Part 2: Does existing law already order the ‘recall’ of radwaste at West Lake? 01/30/2016

Examiner.com
by Byron DeLear

News update on the radioactive West Lake Landfill with George Noory and Byron DeLear.
News update on the radioactive West Lake Landfill with George Noory and Byron DeLear.

In Part 1 of this series, we laid out the history the how the Manhattan Project produced over 125,000 tons of nuclear waste in St. Louis, Missouri which was stored out in the open at several sites. Between 43,000-48,000 tons of this highly toxic, radioactive material was illegally dumped at the West Lake Landfill. After 43 years of finger-pointing and an endless train of studies and reports, the West Lake Landfill has yet to be cleaned-up, but we may have finally found the “smoking gun” as to why it slipped through the cracks. Bottom line? During a period of agency upheaval and a “changing-of-the-guard” between the Atomic Energy Commission and Nuclear Regulatory Commission, the Federal Government dropped the ball and didn’t follow the law.

The Atomic Energy Act of 1946 and 1954 states that any distributed byproduct materials that have been mishandled must be recalled by the Atomic Energy Commission.
Atomic Energy Commission / public domain

Since publishing Part 1 of this expose last November, calls have come in from the General Counsel of the Department of Energy—the successor to the Atomic Energy Commission—to discuss the legal ramifications. We have also received calls from a number of legal experts, attorneys, and elected officials who are all investigating the matter further.

The lynchpin here is a provision within the Atomic Energy Act which states that if any nuclear byproduct material distributed by the Atomic Energy Commission (AEC) is used in a manner which violates the law or presents an ongoing public health threat, the AEC is directed to “recall” that material. This directive within the Atomic Energy Act—which is still the standing law of the land—is similar to product recalls designed to address safety issues and limit liability associated with any particular device which endangers the public. In the case of the radwaste at West Lake, a triggered recall provision would remove the threatening material.

“The Atomic Energy Act has these provisions in place to protect the public. Although litigation to coerce the Department of Energy to follow these provisions is certainly possible, I would hope that due to the present circumstances of the landfill fire, the Federal Government would pursue a remedy without delay.” — Diane Curran, Harmon, Curran, Spielberg + Eisenberg, LLP

“The Atomic Energy Act has these provisions in place to protect the public,” said Diane Curran, a leading attorney on a wide range of nuclear licensing and enforcement cases. “Although litigation to coerce the Department of Energy to follow these provisions is certainly possible, I would hope that due to the present circumstances of the landfill fire, the Federal Government would pursue a remedy without delay.”

Digging down further into the weeds, it’s clear that even the licensing structure for this nuclear waste may have violated the law. When the AEC auctioned off this material for a buck-a-ton, they licensed it as “source material” when it was really “byproduct material,” as defined by statute. In fact, virtually all of the waste and residues generated by Mallinckrodt Chemical Works during WWII and the early Cold War years was nuclear byproduct material.

Now the AEC may have accurately identified some of the substances sold as “source material,” but the radwaste dumped at West Lake clearly was not. As defined by the Atomic Energy Act of 1954 (as amended) “byproduct material” means, among other things, “the tailings or wastes produced by the extraction or concentration of uranium or thorium from any ore processed primarily for its source material content.”

This is an exact description of the uranium processing that Mallinckrodt performed for the U.S. nuclear weapons program; it is an exact description of the radioactive materials stored at the airport site (SLAPS), and then later at Latty Avenue (HISS); and it is an exact fit for what was dumped at West Lake. Here, it would seem, the legislative intent is peremptory, meaning “without debate.”

Further, this brings into the question the validity of the original licensing that the AEC granted with regard to the nuclear waste stored at the St. Louis Airport and Latty Avenue sites. Again, the licensing was for “source material,” which essentially is defined as pure uranium and thorium; but the source material was embedded in a far larger contingent of highly radiotoxic byproduct material, “raffinate,” or nuclear waste. This is where the pertinent Atomic Energy Act provisions to protect the public’s safety and national security should have kicked in—but they didn’t. It was as if the AEC wanted to get rid of all the material in one fell swoop, outsourcing federal responsibilities, pretending the waste wasn’t even there. In erroneously granting source material licenses for byproduct material, the Federal Government offloaded tens of thousands of tons of radioactive waste and, in essence, erased it from their balance sheet.

The fact that West Lake radwaste is byproduct material has even been recognized by the Federal Government.

In an EPA Administrative Order from 1993, the “Findings of Fact” state: “In 1966, the Atomic Energy Commission (“AEC”) sold 8,700 tons of leached barium sulfate, together with other radioactive residues, to Continental Mining and Milling company (“Continental Mining”). The radioactive residues were generated as by-products of uranium processing performed by the AEC’s contractor. These processing residues were stored at the AEC’s St. Louis Airport Storage Site (“SLAPSS”).”

“It appears agencies like the EPA are doubling down on past mistakes and only want to dig deeper when what the Federal Government should be digging is the radioactive material out of this community.”

After the dumping at West Lake occurred, which included Latty Avenue “topsoil,” tests of Latty Avenue revealed, “thorium and radium contamination in excess of federal guidelines was found in and around the buildings and in the soil to depths of 18 inches.” This leads to the conclusion that the 39,000 tons of Latty Ave topsoil was actually an unholy concoction of contaminants associated with pretty much everything that had sat out in the open at the site—Belgian Congo Pitchblende Raffinate, Radium Bearing Residues, Colorado Raffinate, etc. Raffinate is what’s left over after the uranium has been chemically extracted—again, an exact match for what’s defined as “byproduct material” in the Atomic Energy Act.

These various forms of radwaste also contaminated Coldwater Creek which acted as a mode of transport throughout north St. Louis County. Latty Avenue was included in the St. Louis-based Army Corps of Engineers FUSRAP clean-up program and you can read here about how numerous adjacent properties, haul routes, local parks, churches, and even people’s backyards were contaminated and included in the clean-up. This messy migration of radioactive substances has occurred with every site in St. Louis and yet if we are to believe the current landfill’s paid-for experts, and now even the EPA, somehow this is not possible with the uncontained West Lake radwaste—for those tethered to common sense, a ridiculous assertion on its face. It appears agencies like the EPA are doubling down on past mistakes and only want to dig deeper when what the Federal Government should be digging is the radioactive material out of this community.

Cotter Corporation’s unauthorized handling of its licensed material unquestionably broke the law and violated AEC regulations. However, questions remain as to how complicit the Federal Government was in the misconduct. As pointed out in a St. Louis Post-Dispatch article by Jacob Barker, the inheritor of Cotter’s liability for West Lake, Exelon Corporation, claims nothing illegal happened.

“This whole thing [dumping of radwaste at West Lake] was done under the watchful eye of the Atomic Energy Commission,” said Craig Nesbit, Vice-President of Communications for Exelon, owner of infamous Three Mile Island and the largest operator of nuclear power plants in the United States.

Despite later damning inspection reports from the AEC and NRC stating the dumping was unauthorized, Exelon seems unperturbed. “That’s 10 years after the fact,” explained Nesbit, “and everything that was done was done with the full knowledge of the AEC. So I don’t know with what validity an agency can come back later and say that wasn’t the right thing to do.”

The legal team representing Exelon may be relying on a legal concept similar to “laches,” which is based on the maxim that ‘equity aids the vigilant and not those who slumber on their rights.’ The AEC and NRC failed to officially sanction or take action against Cotter and instead terminated its license in 1974. This lapse in regulatory oversight or legal action by the Federal Government is offered by Nesbit as evidence of Cotter’s compliance with the law.

There are also questions with regard to the propriety of the AEC auctioning byproduct material and licensing it as “source material,” while explicitly stating up-front that it would not repurchase any recovered material. It remains to be seen whether any of these lapses of behalf of the Federal Government can be rectified 43 years later.

“Currently, the U.S. Department of Energy has subsumed the Atomic Energy Commission, and if the law still stands, is under order to retrieve the mishandled radiologically contaminated material.”

It’s certainly plausible that the lack of oversight and bungled handling of the material was not conspiratorial on the part of the AEC, only grossly incompetent and negligent. The new revelation would also seem to suggest that the financial responsibility of cleaning-up West Lake only resides with two parties—the U.S. Government and Cotter Corp. (Exelon). The EPA’s Superfund legal apparatus listing three PRPs or “potentially responsible parties” all came after the fact and theoretically could be challenged. This is because the U.S. Department of Energy has subsumed the Atomic Energy Commission, and if the law still stands, is currently under order to retrieve the mishandled radiologically contaminated material.

To read Part 1 of this series, click here.

To subscribe to this author’s updates concerning the West Lake Landfill story, click here.

http://www.examiner.com/article/part-2-does-existing-law-already-order-the-recall-of-radwaste-at-west-lake

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