September 12, 1996
Daniel A. Dreyfus, Director
Office of Civilian Radioactive Waste Management
RW-1 Room 5A-085
Department of Energy
1000 Independence Avenue, S.W.
Washington, D.C. 20585
Dear Mr. Dreyfus:
Enclosed are the comments of the Western Interstate Energy Board's High-Level Radioactive Waste Committee on the Department of Energy's Notice of Proposed Policy and Procedures for Safe Transportation and Emergency Response Training; Technical Assistance and Funding for the transportation of spent nuclear fuel and high-level radioactive waste.
The Committee appreciates the opportunity to provide input during the Department's process of developing its program for implementing assistance to states under Section 180(c) of the Nuclear Waste Policy Act (NWPA). The Committee finds the 180(c) policy outlined in the current Notice unacceptable because it ignores the policy decisions made by Western Governors over the past five years as stated in various resolutions of the Western Governors' Association, and because it is totally inadequate to protect the public health and safety.
The Committee's analysis strongly supports the position of Western Governors that the Notice jeopardizes western states' ability to assure the safe and uneventful transportation of NWPA shipments. In preparing to receive such shipments, the funding of individual state and tribal programs must be based on specific assessments of need performed by states and tribes. DOE should not attempt to impose its own arbitrary funding formula on these jurisdictions.
It is unfortunate that the Notice ignores DOE's successful experience with cesium shipments and with the preparations for WIPP shipments. This experience demonstrates that the first step in preparing to receive nuclear waste shipments must be a state assessment of needs along shipping corridors. Even a cursory estimate of the amount of funds which would be provided to states under the program outlined in the Notice reveals a serious lack of funding for critical activities and clearly illustrates the inability of the federal government to properly assess individual state and tribal needs.
The Committee does not believe that NWPA shipments can occur in early 1998 without jeopardizing the health and safety of western citizens in corridor states. Beyond 1998, for shipments to occur safely, the Committee urges OCRWM to alter its approach in the Notice in order to implement a Section 180(c) program which is grounded on an assessment of needs along shipping corridors.
Finally, the Committee respectfully reminds the Department of the western governors' position that no shipments of spent fuel and HLW shall be made to storage facilities or a repository until the Department has identified shipping routes and Section 180(c) funds and assistance have been made available to states at least three years prior to the start of shipments.
The Committee looks forward to working with DOE to fashion a more workable approach to implementing Section 180(c).
Sincerely,
(signed)
Daniel Nix, Co-Chair
High-Level Radioactive Waste Committee
(signed)
Richard Moore, Co-Chair
High-Level Radioactive Waste Committee
cc: Corinne Macaluso
Western governors have adopted clear policies on the implementation of Section 180(c) of the Nuclear Waste Policy Act in three separate Western Governors' Association (WGA) resolutions. These comments of the High-Level Radioactive Waste Committee ("Committee") amplify on the key points addressed by western governors in these resolutions and relate the governors' policies to the contents of the proposed Section 180(c) policies and procedures.
Governors' Positions
1. The Governors believe it is the responsibility of the generators of spent fuel and HLW and the federal government, not the states, to pay for all costs associated with assuring safe transportation, responding effectively to accidents and emergencies that will inevitably occur, and otherwise assuring public health and safety. [WGA Resolution 96-019, June 24, 1996]
The Committee reminds DOE that the Nuclear Waste Fund was created to fund all aspects required of a program to dispose of spent nuclear fuel and high-level waste. Transportation has always been an essential part of such a program. The Committee believes that it is penny wise and pound foolish for DOE to reduce the amount it spends on transportation in order to divert a larger and larger share of funds towards the construction of a repository or interim storage facility.
The Committee strongly disagrees with the statement in the Notice that Section 180(c) funding is only to provide jurisdictions assistance an "increment" above their current level of preparedness. (p15) The Committee finds no justification in law or logic for the conclusion that Section 180(c) funds should not be used to pay the full cost of preparing for shipments of spent fuel and HLW. Failure to fund such costs out of Section 180(c) funds will result either in shipments occurring without needed preparations or a new federal unfunded mandate, the cost of which will be picked up by taxpayers along the shipping route.
For instance, under the Notice, states, tribes and local governments will be required to pay the costs of critical activities, including, but not limited to:
The Committee is concerned that the magnitude of these unfunded costs, coupled with DOE's decision not to issue regulations to guide the implementation of Section 180(c) is an effort to avoid complying with Executive Orders 12866 and 12875. Regardless of DOE's characterization of the Notice as "policies and procedures," the Committee believes the content of the Notice requires that Executive Orders 12866 and 12875 apply.
Executive Order 12866 defines "regulation" as "...an agency statement of general applicability and future affect, which the agency intends to have the force and effect of law, that is designed to implement, interpret, or prescribe law or policy or to describe the procedure or practice requirements of an agency." The Committee believes that the action contained in the current Section 180(c) Notice of Proposed Policy and Procedures, which is designed to implement a DOE policy with regard to providing assistance to states and tribes, clearly meets this definition. DOE is therefore subject to the requirements of Order 12866 and, under Section 4 of Order 12875, is also subject to the requirements set forth in Order 12875.
According to the mandate of Order 12875:
"...no executive department or agency shall promulgate any regulation that is not required by statute and that creates a mandate upon a State, local, or tribal government, unless: (1) funds necessary to pay the direct costs incurred by the State, local, or tribal government in complying with the mandate are provided by the federal government; or (2) the agency, prior to the formal promulgation of regulations contained in the proposed mandate, provides to the Director of the Office of Management and Budget a description of the extent of the agency's prior consultation with representatives of affected State, local, and tribal governments, the nature of their concerns, any written communications submitted to the agency by such units of government, and the agency's position supporting the need to issue the regulation concerning the mandate."
The Committee believes that the policies and procedures outlined in the Notice violate the President's clearly stated regulatory objectives. To wit, the provisions of the current Notice will not provide the funding necessary to pay all of the direct costs which will be incurred by state and tribal governments to protect the welfare and safety of their citizens in the face of a federally mandated nuclear waste shipping campaign. Furthermore, to the Committee's knowledge, DOE has not provided the Office of Management and Budget with the required report.
Taken together, it is hard to avoid the conclusion that the effect of the Notice is to shift the cost of preparing for spent fuel and HLW shipments from those who will benefit from the shipments to local taxpayers in corridor states and tribes. As currently written, the Notice therefore violates the governors' tenet that the beneficiaries of the transportation of spent fuel and HLW, not local taxpayers, should pay the costs associated with such shipments.
2. The Governors believe that: (1) funding formulae for Section 180(c) assistance to states must not be based on arbitrarily-established DOE criteria, but on state-specific assessments of need funded under Section 180(c); (2) flexibility must be provided for state and tribal expenditure of funds necessary to meet minimum needs; and (3) preparation and response activities along a route should be coordinated through Regional Training Advisory Teams. [WGA Resolution 96-019, June 24, 1996; WGA Resolution 94-005, June 14, 1994]
Based on the positions of western governors, the Committee takes issue with three key elements in the Notice: (1) the premise in the Appendix of the Notice that DOE knows the total amount of money needed to ensure states, tribes and local government are prepared for NWPA shipments; (2) the decision to allocate Section 180(c) funds on the basis of an inflexible formula with no discretionary funds which can be used to meet state and tribal needs not covered by the base assistance allocation; and (3) the fact that the Notice prohibits the expenditure of funds for certain activities.
It is disturbing that in the Notice DOE assumes that it knows the total amount of funds needed to prepare for spent fuel and HLW shipments. By adopting the funding formula in the Appendix, DOE has, with no analysis to justify its assumption, prejudged the level of total funds which need to be appropriated to fund Section 180(c). Such an approach is especially flawed since it fails to identify the modes of transportation and the routes to be used in transporting radioactive waste to a repository or interim storage facility. Such a route and modal analysis is necessary before any determination of total funding levels can be accurately made.
In contrast to the approach proposed in the Notice, the Committee believes DOE should promulgate regulations which "[p]rovide for the development and funding of state and tribal plans that identify:
(1) the minimum elements necessary to ensure safe routine transportation and procedures for dealing with emergency response situations,
(2) the current capabilities along each corridor,
(3) the activities needed to achieve minimum elements, and
(4) performance measures to evaluate programs implemented under the plan." [WGA Resolution 94-005, June 14, 1994]
Beyond the question of the total amount of money that needs to be appropriated to fund necessary activities under Section 180(c), there remains the question of how such funds should be allocated. While the Committee concurs that some base formula would help expedite this allocation, it rejects the rigid formula proposed in the Appendix. Instead, the Committee again recommends the approach endorsed by WGA and contained in WIEB's 180(c) Strawman Regulations submitted to DOE in 1994. This approach calls for 75 percent of Section 180(c) funds to be allocated based on cask-miles and for 25 percent to be allocated to ensure minimum funding levels and program capabilities in each state and tribe. The 25 percent allocated for discretionary funding is crucial in being able to match resource allocations to the needs identified in each state/tribal plan.
The regulations should also provide for flexibility in the expenditure of Section 180(c) funds by states and tribes pursuant to the provisions contained in the state or tribal plans. To provide states with a means of coordinating their approach to developing state and tribal plans, DOE regulations should "[e]stablish Regional Training Advisory Teams of states and tribes to review and coordinate plans along shipment corridors and a National Training Advisory Committee to report to the Department of Energy on progress and needed additional actions." [WGA Resolution 94-005, June 14, 1994]
The Committee rejects the proposition in the Notice that DOE knows which activities are appropriate to fund under Section 180(c) and which are not. For example, the Notice limits a state/tribe to budget no more than ten percent of each year's 180(c) funds to purchase "appropriate (i.e., training-related) equipment."(p11) Such a limitation is inappropriate and unnecessary. Certain states, especially those which have greater past experience with spent nuclear fuel or high-level radioactive waste shipments, may have more of the equipment necessary to ensure the safe routine transportation of such shipments. Other states, however, may have little or no equipment. In preparing to receive NWPA shipments through their jurisdictions, all states and tribes should be allowed to assess their own requirements with regard to equipment needs and should be given the flexibility to expend their 180(c) funds accordingly.
In another example of unjustified restrictions on the use of Section 180(c) funds, the Notice states that "Section 180(c) funds would not be available for the conduct of drills and exercises."(p12) The Committee believes that drills and exercises are an essential and integral part of the training process for emergency response personnel.
The Committee does support the proposal in the Notice to provide direct grants to states and tribes as the means for making Section 180(c) funds available. Such an approach is the most efficient and cost-effective method to distribute such funds and avoids the expense associated with using other federal agencies or bureaucracies.
3. The Governors continue to insist that no shipments of spent fuel and HLW shall be made to storage facilities or a repository until DOE has identified shipping routes and Section 180(c) funds and assistance have been made available to states at least three years prior to the start of shipments, notwithstanding any sudden changes in DOE's shipping schedule. [WGA Resolution 96-019, June 24, 1996; WGA Resolution 95-020, June 26, 1995; WGA Resolution 94-005, June 14, 1994]
The Committee believes that the proposal in the Notice to begin the grant application process four years prior to the commencement of shipments may provide adequate time for assistance under Section 180(c) to begin at least three years prior to the start of shipments (assuming no route adjustments under HM 164 are needed). However, the Notice fails to clearly articulate that no shipment can be made through any state or tribe unless Section 180(c) assistance has been provided three years prior to shipment, and the state/tribe is adequately prepared to assure safe routine transportation as well as effective emergency response. Such a requirement must be clearly stated in the Department's 180(c) policy and procedures.
In light of the United States Court of Appeals Decision in Indiana Michigan Power Company, et al, v. Department of Energy and United States of America, in which the court decided that DOE has an obligation to begin disposing of utility spent nuclear fuel in January 1998, the Committee is greatly concerned that the Department will attempt to begin an NWPA shipping campaign without providing 180(c) funding at least three years in advance. A crash program to implement Section 180(c) in the 16 months before shipments could begin will be chaotic and expensive, and could jeopardize the safety of citizens in corridor states. This is particularly true in light of the fact that the Department has failed to identify shipping routes or develop a comprehensive transportation plan or to allow for state adjustments to chosen routes, as authorized under HM 164. In order to properly focus limited funds for emergency response preparedness, states and tribes must be made aware of shipping routes well in advance of when Section 180(c) assistance begins to be received. This means that routes must be determined by DOE earlier than "two years prior to the shipments going through a jurisdiction" as stipulated in the Notice (p9). The Committee reemphasizes the position of western governors that "...as a result of federal government inaction and delays, and inadequate strategic planning involving stakeholders, a national transportation system cannot be in place in time to begin accepting spent nuclear fuel in 1998." [WGA Resolution 95-020, June 26, 1995]
With regard to the statement in the Notice that "[i]n general, jurisdictions may receive an additional amount of funding and technical assistance if asked to complete activities in shorter amounts of time" (p10), the Committee supports DOE's recognition of the extra expenses which necessarily accompany a lack of systematic transportation planning in the event early shipments occur. However, the Committee reinforces the views of western governors that "the safe and uneventful transport of nuclear waste — must be paramount in all federal policies affecting nuclear waste transportation." [WGA Resolution 95-020, June 26, 1995] One of the most important factors in ensuring such safe and uneventful transportation is adequate planning for shipments. Shipments must not be linked to an artificial schedule, but instead should occur only after sufficient planning and preparations have taken place to reasonably ensure their safety. The Committee therefore believes that increasing the amount of funding and technical assistance cannot fully compensate for inadequate preparation and planning time.
4. The Governors strongly recommend that Section 180(c) regulations should apply to all shipments to a Monitored Retrievable Storage facility and repository regardless of whether such facility is operated by the Department of Energy or another entity. [WGA Resolution 95-020, June 26, 1995; WGA Resolution 94-005, June 14, 1994]
The Notice should provide that Section 180(c) funds will be provided regardless of whether shipments are made to a facility operated by the Department of Energy. Western states and tribes must be assured that assistance will be provided with respect to any spent nuclear fuel or high-level waste shipments through their jurisdictions. The Committee believes that the definition in the Notice of "safe routine transportation" should be expanded to clearly include shipments of spent nuclear fuel/high-level waste to a repository, interim storage facility, or any other facility that may be developed for storage or disposal, regardless of whether such facility is developed by the federal government or by private entities.
5. The Governors believe that DOE must adopt regulations to implement Section 180(c). [WGA Resolution 96-019, June 24, 1996; WGA Resolution 95-020, June 26, 1995; WGA Resolution 94-005, June 14, 1994]
As the Committee stated in its May 4, 1995 comments to DOE's January 6, 1995 Notice of Inquiry on technical assistance and funding to states under Section 180(c), the Committee believes that it is necessary for OCRWM to establish its grant program in regulations. The Committee therefore objects to OCRWM's proposed policy in the Notice that "[i]n order to preserve flexibility, the Department does not presently plan to codify the policy and procedures in this notice as substantive regulations."(p6) The implementation of Section 180(c) through regulations is needed to ensure program stability through changes of leadership at the Department. Such stability is essential for the successful implementation of a program which will cover 30 or more years and innumerable jurisdictions in more than 40 states. The Committee believes that DOE's enabling act (42 USCA §7191) and the Administrative Procedure Act both permit expeditious rulemaking that would not delay assistance under Section 180(c).
Conclusion
Western Governors have found that the Section 180(c) implementing policies and procedures proposed in the May 16, 1996 Federal Register notice jeopardize western and other states' ability to assure safe and uneventful transport of spent fuel and HLW and, at the same time, subject states to potentially costly unfunded mandates. [WGA Resolution 96-019, June 24, 1996]
The Committee's analysis of the Notice supports the position of western governors that the Notice jeopardizes western states' ability to assure the safe and uneventful transportation of NWPA shipments. In preparing to receive NWPA shipments, the funding of individual state and tribal programs must be based on specific needs assessments performed by states and tribes. DOE should not attempt to impose its own arbitrary funding formula on these jurisdictions.
The Notice, including the Basis for the Cost of the Program as outlined in the Appendix of the Notice, underscores the fatal shortcomings of a Section 180(c) program approach based on a unilaterally imposed funding formula administered without regard to need. This approach will not provide adequate assistance to properly prepare for an NWPA shipping campaign, but will instead saddle states and tribes with expensive, unfunded mandates.