Re: Comments on Proposed Revisions to DOE Order 5400.5 Regarding

Release of Radioactively Contaminated Materials from DOE Nuclear Sites

65 FR 198: 60653-60656 10/16/2000

4 December 2000

Harold T. Peterson, Jr.

Air, Water and Radiation Division

Office of Environmental Policy and Guidance

U.S. Department of Energy (EH-41)

1000 Independence Avenue, SW

Washington, DC 20585

Dear Mr. Peterson:

We appreciate the opportunity to comment on the proposed revisions to DOE Order 5400.5 regarding release of radioactively contaminated materials from Department of Energy nuclear sites.

As you know, there has been intense public and Congressional concern, as well as media attention, over revelations of DOE contemplation of free-releasing radioactively contaminated materials from the DOE complex, including the recycling of contaminated metals into consumer products. In response to this widespread concern, Secretary Richardson announced he was suspending the practice of recycling contaminated metals into commerce, while new rules were put in place to address public concerns that no contaminated materials be released from DOE sites. In the past, the public and numerous state and local governments have repeatedly voiced strenuous objections to proposals to deregulate, release and recycle radioactive wastes and materials. Secretary Richardson’s announcement evinced extensive support, and, frankly, relief, across the nation.

In October, DOE announced that it was making available for public review and comment proposed changes to DOE Order 5400.5 that supposedly carry out the intent of Secretary Richardson's announcement in this regard. We have reviewed the proposed changes and are terribly disappointed. Rather than eliminating the practice of free-release of radioactively contaminated materials from DOE sites, the proposed changes, with one very narrow exception, would open the floodgates to the very practice that was supposed to be curtailed.

We fully support the concept and goal of preventing and prohibiting the release of any DOE contaminated radioactive materials and wastes from release into the free market (for recycling, reuse, unregulated disposal) and prohibiting the release of contaminated DOE sites. The proposed changes to DOE Order 5400.5 fail to achieve this goal.

Among our concerns with the proposal are:

1. It would permit recycling into public use of every type of radioactively contaminated material with the sole exception of metals.

2. Regarding metals, the draft Order appears to ban recycling of surface-contaminated metals but is ambiguous at best as to whether DOE will resume recycling of volumetrically contaminated metals. If so, an incongruous situation would result, in which metals with surface contamination can't be recycled but those with potentially even greater radioactivity within their volume can be released and recycled.

3. An artificial distinction is made between "reuse" and "recycle." For all materials, including metals, "reuse" is permitted, irrespective of the issue of recycling. Thus, a metal bowl that would be barred from being recycled because of surface radioactive contamination could nonetheless be sold or donated to the public. Contaminated piping, ventilation ducting, motors and pumps could be permitted to be sold to the public for reuse, despite their containing radioactive contamination from DOE activities.

4. The "reuse" loophole permits the very same radioactively contaminated metals that are barred from direct recycle to end up getting recycled into consumer products secondarily. This can happen since the proposed Order allows reuse but there is no tracking and no bar on the "reused" materials being resold or sent for recycling, when no longer needed. Thus, the consumer metal supply will end up contaminated.

5. Even the sole positive aspect of the proposed changes to Order 5400.5, the supposed ban on recycling surface-contaminated metals from DOE facilities, appears to be illusory. The draft Order changes would place restrictions on metal recycling but only on metals that are "personal property." It is not clear whether the restriction would apply to contaminated metals in DOE buildings that are being torn down.

In conversations with DOE staff, we have been informed that once the building is released for unrestricted use and its ownership transferred from DOE (e.g., handed over to the DOE contractor), the metals in that building can be sold as scrap and recycled into consumer goods. Similarly, any materials sold or donated for "reuse" can be sold subsequently as scrap and recycled into consumer goods.

The public will be horrified to learn that the promise to ban recycling contaminated metals has been broken.

6. The proposed changes would permit sending radioactively contaminated materials from DOE operations—including radioactively contaminated scrap metals barred from recycling—to municipal landfills not licensed to take radioactive wastes. By permitting reuse, the materials, including metals, could go to other public unlicensed facilities such as schools, zoos, farms, etc.

This is of great concern as DOE, by these proposals, is essentially attempting to codify a "Below Regulatory Concern" (BRC) level permitting dumping vast quantities of radioactively contaminated materials into public areas instead of isolating them in regulated radioactive waste facilities. Congress revoked the Nuclear Regulatory Commission’s "BRC" (nuclear materials deregulation and release) policies nearly a decade ago. It appears DOE, under cover of proposed "improvements" to its waste management program, is attempting to quietly put in place that rejected policy.

7. Contaminated Sites. In addition to addressing materials getting into commerce, the proposed Order broadly adopts allowable contamination doses from release of sites. The draft Order changes, proposed at 5400.5 VI 3. b. (2) (a), would codify an outrageously lax, and illegal, cleanup level for real property of 25 millirems per year – the equivalent of approximately 175 additional chest X-rays over one's lifetime. EPA has repeatedly stated that such a level is not protective of public health and would violate DOE’s statutory obligation to employ cleanup standards consistent with EPA's Superfund (CERCLA) guidance and Safe Drinking Water standards.

Superfund regulations requires cleanup to a one in a million risk of cancer incidence, falling back to no more than approximately a one in ten thousand risk if the stricter level absolutely cannot be met. The 25-millirem/year criteria for release of contaminated sites would bring a lifetime cancer death risk of almost 1 in 1,000, an unconscionably high risk. This is based on DOE's own official risk factors for radiation and a 70-year lifetime exposure. Also, the DOE proposal sets no groundwater standard. EPA uses essentially a 4-millirem groundwater standard, and has harshly criticized the Nuclear Regulatory Commission's lack of a groundwater standard. In her statement on April 21, 1997, then-director of the Office of Air and Radiation, Ramona Trovato, made 3 key assertions: groundwater must be protected as a natural resource, protecting groundwater used as drinking water is a human health issue, and protecting groundwater used as drinking water involves basic issues of economic fairness. Without a separate groundwater standard, the DOE proposal would allow people to receive a 25-millirem dose through drinking water, more than 6 times the EPA level. These risks, for all pathways and for drinking water specifically, would never be considered acceptable for other pollutants. DOE is attempting to continue radiation's status as a privileged pollutant.

8. The proposed DOE order would permit use of Surface Contamination/Activity Guidelines from the 1974 Atomic Energy Commission, that have no health basis and are in fact a health threat. These guidelines, found in Table VI-1, would permit property, real and personal, to be released to the public with high levels of contamination. For example, footnote 5 of Table VI-1 permits dose rate averages of 0.2 millirads/hour from surfaces. Continuous close exposure for a year at that rate would result in 1750 mrad/yr., the equivalent of 175 chest X-rays a year (and more than 12,000 over a 70-year lifetime, with a consequent risk of 1 in 16 chance of fatal cancer).

Additionally, the radionuclide concentrations permitted are not protective. An apparently high new value has been added for tritium contamination, allowing 10,000 disintegrations per minute of removable contamination over a 100 square centimeter area. Permitting free release of contaminated facilities and materials under such circumstances is unacceptable.

9. Detectability vs. Authorized release limits

There need to be

- strict, verifiable requirements and incentives for use of the best achievable procedures, technology and equipment to provide complete surveying for the lowest levels of detection for all radioisotopes

- measurements using appropriate, effective, properly calibrated equipment, procedures and proper, sufficient counting times

- properly trained personnel and independent verification

- rigorous methods of determining background so that DOE and its contractors are not able to continue to ship out radioactively contaminated materials in the guise of their being "similar to background."

The technologies and procedures must then be implemented appropriately, comprehensively and effectively to detect residual DOE-generated radioactivity requiring cleanup and isolation from the environment. Complete surveys of each DOE site must be done on all materials and wastes to the lowest level of detection for every radioisotope using the most sensitive detection equipment, technique, procedures appropriate for all types of radioactive contamination and for the proper detection period.

Rather than require the best-available, appropriate equipment, techniques and procedures with very good detection capabilities, to identify and prevent release of contamination, we understand DOE staff intend to propose continuing using the same (and possibly higher) allowable contamination levels as before the Secretary’s suspensions on the release of metal as detection levels. Table VI-1 of DOE Order 5400.5 (similar to current Figure IV-1) has been and would continue to be used to permit the release of radioactively contaminated materials, even though the capability exists to measure and prevent release at much lower levels. Development of "Authorized Limits" would be an ongoing process of DOE managers permitting radioactive releases.

This would be a backdoor way of nullifying the Secretary’s directive that no detectably contaminated metals be released. The Secretary’s implication was that the Table would cease being used as release criteria for metal and no detectable DOE contamination would get out. Continuing to use the Table would make a mockery of the Secretary’s public pledges.

10. The one thing that the proposed Order changes were supposed to do --prevent materials with any DOE-added radioactivity on or in them from release and recycling -- is completely absent. Instead, a vague procedure authorizing the very DOE managers and contractors that caused the contamination to make a guess about whether the material is contaminated, based on "process knowledge," is mentioned. Radiological surveys in many cases would be discretionary ("may be conducted").

DOE and its contractors have a miserable record with regards to assuring protection of the public and their own workers. The proposal's vague, carte blanche hand-over of protection obligations to the very entities that caused the problem in the first place is unacceptable.

In short, the proposed revised Order would grossly impact public health, permitting the public to be exposed to vast quantities of radioactively contaminated materials released from DOE sites reused, recycled, and disposed of in facilities not licensed for radioactive waste. The adverse, irreversible public health and environmental consequences could be enormous.

APA and NEPA Violation:

We note that to adopt this proposal in its entirety, with the bulk of its contents increasing harm to the human environment, would violate both the Administrative Procedures Act (APA) and the National Environmental Policy Act (NEPA). APA requires that substantive rules be adopted by APA rulemaking procedures as regulations in the Code of Federal Regulations. NEPA requires any action with potential for significant impacts on the human environment to be preceded by an Environmental Impact Statement.

If the proposed policy changes actually did what the public and press thought they were going to do, based on Secretary Richardson's July 2000 announcement, namely, - to ban the free-release of radioactively contaminated materials from DOE facilities - then proceeding as proposed would arguably be in compliance with the law. Such a ban would protect the environment, not harm it. But that is certainly not the case with the opening of the floodgates to free-release of radioactively contaminated materials, as the proposals actually entail.

DOE's history with regards to protecting the health of the public and its workers and preserving the environment is widely regarded as dismal. If one sets permissible levels of contamination in materials free-released to the public, one can guarantee scandal after scandal where DOE contractors have released material that subsequently turns out to be a serious health threat. The only sensible approach is to ban the release of any materials with DOE-added radioactivity.

Conclusion:

We respectfully suggest discarding all of portions of DOE Order 5400.5 that would authorize free-release of contaminated materials, and replace them with a single uniform ban.

Secretary Richardson, in suspending the release of potentially radioactive metals from the DOE complex, gave the public the impression that a policy would be developed that prevents the release of any materials with DOE-contamination from the complex.

The Secretary should mandate that no radioactively contaminated or potentially contaminated materials, wastes or property shall be released from the DOE complex and that rigorous techniques and procedures shall be developed and employed to assure that mandate is carried out.

The specific details of measurement procedures, equipment and techniques to be employed to make the necessary determinations should be adopted in a process with substantial community and public involvement that includes timely, full disclosure of information.

Secretary Richardson’s July announcement heartened many people, as it indicated an intention to protect public health by reversing course with regard to free release of contaminated materials. The proposed Order prepared by staff, however, appears to go in precisely the opposite direction. We urge that DOE Order 5400.5 be revised to effectively ban not only the release and recycling of radioactively contaminated metals, but to effectively prohibit the free release of all DOE-radioactive contamination on and in materials, wastes, sites and property.

Sincerely,

www.nypirg.org

atom.girl@mindspring.com

Web: http://www.grrn.org