997
John E. Sweeney
Commissioner
NYS Department of Labor
Building 12
State Office Building Campus
Albany, NY  12240

Subject:  State regulation of radioactive materials resulting from
          MED/AEC operations at the Linde/Praxair property

Dear Commissioner Sweeney:

     This letter is to inform you of mistakes which we believe the NYS
Department of Labor (NYSDOL) has made in its regulation of radioactive
materials licensee Linde/Praxair, Tonawanda, NY.  

Background
     The Linde/Praxair property was designated for decontamination by the
U.S. Department of Energy (DOE) as a result of a radiological survey
performed by Oak Ridge National Laboratory (ORNL) late in 1976 (see
"Radiological Survey of the Former Linde Uranium Refinery, Tonawanda, New
York, May 1978", DOE/EV 0005-5).  This survey (summary section enclosed)
found uranium contamination in quantities well in excess of both the
license-exempt amounts and the release limits for unrestricted use. 
Specifically:

     "radioactive contaminants on the indoor and outdoor surfaces in
     the area of former uranium operations include U-238 and Ra-226. 
     Concentrations of U-238 in soil samples were as high as 12,000
     pCi/g (3.6% uranium), and Ra-226 concentrations up to 813 pCi/g
     were measured.  ... Alpha contamination levels exceeded the NRC
     [U.S. Nuclear Regulatory Commission] limits for surfaces
     contaminated with Ra-226 in several areas in each of Buildings
     14, 30, and 38, and in small, isolated areas of Building 31. 
     Transferable beta contamination exceeded the NRC limit of 1000
     dpm/100 cm2 at some locations in Building 30.  Beta-gamma dose
     rates exceeded the NRC limits in several areas in each of
     Buildings 14,30, and 38, and in one large area on a wall in
     Building 37."

At that time, this uranium refinery contamination was defined as "source
materials".  Such materials, containing 0.05 percent or more by weight of
uranium (170 pCi or more of U-238 per gram), thorium, or any combination
thereof, required a license to possess, transfer or deliver.  The NRC
surface limits referred to are the federal limits on residual radioactive
contamination that must be met before a radioactive materials license may
be terminated or property subject to a license released for unrestricted
use.  The authors of this report recommended cleanup to the fiftyfold more
stringent alpha contamination limits for Ra-226 because in many of the
samples with elevated activities the activity of the Ra-226 approximated
that of the U-238.  Over 20 years ago, these experts regarded these
buildings as a "radium site".

     On June 18, 1996 we wrote to Dr. Karim Rimawi of the NYS Department of
Health expressing concern that the building decontamination "interim
actions" being performed by the DOE at the Linde/Praxair property, a part
of DOE's Tonawanda, NY Formerly Utilized MED/AEC (U.S. Army Manhattan
Engineer District/U.S. Atomic Energy Commission) Sites Remedial Action
Program Site, did not meet Health Department cleanup regulations.  Our
letter was referred to NYSDOL's  Principal Radiophysicist, Ms. Rita Aldrich
who replied on July 11, 1996 that Praxair does have a NYSDOL radioactive
materials license covering the DOE contamination, but that "legally, New
York State lacks jurisdiction over the contamination" and so "our
regulatory limits for residual contamination would not apply."   

     Information recently provided to us by NYSDOL in response to our
December 6, 1996 FOIL request (your File No. 96-0695):

   1) seems to contradict this: Following the ORNL survey, the U.S. Energy
Research and Development Administration (DOE's predecessor) called a
meeting with Linde and NYSDOL which was held on July 27, 1977 at the Linde
plant in Tonawanda, according to a July 29, 1977 letter from USERDA's
William T. Thornton to NYSDOL's Dr. Francis J. Bradley.  In that letter
(enclosed) Mr. Thornton states that NYSDOL "has regulatory jurisdiction
under agreement with USNRC for current Linde industrial operations
involving radioactive materials", that Dr. Bradley stated the State's
preference that all contaminated areas be cleaned by USERDA to unrestricted
use levels, but that recognizing this might not be immediately possible for
USERDA to accomplish, Dr. Bradley then requested that Linde amend its
existing license to include the contaminated buildings and the outdoor
areas where uranium or radium concentrations in the soil exceeded the
exempt levels described in State Code Rule 38 (0.05% by weight of uranium). 
After a discussion of the types of controls required (not described in the
letter), Linde agreed to control of the contaminated areas, which later
took the form of amendment No.4, issued on June 9, 1978, to NYSDOL License
No. 1983-0143;

and yet,
   2) also discloses that on July 11, 1996 NYSDOL issued Praxair an
amendment to License No. 1983-0143 deleting amendment No. 4 from the
license.  Ms. Aldrich's letter of the same date to Praxair's Mr. T. M.
Dugan explains that since remediation has begun, it is not appropriate to
continue listing the buildings on a Department license.

     This information causes us to make the following points:

     1) It is clear to us that the intended purpose of 10 CFR 20, 10 CFR
40, and State Code Rule 38 was (and is) to protect workers and others from
exposure to ionizing radiation above then-current limits.  Presumably this
was the reason that USERDA called the July 27, 1977 meeting, resulting in
the licensing of the MED/AEC contamination at the Linde property. 
[However, in retrospect, considering the in-the-works legislative and
regulatory developments --  The Uranium Mill Tailings Radiation Control Act
of 1978 (UMTRCA) and the UMTRCA amendments, NRC's strict new (November
1980) 10 CFR Part 40 and Part 40 Appendix A regs, and the role given the
DOE Secretary in designating Title I sites -- coupled with the apparent
later failure of NYS to retain regulatory authority over these materials
(see below), why the NRC was not invited and involved in this regulatory
matter may raise questions about one or more of the parties' intent. It
appears that Linde's State license gave DOE an excuse not to designate
Tonawanda into Title I.]

     2) Whether these lawful regulatory purposes were actually achieved, as
was claimed in DOE's November 1996 EE/CA (pages 6, 13, 14) is doubtful. 
Conversations with longtime plant employees suggest that the requirements
of Sections 38.12(4), 38.17, 38.27, 38.13 and 38.23 of State Code Rule 38
were not met.
 
     3) In our March 12, 1996 comments on the January 1996 EE/CA we
protested the decontamination of buildings according to DOE's [non-
promulgated] Order 5400.5 criteria.  We noted that state regulations were
more stringent [as provided for in 42 USC Section 2021.(o)].  We also
strenuously objected to the proposed recycling, or disposal at solid waste
landfills, of so-called "clean" (again, by DOE's proposed criteria)
materials from the demolition of Building 38.  We repeated this protest in
comment (2) of our December 20, 1996 comments on the November 1996 EE/CA,
where we cautioned that any such final disposition of any so-called "clean"
material prior to agreement by all stakeholders on final cleanup criteria
would be a violation of the prescribed NEPA/CERCLA EIS public review
process.

     We have also continuously raised this issue at the public meetings
held since DOE first publicly issued these proposals, the last such meeting
being on June 18, 1996 with DOE's Ron Kirk and NYSDEC's Paul Merges
present.  There have been no public meetings to discuss site remediation
since that date.  To our knowledge, NYSDOL has not been in attendance at
any of these public meetings, nor has NYSDOL commented upon either EE/CA. 
This, despite the existence, only discovered as a result of our recent FOIL
request, of License No. 1983-0143 covering the radioactive materials
involved in the subject "interim" cleanup actions.  We note that at several
of these public meetings last spring our inquiries concerning the state's
regulatory role were brushed aside by both Mr. Kirk and local politicians,
with assurances that these were only "interim actions", not final
remediation.

     4) We believe the October 15, 1962 State Agreement between the AEC and
New York State, gave NY State agencies the authority and responsibility to
control the MED/AEC wastes now contaminating several additional Tonawanda
properties, initially as "source material" and subsequently as "byproduct
material" after the enactment of the Uranium Mill Tailings Radiation
Control Act of 1978 (UMTRCA).  After November 8, 1981, the continuation of
such State authority requires that the State programs meet requirements
listed at 10 CFR 150.31.  If the State fails to meet these requirements, 
10 CFR 40.2(b) clearly requires NRC to regulate these materials.

     So, the pertinent question is: did NYSDOL establish and maintain a
program to meet these requirements?

     Ms. Aldrich firmly maintains that NYSDOL does not have "jurisdiction"
over these MED/AEC materials, we assume because New York State did not meet
the new procedural licensing and rulemaking requirements of 10 CFR
150.31(b), in particular, NYS did not establish and enforce standards for
the protection of the public health, safety, and the environment from
hazards associated with byproduct material which are equivalent, to the
extent practicable, or more stringent than, standards in the new Appendix A
of 10 CFR 40.  This certainly appears to be the case (supported by points 2
and 3 directly above, and the information supplied by NYSDOL if it is in
fact fully responsive to our December 6, 1996 FOIL request).  

     However, we continue to lack a reply to this question from NRC (see
our December 27, 1996 letter to Mr. Richard Bangart on this matter, copied
to Ms. Aldrich with enclosures: our comments on DOE's two EE/CAs for
"interim actions" at Praxair, and our September 28, 1996 letter to DOE's
James Owendoff).

     On February 19, 1997, during the writing of this letter, the new DOE
Site Manager informed us that so-called "clean" debris from the demolition
of Building 38 had been "disposed" in a local solid waste landfill,
apparently with NYSDEC's approval.  We were appalled by this news.  We
believe that such "disposal" is illegal.  We do not know the particulars:
where, when, what.  We are preparing a letter to DOE to get confirmation
and answers.

     And so, until NRC assumes its lawful regulatory responsibilities, we
must consider NYSDOL's deletion of amendment No. 4 from the Praxair license
to be an illegal act.  We say this because the removal of the amendment
constitutes a termination of the portion of the license covering the
MED/AEC contaminated buildings and soils.  Prior to any such termination,
compliance with the requirements of 12 NYCRR Part 38.23 must be certified.
     
     Therefore, in view of the foregoing, we ask NYSDOL to:

     1) take immediate steps to reinstate license control of all MED/AEC
materials at the Linde/Praxair property, including those previously covered
by amendment No. 4 to License No. 1983-0143,

     2) ensure that all DOE cleanup actions, including "interim actions",
at the Linde/Praxair property conform to the requirements of Title 12 NYCRR
Part 38, and

     3) obtain assurance from DOE that it will not proceed with any further
final disposition of so-called "clean" material resulting from ongoing DOE
"interim actions" at the Linde/Praxair property until after final cleanup
criteria are agreed upon.

     We would appreciate a response outlining NYSDOL's intentions in this
matter as soon as possible.
 
                              Sincerely,



                              James Rauch




cc: w/enclosures:   G. Pataki
                    R. Bangart, USNRC
                    J. Owendoff, USDOE 
                    J. Cahill, NYSDEC
                    

Enclosures:    pp 18-21 of "Radiological Survey of the Former Linde
               Uranium Refinery, Tonawanda, New York, May 1978",
               DOE/EV 0005-5

               July 29, 1977 letter w/enclosure from USERDA's
               William T. Thornton to NYSDOL's Dr. Francis J.
               Bradley



============================================================================ [Enclosure 1] 18 ... SUMMARY Five buildings on the Linde property were used in uranium operations during 1940 through 1948. Measurements and sample analyses indicate that the radioactive contaminants on the indoor and outdoor surfaces in the area of former uranium operations include U-238 and Ra-226. Concentrations of U-238 in soil samples were as high as 12,000 pCi/g (3.6% uranium), and Ra- 226 concentrations up to 813 pCi/g were measured. In samples with elevated activities of U-238 and/or Ra-226, the ratio of Ra-226 (in pCi/g) to U-238 (in pCi/g) varied from less than 0.01 to greater than 1.0. Since NRC limits* for alpha contamination levels --------------------- *These limits apply to the release of property for unrestricted use. --------------------------------------------------------------------------- 19 are 50 times stricter for Ra-226 than for U-238, it appears that the guidelines for Ra-226 should be applied to this site (see Appendix V). Alpha contamination levels exceeded the NRC limits for surfaces contaminated with Ra-226 in several areas in each of Buildings 14, 30, and 38, and in small, isolated areas of Building 31. Transferable beta contamination exceeded the NRC limit of 1000 dpm/100 sq cm at some locations in Building 30. Beta-gamma dose rates exceeded the NRC limits in several areas in each of Buildings 14, 30, and 38, and in one large area on a wall in Building 37. Elevated external gamma radiation levels were measured in Buildings 14, 30, and 38, with highest levels (up to 63 microR/hr) being recorded in Building 30. Outdoors, elevated external gamma radiation levels were measured at several isolated points in the northwest and northeast corners of the property. The highest recorded external gamma reading was 250 microR/hr, near the northeast boundary of the Linde property. Measurements of instantaneous radon daughter concentrations in Buildings 14, 30, 31, 37, and 38 did not exceed 0.01 WL. According to guidelines written by the Surgeon General and adopted by ERDA as the basis for the Grand Junction Remedial Action Criteria (see Appendix V), radon daughter concentrations in air below 0.03 WL do not require remedial action in structures other than dwellings and schools. It should be pointed out, however, that these guidelines state that indoor radon daughter concentrations be determined by "(1) averaging the results of six air samples each of at least 100 hours duration and taken at a minimum of four- week intervals throught [sic] the year in a habitable area of ------------------------------------------------------------------------- 20 a structure, or (2) utilizing some other procedure approved by the Commission." In the time span covered by the present survey, only limited, exploratory radon daughter measurements were possible. Since radon daughter measurements may vary significantly during short periods of time (particularly when the buildings are well ventilated), the measurements taken at Linde may not accurately reflect average annual conditions. In a high-volume air sample taken in Building 30, concentrations of Ra-226, Th-230, and natural uranium were at least an order of magnitude below the CG's [concentration guidelines for air] for those isotopes. In water samples taken on and near the Linde site, concentrations of radium, uranium, and thorium were below the non-occupational CG [concentration guideline for water] for those isotopes, except for one sample taken from an old conveyor pit in Building 30. In that sample, the concentration of Ra-226 was approximately twice the non-occupational CG [water]. ACKNOWLEDGMENT The authors wish to thank D.J. Christian, R. W. Doane, B. S. Ellis, D. L. Anderson, and W. M. Johnson for their excellent technical assistance. =============================================================================== [Enclosure 2] UNITED STATES ENERGY RESEARCH AND DEVELOPMENT ADMINISTRATION OAK RIDGE OPERATIONS P.O. BOX E OAK RIDGE, TENNESSEE 37830 Area Code 615 Tel. 483-8611 July 29, 1977 Dr. Francis J. Bradley Principal Radiophysicist Division of Safety & Health New York State Department of Labor World Trade Center New York, N.Y. 10047 Dear Dr. Bradley: Enclosed is a summary of understandings reached at our meeting at Linde on July 27, 1977. If this is inconsistent with your understanding, please let me know. Sincerely, William T. Thornton Health Physicist Health Protection Branch Safety & Environmental Control Div. OSH:WTT Enclosure: As stated =========================================================================== UNITED STATES ENERGY RESEARCH AND DEVELOPMENT ADMINISTRATION OAK RIDGE OPERATIONS P.O. BOX E OAK RIDGE, TENNESSEE 37830 Area Code 615 Tel. 483-8611 July 29, 1977 R. H. Kennedy, Acting Chief, Surveillance Projects Branch, DOES, HQ LINDE FOLLOW-UP STATUS On July 27, 1977, a meeting was held at the Linde Plant in Tanawanda [sic], New York to discuss findings of the ERDA radiological survey of the Linde site with company and State regulatory officials. Pursuant to HQ concurrence with our recommendations as stated in my memo to you dated April 7, 1977, the draft survey report was transmitted to Linde by the attached letter dated May 10, 1977, and to the State of New York subsequently on May 18, 1977. Attending the meeting for the State were Dr. F.J. Bradley and R.F. Kelly of the Department of Labor which has regulatory jurisdiction under agreement with USNRC for current Linde industrial operations involving radioactive materials. Attending for Linde were J.P. Green, Operations Manager, Ted Smist, Adam Malek and L.R. Andrews, Industrial Hygienist. R. E. Allen, HQ- DOES and William T. Thornton, OR, represented ERDA. Neither the State nor the company voiced any criticism of the report. We indicated the report would now be finalized and printed as an official ERDA document and would be available to the public upon request. The State plans to make measurements of its own on July 28-29 so as to be in a position to comment on the validity of the ERDA findings if queried. Dr. Bradley indicated the State preference that all contaminated areas be cleaned to unrestricted levels; however, he recognized that this may not be a feasible alternative at least in the immediate future. The State, therefore, requested that Linde submit a request for modification of its existing license to cover buildings 14, 30, 37 and 38 and those outside areas where uranium or radium concentrations in the soil exceed exempt levels in State Code Rule 38. Linde representatives, after general discussion of the types of controls which would be required, indicated a willingness to include these areas under State license. __________________________________________________________________________ R.H. Kennedy -2- July 29, 1977 It was indicated that ERDA is developing plans to make engineering assessments of remedial action alternatives at all sites found to exceed current unrestricted use guidelines. We could not predict the timing on completion of these studies for the Linde site but estimated something on the order of two years or more. Everyone appeared to agree that licensing the area was the only feasible alternative in the interim. Regarding public information aspects, it was noted that ERDA plans to issue within the next few days a summary status update on the overall program. Linde appeared satisfied with the remarks to be included on the Linde site; i.e., that the survey had been completed and the report is in preparation. A tour of the contaminated areas was made to acquaint State representatives with areas found to have the higher radiation levels. The company indicated plans for substantial modifications in Building 30 in the near future and will conduct these activities subjects to State radiation control requirements. Summary The results of the meeting can be summarized as follows: Company Actions: Linde will request modification of existing State license to cover areas contaminated from AEC/MED contract work. State Actions: Department of Labor will amend license to control contaminated areas pending final remedial action decisions. ERDA Actions: ERDA will make engineering assessment of feasible remedial action alternatives assuming funding is approved as presently anticipated. William T. Thornton Health Physicist Health Protection Branch Safety & Environmental Control Division OSH:WTT Attachment: As stated ______________________________________________________________________________ R.H. Kennedy -3- July 29, 1977 cc's w/o attach. F.J. Bradley, DOL J.P. Green, Linde T.K. DeBoer, New York Energy Office C.A. Keller, OR W.H. Travis, OR


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