State agencies clash with Feds over contaminated land at Piketon

PIKETON, Ohio — A regulatory dispute has erupted between Ohio state agencies and the federal Department of Energy (DOE) over the transfer of Parcel 4 at the Portsmouth Gaseous Diffusion Plant in Piketon, Ohio. The Ohio Environmental Protection Agency (EPA), the U.S. Department of Energy, and the Ohio Department of Health (ODH) appear to be at odds over the adequacy of rules governing radiological contamination at Piketon, raising questions about the sufficiency of existing protocols and the potential public health implications.

Ohio EPA’s Concerns: Sampling Gaps and Land Use Restrictions

In a December 31, 2024, letter to the DOE, the Ohio EPA sharply criticized the DOE’s Sampling and Analysis Plan (SAP) for Parcel 4, a 245-acre area under consideration for public transfer. Among its 20 detailed comments, the EPA flagged issues such as insufficient sampling protocols for sub-surface contamination, inadequate focus on contamination near parcel boundaries, and reliance on incomplete datasets.

One of the most contentious issues arose in Comment 17, where the EPA expressed concern about DOE’s use of land use and groundwater restrictions to justify the transfer. The EPA emphasized:

“Ohio does not accept the use of restrictions when determining radiological release criteria. Please confirm that DOE will not consider any use restrictions when evaluating whether Parcel 4 meets radiological release criteria.”

The EPA also challenged the DOE’s assertion that certain sections of Parcel 4 could be considered “non-impacted” or “uncontaminated,” highlighting historical data that showed contamination exceeding safety thresholds.

In Comment 20, the EPA further alleged:

“The Ohio Department of Health does not have criteria or rules in place to deal with potential sub-surface radiological contamination areas for properties being released to the public.”

ODH’s Rebuttal: Regulatory Framework in Place

ODH refuted the EPA’s claims, stating that Ohio does have established rules for radiological decommissioning under Ohio Administrative Code (OAC) 3701:1-38-22. This rule, ODH explained, provides general dose limits for unrestricted property release (0.25 millisievert or 25 millirem per year).

While ODH acknowledged that OAC 3701:1-38-22 does not explicitly address sub-surface contamination or properties near waste disposal areas, it emphasized its reliance on the industry-standard RESRAD-ONSITE modeling program. This tool evaluates multiple exposure pathways, including:

1. Direct external radiation from radionuclides in soil.
2. Inhalation of airborne radionuclides.
3. Incidental ingestion of soil.
4. Ingestion of crops grown in contaminated soil.
5. Ingestion of livestock products exposed to contamination.
6. Consumption of contaminated water.
7. Ingestion of aquatic food from contaminated sources.
8. Inhalation of radon from contaminated soil.

ODH underscored its long-standing experience with DOE decommissioning projects and its role in enforcing compliance with state standards.

Parcel 4: A Complex Contamination History

Parcel 4 is a mix of areas with varying contamination levels. Some sections are considered non-impacted, while others have confirmed releases of hazardous substances. The DOE’s October 2024 report proposed transferring the parcel under CERCLA 120(h)(3), a mechanism that permits the transfer of remediated properties but requires robust evidence of environmental safety.

The Ohio EPA, however, has raised concerns about DOE’s approach to sampling and evaluation. The agency called for more extensive sampling along contamination boundaries and argued that DOE’s reliance on restrictive land-use covenants is insufficient to guarantee long-term safety.

Ohio EPA’s Revised Position

After ODH’s rebuttal, the Ohio EPA revised its statement on Comment 20, retracting its claim that ODH lacks rules for managing sub-surface contamination. While acknowledging the existence of OAC 3701:1-38-22 and the use of RESRAD-ONSITE, the EPA maintained that these measures do not fully address the unique challenges posed by sub-surface contamination and adjacent parcels.

Broader Implications

The dispute underscores potential gaps in Ohio’s regulatory framework for addressing complex contamination scenarios. While ODH insists that existing rules are adequate, critics argue that the lack of specific guidance leaves room for ambiguity, particularly in high-stakes property transfers like Parcel 4.

Additionally, the debate raises questions about legislative oversight. No new legislative efforts have been proposed to develop specialized rules for sub-surface contamination or properties near waste disposal areas.

DOE Under Scrutiny

The DOE now faces intensified scrutiny as it works to finalize the transfer of Parcel 4. In addition to meeting the requirements of CERCLA 120(h)(3), the agency must address the Ohio EPA’s detailed critiques and demonstrate compliance with state and federal standards.

The transfer of Parcel 4 represents a critical test for Ohio’s ability to manage environmental decommissioning and public health risks effectively. As the DOE, ODH, and Ohio EPA work to resolve their differences, the outcome will have significant implications for future property transfers and public confidence in regulatory processes.