Pursuant to the Commission’s April 14, 2000 request, the Paper, Allied-Industrial, Chemical and Energy Workers International Union, AFL-CIO ("PACE"), hereby provides its comments on the Staff "SECY–00-0070" Paper ("Staff Paper") and the related Commission determination to employ yet a further contractor to perform its work in this proceeding (the National Academy of Sciences ("NAS").

PACE has long been the primary representative of the hourly workers at the United States Government’s nuclear weapons complex sites. Its members also work in steel facilities, machining operations, metal working plants and other workplace settings where radioactive metals can be smelted, cast, ground, machined, plated, welded or otherwise processed. PACE therefore has a long and continuing interest in the understanding of the risks posed by exposure to radioactive materials and the protection of the public, including PACE members, their families, and the communities in which they live and work, from these risks. PACE has need to understand not only the health effects of exposure to radioactive materials, but, of no less importance, the capabilities, competence, and historic and continuing shortcomings of the institutions -- public agencies and private corporations -- to whom radioactive materials have been entrusted for processing and use.

Pursuant to the Commission’s prior invitations, PACE submitted three lengthy sets of comments, and participated in two of the Commission’s public meetings. PACE’s comments are essentially ignored in the Staff Paper and in the related employment of the NAS. In essence, PACE stated:

• The integrity of the rulemaking requires affirmative demonstration that alternatives -- including no unrestricted release at all -- are seriously and fairly considered; and

• No unrestricted release can be found safe without full fact finding, and accounting for, evidence that those entrusted with public releases of radiation cannot be presumed to comply with the law, to possess the competence to protect the public, and to tell the exposed public the truth.

As to these points:

• The Staff Paper and the Commission deployment of the NAS confirm that the Commission is determined not to come clean with the public regarding the full circumstances surrounding:

• the Commission’s determination to pay millions of dollars to a tainted contractor to perform the technical analysis on which the Commission relies; and

• the Commission’s determination to write a prejudgment of the outcome here into the August, 1999 contract with that contractor.

• The Staff Paper and the Commission deployment of the NAS confirm that the Commission takes no issue with the uncontradicted evidence that those entrusted to promote recycling cannot be trusted to abide by public protection requirements, but takes no interest in fact finding and analysis needed to correct the culture and conduct that has earned the public’s distrust.

Rather than repeat its prior lengthy comments verbatim, PACE respectfully incorporates them by reference here, and summarizes the most salient omissions in the Staff Paper and the Commission’s determination to punt its obligations to the NAS.

It is now acknowledged that the Atomic Energy Commission, its successors, and their contractors, knowingly hid risks from workers, their communities, and the public at large in order to avoid embarrassment and liability to themselves (even where they knew that national security did not justify keeping secrets). The central issue here is not, as the Commission’s referral to the NAS would evidently have it, whether a given amount of radiation is safe (or, if not safe, a risk somehow worth taking), but whether the governmental and contractor institutions that embody this legacy today (i.e., the Department of Energy, this Commission, and their instrumentalities, delegatees, contractors and licensees) can be entrusted to honor and effectuate any standard under which unlabeled radioactive waste will be put into commercial goods that will come into daily and intimate contact with citizens.

The public record -- including evidence presented by PACE in this proceeding which has not met with any response, much less contradiction from the Commission -- now shows that the Department of Energy ("DOE") and its designated recycling contractor’s (BNFL) promotion of the recycling of radioactive waste is faithful to the tradition of secrecy, lawlessness, and public endangerment.

This evidence should be at the heart of this proceeding, but, if the Staff Paper and the NAS referral are the measure, it is an utter stranger to it. The Staff Paper, consistent with the Commission’s presentation at the public participation meetings, is devoid of reference to, much less analysis of, the continued revelations regarding the DOE and British Nuclear Fuels, Inc.’s ("BNFL") Oak Ridge recycling project -- the largest effort at radioactive recycling ever (publically, at least) undertaken in this country. That project now involves, for example: (1) a Federal court finding that, acting with distressing secrecy, the government and its contractors put citizens at great environmental risk in disregard of basic environmental law; (2) the Secretary of Energy’s confirmation that the license granted by this Commission’s delegatee (Tennessee) cannot be credited, and that no recycling can take place under it; and (3) daily public revelation that DOE’s lead contractor (BNFL) has managed to deploy a frightening lack of integrity on a truly global scale. (See, footnote 4.)

The Staff presentations at the public meetings and the current Staff Paper confirm that this Commission would rather focus on abstract discourse about rules being set by some foreign country(ies) than by the reality of the conduct of those promoting recycling in the United States. This Commission’s proclamations that it bears no responsibility for developments sponsored by the DOE is not credible.

The DOE/BNFL Oak Ridge experience shows that the DOE and its contractors have contrived to launder the recycling of their waste through this Commission’s (delegated state) process. By consequence, this Commission’s own proceeding is now stained by multiple taints, including: (1) this Commission’s reliance on a contractor with multimillion dollar ties to the DOE/BNFL recycling promotional efforts to perform the bedrock analysis here; (2) this Commission’s repeated prejudgment of this proceeding, including in its August, 1999 contract with SAIC; and (3) this Commission’s whitewashing of the conduct of its state delegatee’s (Tennessee) blessing of the DOE/BNFL promotion, without regard for Federal Court finding (and much further evidence) that Tennessee’s closed door licensing of BNFL put the public health and safety seriously at risk.

This Commission must undertake the public disclosure and self-inquiry that are predicates for any trust in the integrity of this proceeding. The needed steps, all of which are further discussed below, include:

• empanel an independent body to consider the issues of institutional competence raised by PACE and others, but ignored in the referral to the NAS;

• assure that the independent body deliberates in public, as is required under the circumstances of historical misconduct and immediate taint that define this proceeding; and
• assure that the independent body has the means to get to the facts.

The Staff Paper and the NAS referral confirm that the Commission wishes to believe that the primary issues here are technical -- i.e., the amount or quality of radioactive materials that can, in the abstract, harm humans and their environment, and the ability of equipment to decontaminate waste to these levels. The record here, and the record being compiled in the press on a virtually daily basis, shows that this question is an academic exercise in the absence of any showing that the institutions entrusted with any resulting standard -- the Department of Energy, its contractors, and this Commission and its state delegatees and licensees -- can be trusted to abide by it.

The Staff Paper’s summary of PACE’s concerns illustrates the shallowness of the Commission’s appreciation of that which is well known to readers of the daily press. The Staff Paper blandly summarizes PACE and others as stating that "[b]ecause workers have been misled about radiation hazards in the past and because rules have not always been followed, it is not clear if a rule in this area would be followed." (Attachment 3, at 8). Of course, the public record now shows that this misleading was hardly a "once in a while" occurrence of the distant past. Rather, the public record shows that the coverup of risk to workers, their communities, and even the broader public was a policy and practice that existed at the birth of this Commission’s predecessor (the Atomic Energy Commission ("AEC")) and that, as new revelations show, has extended without effective public countermand for decades (and may continue to be ongoing today).

Most directly, the Staff Paper ignores that the public record shows a straight line connection between the secrecy and lawlessness of the ostensibly distant past and the current and ongoing efforts by the government and its contractors to forward the release of radioactive materials for commercial use. The public record now contains:

• DOE’s too recent admission that for decades it, and this Commission’s predecessor (the AEC), covered up radioactive risk from workers and their communities, thereby depriving them of the means to protect themselves from risk, and actually increasing the resulting illness (see footnote 3 above) ;

• Federal court confirmation that the Department of Energy awarded its quarter billion dollar recycling contract to BNFL, Inc. without regard for the basic requirements of environmental law and openness (See, Oil, Chemical & Atomic Workers, et al. v. Pena, et al. 62 F. Supp. 2d 1 (D.D.C. 1999);

• evidence that the BNFL contract proceeded in defiance of Secretary of Energy Pena’s direction to high level officials (including the DOE signatory to the contract) that the contract provide that no recycling take place absent approval of DOE;

• evidence that, aware of the controversy surrounding recycling, BNFL sought to launder the volumetrically contaminated nickel through the State of Tennessee’s processes, which it knew did not provide for public participation;
• evidence that the DOE awarded the quarter billion dollar contract to BNFL, Inc. with shockingly little due diligence, including no apparent awareness that the affiliate which would perform the recycling was in noncompliance with a host of environmental, safety, and health requirements, and, by BNFL’s lights, lacked basic management competence (See PACE November 1, 1999 Comments at 11-12);

• daily press reports that BNFL’s lack of integrity is a growing global scandal, to the point that even the Department of Energy has expressed the need to review BNFL’s contracts (see footnote 4 above);

• this Commission’s effective confirmation that this Commission blithely embraced BNFL’s "teaming partner" SAIC to draft the technical analysis here without the slightest thought to the possibility that there might be a conflict of interest;

• this Commission’s confirmation that this Commission would rather apply a rubberstamp than hard inquiry to the question of how and why its delegatee (Tennessee) managed to grant a recycling license to BNFL without public review and with disregard for the licensee’s historic failure to comply with health, safety, and environmental requirements.

In sum, the Commission has given no reason to believe that it seeks to come to terms with the culture that underlies the public’s distrust of those institutions to whom recycling would be entrusted. By this neglect, the Commission itself necessarily provides further confirmation that the distrust is merited.

Pursuant to the Commission’s invitation, PACE, and others, identified basic factual questions regarding historical competence which must be addressed and answered before any steps are taken to proceed with a rulemaking that might result in the release of materials for public use. The Commission assured PACE that these questions would be addressed and answered. However, these questions are not even referred to in the Staff Paper, and there is no basis for presuming that they will, or can be, addressed by the NAS study.

For example, the summary to PACE’s November 1, 1999 comments identified a series of questions:

• No unrestricted release can be found safe without full fact finding, and accounting for, evidence that those entrusted with public releases of radiation cannot be presumed to comply with the law, to possess the competence to protect the public, and to tell the exposed public the truth. This fact finding and accounting must include:

public notice.

The Commission provided assurances to PACE and other public participants that information sought by PACE and others would be diligently pursued. Thus, in opening the November 1, 1999 public participation meeting, NRC staff proclaimed that the NRC’s intent was "to exchange information, not just between NRC and you, but also amongst yourselves." (Tr. at 24.)

The public meetings confirmed that the NRC knew stunningly little about the historic and present institutional practices and policies regarding the release of materials.

When it became evident that NRC staff lacked the information to respond to the questions, the Commission’s facilitator and staff made a show of asking PACE to distribute its written questions to all present -- presumably on the representation that they would be considered and responded to.

The instant Staff Paper, however, shows that staff has not even informed the Commission of the issues identified by PACE, much less provided PACE and the public with the promised "exchange" of information.

In November, 1999 PACE pointed out to the Commission that its employment of SAIC to perform the technical analysis for this proceeding was unacceptable where the company has long been the teaming partner to BNFL in the quarter billion dollar DOE sponsored effort to promote nuclear waste recycling. Moreover, PACE pointed out, the conflict was particularly egregious where:

Throughout the November and December, 1999 public participation proceedings, PACE (and other public representatives) pointed out the obvious -- no rule regarding the release of radioactive waste can be meaningful without full consideration of the waste generated by the DOE nuclear weapons complex.

In sum, even if the unlawful taint and violation of the inherently governmental principle could be put aside, the NUREG-1640 document does not begin to address the "realistic scenarios" that are at issue here.

The public proceedings confirmed that the lion’s share of the metallic waste at issue is that created by the Department of Energy (and its contractors). Moreover, the proceedings confirmed that DOE and its contractors are the prime -- perhaps the sole -- active promoters of the unrestricted release of metals.

Throughout the public participation proceedings, NRC staff and officials expressed an inability to respond to queries regarding the Department of Energy’s radioactive waste, and suggested that the matter is not within their purview. This position is untenable, and particularly unbecoming where DOE and its contractors have now made plain that they intend to avail themselves of this Commission’s imprimatur to launder their contaminated materials for public distribution.

Thus, the public record here shows:

• DOE is the primary source of radioactively contaminated metals, with an estimated volume in excess of 1,000,000 tons;

• DOE’s project to recycle 100,000 tons of radioactive metals from the Oak Ridge K-25 facilities is far and away the most ambitious recycling project undertaken. NRC staff repeatedly declared that they were not capable of discussing the salient details of this project even though the DOE and its contractors (BNFL and its team) contrived to avoid "Federal" regulation by laundering the volumetrically contaminated nickel through this Commission’s delegatee – Tennessee;

• DOE’s contractors (BNFL, et al.) calculated that they could avoid both Federal standard setting and public review by invoking the cozy closed door confines of this Commission’s delegatee -- Tennessee;

• DOE managed to further taint this Commission’s proceedings by failing to assure that this Commission was aware of the obvious conflict of interest in employing SAIC, BNFL’s teaming partner; and

• Secretary Richardson, through his January 12, 2000 announcement, has now made plain that the DOE’s pursuit of recycling will follow this Commission’s action in this proceeding.

In sum, the failure of the SECY memo and the NAS referral to focus on DOE and its contractors is neither tolerable nor credible.

In its 1995 report to President Clinton, the Advisory Committee on Human Radiation Experiments found that -- at its birth -- this Commission’s predecessor (the AEC) followed a policy of covering up health, safety, and environmental information that could embarrass, or be a source of liability to, this Commission’s predecessor or its contractors. The Advisory Committee did not find that this covert policy was ever countermanded. Recent disclosures show that it continued for decades, and may still continue to this day.

The Advisory Committee found that AEC insiders were well aware of the AEC’s credibility problem and of the valued role of the NAS as a cover for the AEC – but a cover no less credible than this Commission’s predecessor itself. The Committee reported: (Id., at 406)(emphasis added; fn.omitted)

The Commission’s Staff Paper and the Commission’s embrace of NAS provide no reason to believe that the NAS’ relationship to this Commission and its proposed role in this proceeding is any different from that well understood by insiders -- if lost on the press and public at large -- in days that the public might have hoped were now past.

To the contrary, the materials provided by this Commission regarding the funneling of taxpayer dollars to the NAS show -- by omission -- that the NAS will not be called on to address the basic questions that need to be addressed here -- questions of institutional competence, integrity, and lawfulness.

Moreover, even if the NAS had been empaneled to address the matters at issue, there is nothing in the Commission’s materials that calls on the NAS to vary its historic secretive deliberative processes. The NAS can hardly be credited on issues of institutional competence and trust which implicate the past, and perhaps continuing, excesses of secrecy engaged in by NAS panel members who simultaneously depended on the nuclear weapons complex and/or nuclear utilities for income and, indeed and perhaps -- though the story remains to be made public -- the NAS itself.

In short, if this Commission feels compelled to call on another source to address the questions here, it must:

For information regarding the above comments please contact Dan Guttman at 202-638-6050 or Richard Miller at 202-293-7939.