MEMO OF OPPOSITION
NYSERDA LEGISLATIVE PROPOSAL ON WEST VALLEY (1/18/2005 Proposal)
Our national, state, regional and local environmental, community, religious and civic organizations oppose the legislative proposal drafted by the NYS Energy Research & Development Agency on West Valley.
As you know, huge amounts of nuclear waste were disposed at this site, formerly managed by Getty Oil and Nuclear Fuel Services. The federal and state governments have been conducting a coordinatedremediation of the leaking site under the 1980 West Valley Demonstration Project Act withDOE providing 90% of the funding and NYSERDA providing 10% of the funding. Formore than two decades, the agencies have implemented aremediation program with the prime contractor, theWest Valley Nuclear Services Company.Much of the work—making the high-level liquid reprocessed waste into a solid—is done. What remains is significant: cleaning up underground radioactive sludgeand tanks; tworadioactive waste burial grounds, surface and spreading subsurface radioactive contamination; and disposing of wastes generated by the solidification process.The agencieshaveserious disagreementsabout federal fundingand remediation commitments.In response, NYSERDAproposes a title transfer to DOE, instead of writing a prescription for a comprehensive cleanup and maintaining state authority. We oppose this misguided approach.
The following critique of the proposal outlines our main objections to the bill.
1) Transfer of Site to DOE Substantially Weakens State Role & Protective Remedial Goals
The NYSERDA bill would transfer the entire West Valley Nuclear Waste Site (the “center,” which includes both burial areas and the reprocessing and solidification facilities and wastes) from NYSERDA to the DOE for “exclusive use and possession” within 90 days of passage of the act [Section 8(a)]. In 20 years or when all remediation is completed, whichever comes first [Section 8(b)], title to and possession of the site (or portions of the site that have not been released from regulatory control by DOE by that time) would be transferred to DOE.
Under the bill, the center land would be released according to DOE’s release criteria—leaving higher levels of radioactive contamination than NYS state guidance would allow. This would create ongoing health risks and liability problems, as well as, limit reuse of the property.
The bill states that as long as DOE possesses or holds all or portions of the site, no new solid, hazardous or radioactive wastes can be brought in to those portions for storage, treatment or disposal [Section 8(c)]. However, it does not prevent DOE from selling parts of the property to private companies that would set up waste disposal facilities. Note that NYSERDA’s first draft specifically prioritized waste treatment and disposal facilities for solid, toxic and radioactive waste as a priority “economic development” activity that could be conducted on remediated sections of the property. DOE could also bring nuclear materials in for new or other licensed uses, which could generate more waste, such as a new nuclear power reactor—reactors located on DOE property is a provision being considered in the recent draft of the federal House Energy Bill[1].
In the bill, DOE is never directed to fully remediate or decontaminate the entire site. There is no definition of “decontaminate” or “decommission” [Section 3(a)] in this or the West Valley Demonstration Project Act and the “radiological remediation action program” [Section 5 (d) and (e)] is not clearly defined nor does it appear to apply to the entire site. This lack of clarity on the remedial goal at the site could well leave millions of residents in the area, downstream and downwind, at risk of ongoing contamination if DOE and NRC make decisions based on the cheapest way to deal with contamination at the site, which both agencies have done at other sites. Based on the past experience of community and environmental groups working on DOE sites in New York and in other states, we believe DOE will ignore or resist complying with stricter state environmental standards, claiming they are not "applicable." In fact, on a number of occasions high-level state agency officials have asked some of our organizations to assist them in their battle to convince DOE to follow state standards atDOE sites. For instance, at the Linde/Praxair DOE site in Tonawanda, NY, the Army Corps of Engineers made national news by selecting a soil cleanup level that would leave shockingly high levels of contamination at the site, even though this was strongly opposed by the state Department of Environmental Conservation. At other sites, the DOE has refused to follow state cleanup guidance, refused to conduct needed off-site testing and/or refused to do groundwater remediation.
The West Valley Remediation Act relies on the Nuclear Regulatory Commission (NRC)’s License Termination Rule (LTR) implemented by the US Department of Energy (DOE) with New York State as owner turning the site over to DOE, in order to achieve the long-term management of the site. Both NRC and DOE are much less likely than NYS to be responsive to public concerns and requests for public health and drinking water protection through an environmentally sound clean up of the West Valley site.
What control would New York have over a DOE-owned site?The state would no longerjointly coordinate site activities with DOE; it would only be "consulted" on site remediation—it would lose the authority to ensure anadequate remediation plan isapproved.DOE will determine whether or notto follow state laws, not the other way around.New York would be giving up an important partnership role that enables the state torequire compliance with appropriate environmental, health and laborlaws and regulations at the site.NYS has legal and political powers and authorities as owner that should not be given up. Transfer of possession or title of the site to the DOE along with the complete removal of state liabilities, will effectively void the state’s existing strong legal standing in the cleanup decision making process. If this proposal is enacted the state’s power to effectively seek judicial relief on behalf of its citizens for unsound federal remediation decisions will be permanently lost.
The majority of the activity at the West Valley site was federal and as such the cleanup should be largely federally funded, and the current West Valley Demonstration Project Act fully implemented. We realize the West Valley Demonstration Project Act is not being fully implemented and there are funding concerns. However, turning the entire site over to the DOE does not necessarily resolve the conflicts between the state and DOE. Indeed the state could very well be giving in to irresponsible decisions that DOE intends to impose (such as the declassification of high level radioactive waste as Waste Incidental to Reprocessing or WIR as legislated for the DOE’s own Savannah River Site and the Idaho National Engineering and Environmental Labs in the Defense Authorization Act in 2004).
New York clearly has done more financially than any other state to facilitate cleanup from the nuclear age and this should be factored in to future decisions on both the site cleanup and the future federal energy policy. We note that the proposed federal policy actually calls for more reprocessing of irradiated nuclear fuel, while we struggle over funding and jurisdiction for a multibillion dollar cleanup from the first commercial reprocessing in this country at West Valley. The least we can do is learn the lessons.
2) Compliance with NRC License Termination Rule (LTR) is a Moving Target
Under the current situation and according to the proposed bill, the DOE is to clean up the site to comply with the US Nuclear Regulatory Commission (NRC) requirements in 10 CFR 20 subpart E. (The West Valley Remediation Act [Section 5(a)] requires cleanup according to the License Termination Rule (LTR) as published in the Code of Federal Regulations.) Without the legislation, the NRC’s February 1, 2002 “Final Policy Statement on Decommissioning Criteria for West Valley Demonstration Project (M-32)” at the site would apply. This concludes that the site is so unique and challenging that it might not be able to meet the LTR, so it permits flexibility.
Unfortunately, the NRC LTR has significant loopholes for weakened interpretation as it stands, even without that “flexibility.” 10 CFR 20.1404 allows the licensee to use “alternate criteria for license termination.” Assumptions can be changed in computer models that project the same amount of radioactivity giving lower doses, thus allowing more radioactivity to remain.
The NRC LTR allows a site to be released for unrestricted use if the dose calculated to the average member of the critical group (the public) is 25 millirems per year. This level for a closed nuclear facility is essentially the same as the EPA allows for licensed operating uranium fuel chain facilities (40 CFR 190.10(a)). It is more protective than DOE would achieve under its own orders but not as protective as the NYS Departments of Health and Environmental Conservation state guidance would require—10 millirems/year. Clearly, if the site was transferred to DOE, it would be highly unlikely that the surrounding community would have the assurance of the more protective state guidance.
The NRC LTR also allows restricted release of closed nuclear facilities that give 100 to 500 millirems[2] per year to the average member of the critical (exposed) group, if the site is checked periodically by a responsible authority. The risk from a one hundred millirem annual dose is estimated to be 1 cancer death in 286 people exposed at that level over their lifetimes, according to an NRC policy document (published in 1990 and relying on UNSCEAR and BEIR). The potential dose estimates for exposures from the West Valley site in the 1996 Draft Environmental Impact Statement (DEIS) were much higher (in the range of tens of millions of millirems). Since then, DOE has: 1) split the 1996 DEIS into two separate EIS’s so as to limit the cleanup options and; 2) reassessed the potential doses, reducing the estimates by many fold with the sweep of the pen and without assuming or requiring greater cleanup.
The bill calls for “remediation” defined as “those activities or processes used to remove, destroy, degrade, transform, immobilize, or treat radioactive, solid, or hazardous waste, as defined in this Act.” [Section 2(k)] The bill calls for “remediation” of the same portion of the site that was covered under the West Valley Demonstration Project Act but does not expressly apply to the state licensed disposal area (SDA). Although the SDA is transferred to DOE, the only cleanup directed for it is under Section 5, Regulation by the Commission. Here DOE is directed to develop a decommissioning plan “that addresses the radioactive wastes and nuclear materials at the Center” [Section 5(b)(1)] that meets its published License Termination Rule. The State would only be allowed, “to review, comment on and concur or not concur with the decommissioning plan submitted by the Secretary (of Energy) and any modifications to such plan.” [Section 5(b)(2)]
NYS has stricter guidance on cleanup than either NRC or DOE and should have authority to accept or reject the plan, and also to direct more protective cleanup. In addition, the timing of cleanup is left open—the National Environmental Policy Act (NEPA) documents and Records of Decision by DOE and NRC “shall be completed as soon as reasonably practicable.” [Section 7(c)] There would be no state authority to compel timely remedial action. There is no requirement that the NEPA EIS Impact Evaluation Process be concluded before remediation decisions are made and implemented via a decommissioning plan under the License Termination Rule. The NEPA EIS impact analysis of alternatives is essential to sound public decision making. Finally, the bill does not require full remediation before unrestricted release of portions of the site. This is a big problem, as a complete cleanup is needed to meet protective exposure scenarios before parts or the entire site is released from regulatory controls.
3) Legislative Timing is a Major Problem
What are the reasons for taking any legislative action now? Why the rush to make radical changes in a long-standing arrangement between the federal government and state at this site? The political climate of Congress in general is the most anti-environmental in history.
In this political climate, any legislative activity opens up the possibility that weakened environmental requirements will be enacted. The most obvious one is the Department of Energy’s (DOE) current Waste Incidental to Reprocessing (WIR) initiative. DOE has successfully driven the declassification of highly radioactive reprocessed waste in legislation for two of the four sites in the country directly impacted—despite a major coordinated effort to prevent it and court decisions against declassification. DOE is adamant about this move to declassify some high level radioactive waste to avert the costs and bother of exhuming the tanks and sludge at the West Valley site.
At this time, in this Congress, any legislative proposal involving the West Valley site carries the substantial danger of acquiring provisions which would in their execution render the site a federal “sacrifice area” similar to the federal Hanford, WA and Savannah River, SC sites. Furthermore, there is substantial danger that any legislative proposal will be modified to transform the NEPA process into a CERCLA process. If this happened, the public would not only lose the essential findings of the site’s 1996 Draft Environmental Impact Statement process, but also the NEPA-provided right to judicial review of any faulty remediation decision. CERCLA is a weaker law than NEPA (which provides the public with a “hard look,” court reviewable EIS process) because CERCLA allows agency discretion in determining which state and federal regulations are followed.
4) Impacted New Yorkers Deserve To Have Every Remedial Option Considered
with Protective Remedial Goals
The impacted public deserves to have every remedial option considered to address the highly radioactive pollution at the West Valley. According to the DOE 1996 DEIS, the entire site will erode into the Great Lakes and cause large doses to those downstream in the range of hundreds of years if left to natural systems. Under this legislation, New Yorkers would lose their right to have full health and environmental protections at the site through consideration of exhumation and other remedial options to protect their drinking water supply and the Great Lakes Basin Area.
Based on DOE’s and NRC’s history, residents downstream of the West Valley site all the way to the St Lawrence Seaway and beyond would be at risk of the agencies allowing the release of contaminated sites, without a protective clean up. The impacted communities deserve to have every remedial option seriously considered and fully researched with assurances that health-threatening contamination will be cleaned up.
We support full funding by the federal and state government to ensure a timely andcomplete remediation of the West Valley site with a continued partnership arrangement between NYSERDA and DOE.We support provision of compensation of the local governments, including the emergency response, health and education sectors of the town, county and tribal governments, for the sacrifices they have made, for the loss of their property and negative economic and environmental impacts on the surrounding community.
[1] Energy Policy Act of 2005, found at
SEC. 629. REPORT ON FEASIBILITY OF DEVELOPING COMMERCIAL NUCLEAR ENERGY GENERATION FACILITIES AT EXISTING DEPARTMENT OF ENERGY SITES.
Not later than 1 year after the date of the enactment of this Act, the Secretary of Energy shall submit to Congress a report on the feasibility of developing commercial nuclear energy generation facilities at Department of Energy sites in existence on the date of enactment of this Act.
[2] The proposed 100 millirem/year level is estimated by EPA (using Federal Guidance 13) to produce a cancer in every few hundred people exposed, for an overall risk that is 25-2500 times higher than EPA’s longstanding acceptable risk range of 1 cancer in a million exposed people to 1 in 10,000 exposed. An EPA statement says NRC estimates the cancer risk of a 100 mrem/year cleanup standard as 1 in 200 (5 x 10-3). NRC presumably used a longer exposure time (e.g., lifetime) than the 30 years of exposure that EPA assumes.