November 29, 1995
RE: OCRWM Transportation Report
Dear Ms. Macaluso:
Enclosed are the comments of the Western Interstate Energy Board's High-Level Radioactive Waste Committee on DOE's OCRWM Transportation Report.
The Committee appreciates the opportunity to provide input during the process of producing a radioactive waste transportation plan which is both workable and acceptable to stakeholders. Although the Committee is pleased that OCRWM appears to be attempting to work towards resolving the variety of institutional issues related to the transportation of spent nuclear fuel and high-level waste, the Committee continues to be disappointed with OCRWM's lack of overall progress in transportation planning. The Transportation Report boldly underlines this lack of progress. The Committee wishes to emphasize that what is most needed for the OCRWM transportation program is not a report on current developments, but a comprehensive transportation plan.
Despite the fact that legislation and litigation could force nuclear waste shipments to occur as early as 1998, OCRWM clearly has not advanced past the preliminary stages of planning on the issues critical to ensuring the implementation of a safe and effective transportation system. The Committee believes that it may already be too late to avoid major disruptions, conflicts, and litigation should shipments to an interim storage facility be forced to occur in 1998.
Sincerely,
cc: Dan Dreyfus, Director Office of Civilian Radioactive Waste Management
Linda Desell, Director Environmental and Operational Activities Division
The High-Level Radioactive Waste Committee (the Committee) offers the following comments on the June 1995 Office of Civilian Radioactive Waste Management's (OCRWM) Transportation Report. The Committee has focused its comments on Chapter Three of the Report entitled "Transportation Institutional Issues."
Prenotification
The Report provides that an organization licensed by the NRC must notify the governor or the governor's designee, before shipping spent fuel through a state. The Report also states that "each notice must be in writing and postmarked at least 7 days before the planned shipment." (p.15) Although such notification may be the minimum prenotification legally required of OCRWM, the Committee believes that at least three to five years is necessary to provide adequate notice of any shipping campaign and to allow emergency responders and other state personnel to adequately plan and prepare for other emergencies or contingencies which might arise.
The Report states that the Transportation Tracking and Communications System (TRANSCOM) "could be used to inform State or tribal officials of scheduled shipments." (p.16) As the Committee has previously stated, OCRWM should provide for the training of new users on TRANSCOM, and provisions should be made to assist states in accessing or acquiring the system. Also, if OCRWM intends to use a system other than TRANSCOM, this system should be clearly identified along with provisions for training users on the new system.
Highway, Rail, and Barge Routing
The Committee has in the past recommended an approach for the selection of both highway and rail routes for shipments under the Nuclear Waste Policy Act (NWPA).See the Committee's Comments of the Western Interstate Energy Board High-Level Radioactive Waste Committee on the DOE Discussion Papers on Highway and Rail Route Selection, (1995). This approach is based on three primary goals:
1. Promote public acceptance of the selected route by eliminating the carrier's role in selecting routes and substituting defensible route-specific analyses and appropriate mitigation measures;
2. Allow resources (for inspections, emergency response, etc.) to be focused by limiting shipments to as few routes as possible; and
3. Give states and communities sufficient time to prepare for shipments by eliminating the uncertainty regarding which routes will be used well before shipments begin.
With regard to highway routing, the Report states that "...DOE plans to gather public comments on routing criteria and develop a DOE-wide routing policy." (p.17) The Committee believes that such a Department-wide policy is crucial to the development of an effective routing methodology, and that DOE should play a central role in selecting highway shipment routes. The Committee is concerned, however, that DOE is still in the discussion phase of its routing policy development. With the possibility of legislation and litigation forcing spent fuel shipments to occur in 1998, DOE must immediately begin taking affirmative steps to define its Department-wide routing policy.
The Committee reiterates its position that the establishment of External Modal Working Groups (or other methods of securing stakeholder input) is a necessary step in the evolution of a routing strategy. Such Working Groups were proposed in DOE's Preliminary Draft Strategy for Development of a Route Selection Guidance Document for DOE Unclassified HRCQ Shipments (June 7, 1994). As stated in our September 30, 1994 comments on the Preliminary Draft Strategy, and in our April 26, 1995 comments on DOE's Discussion Paper: Highway Route Selection for DOE Unclassified HRCQ Shipments, we request that members of the WIEB High-Level Radioactive Waste Committee be appointed to such Working Groups.
Regarding rail routing, the Report states that "OCRWM has not yet established criteria for selecting rail routes." (p.18) The Committee again emphasizes that, in view of the possibility of spent fuel shipments occurring in 1998, OCRWM must take immediate action to establish a workable and effective rail routing methodology.
The Report refers to several positions taken by the Association of American Railroads (AAR) on rail routing issues. The Committee does not agree with the AAR position that "[c]urrent Federal regulation and industry self-regulation are adequate." Without a firm federal rail routing methodology in place to establish routes for NWPA shipments, railroad companies will seek to maximize revenues by keeping such shipments on their rail lines for as many miles as possible. Such a process will not necessarily result in the selection of the safest route possible, which the Committee believes is of paramount importance.
Nor does the Committee concur with the implications of the AAR position that "[t]here are limits to what public participation can contribute to setting policy for rail shipments of spent fuel and high-level waste." Citizens in western states, especially those residing in close proximity to where rail shipments may occur, have a vital interest in the process of selecting which rail routes will be used for NWPA shipments. As mentioned above concerning highway routing issues, the Committee believes that the establishment of External Modal Working Groups is essential in developing a rail routing strategy which is acceptable to all parties concerned.
Inspection and Enforcement
The Committee agrees with the statement in the Report that inconsistencies in state requirements for registering, permitting, and collecting fees from shippers and carriers "can delay shipments and increase costs." (p.19)
The Committee also agrees with the recommendation by the Alliance for Uniform HazMat Transportation Procedures proposing a voluntary "base State" approach to dealing with differences in state requirements. This proposed approach would require carriers to apply for permits either in their home states or in the states through which they carry the most hazardous materials, whichever has stricter requirements.
Emergency Response
The Committee is encouraged by the Report's statement with regard to the provision of funding and technical assistance under section 180(c) of the NWPA that "OCRWM intends to begin this assistance 3 to 5 years before beginning its shipments." (p.20) As stated in its comments on DOE's Transportation Contingency Plan for Limited Capacity Shipment, Revision 1, except in the case of very limited, short-haul shipments, the Committee disagrees with any attempt by OCRWM to ignore its commitment to provide Section 180(c) assistance at least three years prior to shipment. Considering the possibility that legislation and litigation could force DOE to begin accepting spent fuel in 1998, DOE should establish its 180(c) program immediately. Furthermore, given the funding reductions which DOE currently faces, the Department should specify the amount of dollars budgeted each year for 180(c) assistance.
The Committee notes that the resolution referred to in the Report concerning Section 180(c) assistance was passed by the Committee as well as the Midwestern High-Level Radioactive Waste Committee, and the Southern States Energy Board Advisory Committee on Radioactive Materials Transportation. (p.21) A similar policy statement has also been adopted by the Western Governors' Association.
The Committee also notes that it provided comments to OCRWM's January 1995 notice of inquiry in the Federal Register concerning Section 180(c) assistance. In these comments, the Committee indicated that its preferred option for implementing Section 180(c) was through an OCRWM Grant Program established in regulations which provides flexibility for states to coordinate the OCRWM program with other transportation safety programs, while ensuring that the unique hazards presented by NWPA shipments are addressed. The Committee also stated that DOE must move expeditiously towards implementing Section 180(c), and that it is now impossible to have adequate preparations in place for shipments to begin in January 1998.
Cask Design and Testing
The Report indicates that OCRWM may rely on multi-purpose canisters (MPCs) and GA 4/9 legal-weight truck casks to transport spent nuclear fuel and high-level waste (SNF/HLW) in its transportation system. With regard to obtaining NRC certification of cask designs, the Report states that extensive cask tests are required, and that "[s]cale models, generally a quarter or half size, have been used for these tests." The Report further states that "OCRWM is now reviewing its options for testing transportation casks. This involves weighing the costs and benefits of testing full-scale casks." (p.23)
The Committee wishes to restate its long-standing position that full-scale testing of casks used in the transportation of nuclear waste is necessary in order to demonstrate the safety of nuclear waste transportation to the public as well as the technical community. The importance of such a program of full-scale cask testing to stakeholders across the country was demonstrated in the passage of an April 1995 joint resolution by the Committee, the Southern States Energy Board Advisory Committee on Radioactive Materials Transportation, and the Midwestern High-Level Radioactive Waste Committee. This resolution calls on the U.S. Department of Energy to conduct full-scale testing including sequential tests (free drop, puncture, thermal, and immersion) "as an integral component of the process for certifying spent-fuel shipping casks."
In a November 7, 1995 DOE press release, DOE states that it will "cease to be the lead agency on the environmental impact statement (EIS) covering the selection and deployment of a container system for spent nuclear fuel storage, transportation, and disposal," and that "[t]he Department of the Navy...will become the lead agency." The Committee believes that the Report should address the implications of DOE turning control over MPC development to the Navy.
Mixture of Transportation Modes
The Report states that "[u]tilities will decide how they will package spent fuel for transportation," and that "[t]he type of shipping cask used will determine what modes can be used." The Report concludes from these statements that "OCRWM will have limited control over mode mix." (p.24) However, under the terms of the Standard Contract for Disposal of Spent Nuclear Fuel and/or High-Level Radioactive Waste, it is DOE's responsibility to "arrange for, and provide, a cask(s) and all necessary transportation of the SNF and/or HLW from the Purchaser's site to the DOE facility."(10 CFR 961.11) If, as the Report claims, the type of shipping cask provided also determines the mode used, then according to the Standard Contract, DOE is responsible for both providing the casks, and by implication, for determining which mode will be utilized.
Infrastructure Improvements
With regard to shipments by legal-weight truck, the Report states that "[t]hese shipments should not create a need for infrastructure improvements." (p.24) The Report further states that "[i]f MPC's are used...They should not create a need for infrastructure improvements." (p.25) The Committee disagrees with both of these statements. Due to the nature of radioactive waste shipments, the Committee feels that the use of both legal-weight trucks and MPCs may require infrastructure improvements to be made along both highway and rail routes used for NWPA shipments. For instance, the Report should address the costs and impacts of using heavy haul trucks to transport MPCs both from reactor sites to rail lines, and from rail lines to a facility at Yucca Mountain. The Committee believes that the use of heavy haul trucks will require significant infrastructure improvements, including increased highway maintenance and the construction of new facilities.
The Report asks the question of "whether utility customers in one area should help pay for highly localized improvements in another area." (p.25) The Committee believes that those who benefit from the shipment of radioactive wastes (nuclear utilities and their customers) should pay for the cost of safely shipping those wastes to a storage facility. Corridor states receive absolutely no benefits from NWPA shipments. In fact, such shipments do little more for corridor states than present potential health and accident hazards. The Committee believes that "highly localized" improvements along shipping corridors are the necessary costs of ensuring that NWPA shipments travel safely through corridor states.
Operational Procedures
The Committee requests copies of the CRWMS Requirements Document, the Transportation System Requirements Document, and the Transportation Subsystem Operations Plan.
The Report states that a major objective of the new OCRWM program approach is to "[d]evelop the technical and institutional capability to accept and transport spent fuel from reactors to a storage facility, if and when such a facility becomes available (as early as 1998)." (p.26) However, the Report makes no mention of the Transportation Contingency Plan for Limited Capacity Shipment, which the Department released earlier this year for comment. As stated in its comments on the Contingency Plan, the Committee believes that it is not possible to have 1998 waste acceptance under any program, other than for extremely limited transshipments and/or emergency shipments. An important part of preparing even for such limited transshipments, however, is the completion of a Contingency Plan which: (1) clearly establishes the objectives of the Transportation System; and (2) provides a detailed plan to accomplish these objectives and evaluate alternatives. OCRWM's last revision of the Contingency Plan (Revision 1) failed to adequately meet either of the above requirements.
State, Tribal, and Local Regulation
The discussion of State, Tribal and Local Regulation on page 26 exhibits a fundamental misunderstanding of the federal system of government. Contrary to the assertion that "[t]he U.S. Constitution delegates to States those powers that are not reserved for the federal government," the Tenth Amendment of the U.S. Constitution actually reserves to the states all powers which are not specifically delegated to the federal government.
In addition, the relationship between the federal government and states is very different from the relationship between states and local governments. Local governments are subdivisions of state governments. States are not subdivisions of the federal government. Finally, the Committee questions the legal accuracy of the assertion that Courts have ruled federal law preempts any state or local law that "...presents an obstacle to congressional objectives..." (p.26)
Other Comments
On page 13 the Report states that as part of OCRWM's development of plans for specific shipping campaigns, OCRWM will prepare an Annual Campaign Plan, a Campaign Plan, a Unified Data Base, and Site-Specific Servicing Plans. However, the Report does not provide any indication as to the timing of when these documents will be released.
In Appendix A of the Report, OCRWM failed to include one of the crucial elements of WIEB's comments on the 1994 draft document entitled Transportation Plan: Developing the Transportation System. In its comments on this draft document, WIEB stated that the most significant shortcoming of the Plan was its failure to evaluate alternative configurations of the transportation program. Without such an evaluation, the Committee believes that it is not possible to understand the linkages between transportation and other elements of the NWPA program or to determine transportation impacts and appropriate mitigation strategies. The Committee recommended that the next iteration of the Plan should be built around an analysis of a limited number of alternative program scenarios, and that other potential scenarios should be identified, but not examined in depth.
Conclusion
The Committee is encouraged with the statement in the Report's conclusion that "...OCRWM will continue to work with various groups to resolve the institutional issues related to transporting spent fuel and high-level waste. High-priority issues include routing criteria, funding and technical assistance for training emergency responders, and the testing of full-size casks to verify cask designs." (p.27) As the Committee has stated in the past, each of these issues must remain a high priority, and must be properly addressed by OCRWM if a nuclear waste transportation program under the NWPA is to be successful.
The Transportation Report's stated purpose is to "report on the status of OCRWM's transportation system." (p.i) The Report does provide a general overview of the laws and regulations which govern the various areas of importance in transportation planning, including each of the "high-priority" issues mentioned in the preceding paragraph. In addition, the Report provides, in some instances, adequate coverage of the factors to consider and alternatives available in making key determinations regarding various aspects of the NWPA transportation system.
However, the fact that the Report reveals almost no concrete decisions made by OCRWM on key transportation issues reflects the reality of the current state of OCRWM's transportation planning. Such planning continues to remain in the preliminary stages, with no clearly defined policy for any of the major transportation issues which must be resolved far in advance of any shipping campaign. With the looming threat of legislation and litigation to force spent fuel acceptance in 1998, it is imperative that OCRWM move as rapidly as possible in establishing workable policies for the critical elements of its nuclear waste transportation system.
It is unconscionable that, almost 13 years after the NWPA became law, OCRWM has still not developed plans and procedures for use in transporting SNF/HLW. In any reasonably adequate systematic program planning, such logistics issues should have been addressed at the outset. It is now a matter of utmost urgency that OCRWM move expeditiously to develop detailed and specific plans and procedures for waste shipments. It may already be too late to avoid major disruptions, conflicts, and litigation should SNF shipments to an interim storage facility be accelerated by legislation or litigation.