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OCR for page 112
5
institutional Means
The preceding chapters have indicated that siting, con-
structing, and operating high-level radioactive waste
repositories involve emotional issues of public concern,
potentially significant effects associated with the
overall facility and transport network, and potentially
important socioeconomic effects localized at the reposi-
tory site and along waste transport corridors. Solving
these problems requires well-developed capabilities and
effective response by institutions, and hence relevant
institutional considerations should be examined.
At the end of 1982 Congress passed the Nuclear Waste
Policy Act of 1982 (NWPA), creating a new framework for
the management of high-level radioactive waste. The
Low-Level Radioactive Waste Management Act of 1980 had
earlier outlined institutional arrangements for handling
low-level waste. The emergence of these major policies
from the Legislative Branch, after extensive debate in
three consecutive Congresses, defines a comprehensive
national approach to the final disposition of radioactive
materials.
This chapter has three objectives:
1. To appraise the principal elements set forth in
NWPA in terms of their potential for addressing the
socioeconomic considerations integral to successful
siting and operation of a radioactive waste disposal
system based on geologic repositories;
2. To assess the adequacy of current approaches to
fostering public participation in repository site search
and selection; and
3. To analyze the current regulatory framework for
the transportation of radioactive wastes.
112
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113
INSTITUTIONAL THEMES IN THE NUCLEAR WASTE
POLICY ACT OF 1982
The Act is a complex piece of legislation. It charts a
course that will last more than a decade, culminating in
the opening of a high-level waste repository toward the
end of the twentieth century. The NWPA has been summar-
ized elsewhere (see, e.g., Nuclear Waste News 1982). In
its review of institutional issues, the panel examined
the following principal themes embodied in the Act:
1. States are accorded a substantial role in the
repository siting process. The Act requires the Secretary
of Energy to follow a policy of "consultation and coopera-
tion" in dealing with states and Indian tribes [Sec.
117(b)]. States and tribes containing a candidate site
are eligible for grants from the Department of Energy
(DOE); these grants are intended to fund independent
reviews, monitoring, and provision of information to the
public [Sec. 116(c)(1)(B)]. Once the Nuclear Regulatory
Commission grants a construction authorization for a
repository, DOE and the state are to conclude a written
agreement for impact mitigation payments to the state
[Sec. 116(c)(2)]. Perhaps most important, the Act gives
the states and tribes hosting repositories the right to
disapprove the designated site; a vote of both houses of
Congress is required to override the disapproval [Sec.
116(b)(2), 118(a), and 115].
2. The federal government is to bear the risks of
repository development on a tight schedule. Following
the enactment of NWPA but no later than January 1, 1990,
the federal government is authorized to enter into con-
tracts with electric utilities to transfer title to spent
nuclear fuel to the federal government. This contractual
commitment is intended to provide planning certainty to
the utilities in exchange for payments into the Interim
Storage Fund (Sec. 136). The Act provides for limited
federal capacity to store spent nuclear fuel, together
with a program to provide monitored retrievable storage,
that is, long-term storage in near-surface facilities.
If schedules for geologic repositories slip, this may
provide flexibility. The fund will be administered by
the Treasury of the United States, and fund payment levels
will be set by the Secretary of the DOE. The schedule
for repository development stretches over a time of at
least 15 years, yet its intermediate mileposts demand
both speed and flexibility by DOE and its contractors.
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114
State/Local Institutional Structure
The NWPA relies on the classic federalist division of
authority to define the opposing interests in repository
development. The federal government is the advocate of
the national interest in safe, efficient disposition of
spent fuel and radioactive wastes; states, through their
governors or legislatures, are presumed to speak for
locally affected populations concerned about risk, pro-
tection of property rights, due process, and other
burdens borne by those living near a proposed site.
Social research on other controversial facilities
reinforces the panel's judgment that a major institu-
tional gap exists in the framework defined in the NWPA.
There is no institutionalized process for relating the
concerns of locally affected populations to the actions
of state governors or legislatures; indeed, constitu-
tional principle dictates that state governments be
responsive to population centers whose interests are
typically different from those of rural areas likely to
host repositories. Social scientists have suggested
institutional designs for bridging such gaps in other
policy areas; this stock of design principles is suf-
ficiently well tested, in the panel's view, that it can
be used by state governments as a basis for addressing
the institutional problems pointed out below. Ignoring
this gap increases the likelihood that conflict will
spill over into tangentially related arenas that are
accessible to local populations; such spillovers threaten
to disrupt the federal programs' tight schedule.
As noted in the previous chapter, the NWPA contem-
plates substantial funding to mitigate "any economic,
social, public health and safety, and environmental
impacts that are likely as a result of the development of
a repository" [Sec. 116(c)(2)(B)]. In Sec. 116(c)(3),
the federal government undertakes to provide payments in
lieu of taxes to compensate state and local governments
for lost revenues. The Act thus makes an important state-
ment of principle: the burdens borne by those living near
the site should be mitigated and paid for by beneficiaries.
The history of other federal construction programs,
such as interstate highway construction, indicates, how-
ever, that mitigation or anticipated economic benefit is
not always sufficient to eliminate conflict (Seley 1983).
Moreover, highway planners have been repeatedly surprised
by the scope and magnitude of local communities' resis-
tance (LUPO et al. 1971).
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115
Congress chose not to prescribe institutional means to
link local populations to state governments. Whatever
the merits of so respecting the customs of federalism,
the need for such linkage is real and, in the panel's
judgment, of potentially critical importance to the
national program. The long experience of grants-in-aid,
categorical programs (including those great society
programs, particularly the Community Action Program
bypassing state and local government control), revenue-
sharing, block grants, and other elements of fiscal
federalism underscores the persistent tension between
state and local governments in the sharing of federal
money (Marris and Rein 1973, Glickman 1980). Experience
at the Western New York Nuclear Service Center (West
Valley) suggests the extent to which a state may seek
facility development at the expense of the locality
(Rates and Braine 1983).
As noted in Chapter 4, there is
no guarantee that federal assistance to states will be
used to help local communities in ways they deem useful;
the Act does permit the Secretary of Energy to negotiate
an agreement for funding with the states, and this could
in principle be used to provide indirect representation
of local community interests. In addition, localities or
states could place economic interest above technical
scrutiny, to the disadvantage of both local communities
and the long-range national interest.
Although Congress has determined that federal prescrip-
tion is inappropriate in designing institutional relations
between states and affected local governments, the void
threatens a sound institutional arrangement for repository
siting. The panel observes that relationships of this
kind have been developed, with notable successes (Brock
1982) and failures (Bacow and Milkey 1983). State laws,
such as those for selecting hazardous waste facility sites
in Wisconsin, Massachusetts, and Michigan, illustrate a
range of possibilities for institutionalizing local inter-
ests. (It should be noted, however, that radioactive
waste repositories pose a national problem, whereas
hazardous waste storage facilities address needs found
within many states' economies. Analogies between the two
kinds of facilities should be drawn with caution.
Failure to take local concerns into account can lead
to intensified conflict, although the dynamics of inten-
sification are understood only qualitatively (Cobb and
Elder 1976, Nader and Todd 1978). A mark of escalation
is the attempt to place issues in dispute onto the agendas
of institutions charged with related responsibilities.
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116
This general principle points to the likelihood that
litigation over elements of the federal program may be
used to air conflicts between local communities and
states. That DOE would be a largely innocent bystander
in such a process would do little to ameliorate the harm
done to the national siting program. Such a possibility
underscores the responsibility of state governments to
address the issue of state-local relations constructively.
Management for Operations
The NWPA creates a long-term-operational mission for DOE--
the planning, construction, and operation of at least two
high-level waste repositories (Section 114). Although
major elements of the technological design are already in
hand, this mission includes the responsibility to conduct
an ambitious research and development program, while
simultaneously creating a sizable capability to locate,
license, and build repositories and to transport, pack-
age, store, and dispose of wastes.
DOE and its predecessor agencies have established a
strong technical research and development capability.
The NWPA presents an important institutional challenge,
however, in requiring DOE to create the capacity for
operational planning and later for operations. This
capacity must include an innovative and largely unprece-
dented ability to detect and correct organizational error
(Landau 1969, LaPorte 1975). Both the transition from a
research and development to an operational form of organi-
zation and the institutional capacity to learn from mis-
takes are difficult challenges of organization and
management.
The Act recognizes the need for imaginative organiza-
tional design in its requirement for a Mission Plan in
Section 303. The Mission Plan, called for in Section
301, will need to consider organizational ideas developed
in the National Aeronautics and Space Administration and
particularly the crucial role of learning from mistakes.
Especially in new, industrial-scale ventures such as
repository development, an inability to profit from
errors dooms an organization to inadequate performance
(Hirschman 1970). Similarly, strong attention to iden-
tifying potential failures, technical, institutional, or
programmatic, is required in order that contingency
planning can proceed. These issues need to be addressed
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117
at length in DOE's Mission Plan. Despite the explicit
recognition of need for public information and participa-
tion, the NWPA also commits the federal government to a
schedule that is difficult to meet or to sustain over a
long period of time. In particular, the tight time
schedule seems likely to force DOE to choose between an
open, consultative approach and one that risks conflict
and involuntary disruption by attempting to heed congres-
sionally mandated deadlines. DOE has informally acknowl-
edged the difficulty of meeting the schedule for site
guidelines and preliminary site identification. This may
indicate a tendency to favor openness rather than speed.
Perhaps more worrisome, the study of alternative man-
agement structures for the long term has been slow in
getting started. Required by the NWPA, this study is
needed to evaluate institutional possibilites, including
a public corporation, for managing the construction and
operation of civilian radioactive waste facilities. There
is an adequate social scientific base in organizational
sociology, industrial economics, business administration,
and the study of public enterprise to support this man-
agement study. It is essential, in the panel's view,
that a judicious appraisal of management alternatives
that taps a broad range of social sciences expertise be
undertaken without further delay.
_ _
Dispute Handling
Selecting two high-level waste repositories under the
NWPA is likely to be a contentious process. The Act
recognizes this reality in many of its provisions, most
notably the right of the selected host state to disapprove
DOE's recommendation that a particular site be chosen.
In its deliberations before the NWPA was passed, the
panel discussed at length the institutional arrangements
appropriate to the settlement of the disputes likely to
arise in repository siting. A majority of the panel
agreed that a process modeled on a trial court, with the
role of judge played by the Nuclear Regulatory Commission
(NRC) or a newly created independent commission, was a
promising alternative for site selection. Choices made
by such a body could combine knowledgeable technical
review with an open, fair, reasoned process that could
win broad public confidence and withstand judicial review.
The process chosen by Congress in the NWPA is con-
siderably different. Reliance is placed on administra
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118
tive decision making by DOE, subject to a variety of
checks: the consultation process with states and tribes;
Presidential selection of sites to be characterized and
of the first sites to be used for repositories; veto power
for designation vested in states and tribes; congressional
authority to override such a veto; limited judicial
~ :~ a ~ __=
~ ~V1=W; Gnu cecnnlCa1 review by the NRC. This array of
limitations on the federal energy bureaucracy has a
common denominator: all the checks and balances, and the
administrative procedure they constrain, are formal
processes. The panel's early deliberation on the decision
process together with its study of recent literature on
dispute settlement, leads the panel to question elements
of the existing formal process and to suggest that a
constructive role may be played by more informal methods,
including public participation.
The NWPA assigns principal responsibility to DOE for
repository site selection. The administrative discretion
exercised by DOE is expanded by explicit exceptions to
existing law, in particular the National Environmental
Policy Act. On the other hand, states and Indian tribes
are accorded substantial authority to participate--with
federal funding--in the planning process. Under the Act,
the President selects a site for the first repository; if
the host state or Indian tribe disapproves this selection,
its disapproval must be overriden by a veto of both houses
of Congress.
While judicial review is limited, it is not eliminated.
Indeed, in its language excluding part of the site selec-
tion process from the established body of environmental
law, the NWPA calls for the preparation of "environmental
assessments" subject to judicial review. Because such
assessments are apparently not the same, legally, as
environmental assessments under the National Environmental
Policy Act, litigation to clarify differences is likely,
in one or more of the five candidate sites to be identi-
fied by DOE, with consequences in case law that are
impossible to foresee.
More generally, the ACt'S approach of relying on
administrative decision making puts the incentive to use
judicial means of dispute settlement near the start of
the site-selection process. The panel's earlier discus-
sions focused on putting the incentive to litigate at the
end of the selection process rather than at the beginning.
This would have been accomplished by a trial-type selec-
tion process, whose results would have been subject to
judicial review after technical and socioeconomic
evidence had been marshaled.
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119
Litigation early in a complex and technical process
often strains the judicial process. In developing evi-
dence, fashioning remedies, and monitoring their implemen-
tation, courts face substantial difficulties in these
cases (Horowitz 1976). Moreover, an adversarial procedure
can hamper the evaluation of an already difficult set of
facts, technical uncertainties, and socioeconomic consid-
erations (Harter 1982).
Adjudication contributes to environmental dispute
resolution in critical ways, however, by providing access
to the governmental arena for aggrieved parties, by bring-
ing in an impartial but legitimate decision maker (Sax
1971), and by putting the power of government behind the
settlements arrived at. The question of institutional
design, therefore, is how to make use of adjudicatory
authority, given the likelihood of serious conflict.
Since the institutional structure is now established
in law, the panel points out the useful role that can be
played by informal processes that can supplement official
administrative and judicial actions. The emergence, since
1974, of a quasi-professional practice of environmental
dispute resolution (Bellman et al. 1980, Lee 1981, Harter
1982, Susskind and Weinstein 1981, U.S. Environmental
Protection Agency 1982) suggests the possibility that
complex disputes involving many parties can be settled by
informal negotiation more effectively and more fairly than
through exclusive reliance on formal procedures. The
matters at stake are issues of public policy, of course,
so they must be adopted by the relevant government
institutions. These informal methods are accordingly
complementary to governmental processes rather than
substitutes for them.
Since the primary responsibility for repository
development is assigned to DOE in the law, authority,
expertise, and resources are highly centralized. State
governors and legislatures are given the responsibility
to represent local populations, a role that is almost
certain to create strains within potential host states.
Under these conditions the most important informal
process to employ is local public participation and the
related design approach of iterative planning.
PUBLIC PARTICIPATION
As reviewed in Chapter 4, substantial attention is
required both to the potential effect of a waste reposi
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120
tory on local publ ic groups and to the role of such
groups in siting decisions. Recent history indicates
that local public groups often perceive public facilities
to be a threat to their existing land uses, property
values, and quality of life. Although there is little
definitive research on the effect of public participation
on the acceptance of facilities, it is clear that a broad
range of individual techniques is available (U.S. Depart-
ment of Transportation 1976). While there is no generally
preferred generic form of public participation, there is
evidence that communities react very strongly when they
believe that they have been excluded from the planning
process. Local populations in Utah and Nevada, for
example, were persuaded to reverse their support for the
land-based MX mobile missile system as a result of the
perceived insensitivity of the Air Force and a suspicion
that they were being seen as expendable (Albrecht 1983).
There is also evidence that group homes for the mentally
retarded have achieved a higher rate of acceptance in
communities where participatory techniques of planning
were applied during the siting process (Lubin et al.
1982).
There is also the more general argument, stemming from
the pluralistic conception of our society, that citizens
have a right to participate in decisions that affect
their lives even though their ultimate desire to accept
or reject a project may not be granted.
A final argument is that planners can learn different
or new facts and more about community values and hidden
effects by involving citizens instead of merely relying
on predictive modeling. Neither current methods of obser-
vation nor available predictive models of social condi-
tions are sufficient to preempt local involvement.
Planning can, then, be a powerful means for discovering
local needs and desires. An approach that includes citi-
zen involvement and anticipatory assessment in planning
the siting of a waste repository has significant advan-
tages for understanding and responding to community
integrity over an approach limited to adversarial or
reactive processes.
Throughout its deliberations the panel sought to
define the various public groups and the interests that
each represented. A highly visible issue like the siting
of the first geologic repository is likely to spark
political mobilization at both the site and national
levels. AS a result, the less-well-organized and -funded
groups especially concerned the panel, because they have,
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121
with respect to some aspects of the overall waste manage-
ment problem, a large stake in the outcomes. They reside
in areas near proposed sites or along transportation
corridors or are members of the larger and less directly
affected public that has a inchoate, less-well-defined
concern about outcomes affecting the future course of the
development of nuclear power.
The panel notes the NWPA's objective that "state and
public participation in the planning and development of
repositories is essential in order to promote public con-
fidence in safety of disposal of such waste and spent
fuel" (Section 111). Realization of this goal will
require objectives and detailed procedures for each stage
of the siting process. Such involvement will also need
to consider a broad range of participation means since
past research has indicated the limitations of public
hearing as a form of participation (Checkoway 1981). The
creation of an independent technical capacity for citizens
in affected locales has, in past experience, been at the
core of an effective program of public participation.
The panel notes, however, that technical expertise for
independent review is already in short supply, a situa-
tion that may complicate the attempt by local citizens
and program officials to obtain a credible second opinion
on repository work.
Past research on public participation has also empha-
sized the importance of two-way communication between
agencies and members of the public (Hanchey 1975). Yet
DOE's current objectives for public participation con-
stitute in large measure a one-way flow of information
from the agency to the public. In this respect the panel
notes (but did not independently validate) a recent criti-
cal assessment of DOE's program for public participation
that concluded that it "exemplifies co-optation strategy;
the responsibility for power is to be shared, but little
of the power itself. Indeed, the purposes of participa-
tion, as DOE defines them, may be more to 'educate' the
public into sharing programmatic objectives and opinions
than to grant any real independent authority" (Rochlin
1981, p. 12).
The timing of participation has also been a particu-
larly crucial issue in the past. Past research on public
participation speaks strongly to the importance of early
involvement of citizens, when plans are still tentative
and options remain open (Ingram and Ullery 1977). The
NWPA outlines in only a general way the structure and
timing of public participation to be used in site search
. . . . . . . . ~
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122
ing and selection. Therefore WE's plan for public par-
ticipation appears still relevant as to the details of
the process. The major activity described in the draft
National Plan is the opportunity to review and comment on
major federal actions needed to comply with NEPA, but
that comes quite late in the decision-making process.
These procedures apply also to the promulgation of EPA's
environmental radiation standards, NRC's licensing pro-
cedures, and W T's routing requirements for transporting
radioactive materials.
The review and comment process, however, is limited as
a means of ensuring full and timely public participation.
The agency's proposed repository plans are the result of
substantial investigation and analysis. By the time the
tentative plan is published for public comment, the agency
is likely to be strongly committed to it. Under the NWPA,
the Secretary of Energy will hold public hearings in the
vicinity of each repository site under consideration, but
an environmental impact assessment is required only at
the time of site recommendation to the President (Section
114). By this time, W E is likely to be heavily com-
mitted to its sites, and it may be difficult to judge
impartially whether comments from the public warrant
changes in the proposed activity. This process is
particularly subject to public criticism if the research
and development programs on which the agency bases its
plans are perceived to be inadequate or inappropriate.
The record of effective public participation programs
suggest, then, the importance of early and broad involve-
ment of the general public, the creation of an independent
technical review capability among local citizens, and a
role for citizens early and in all subsequent stages of
site searching and selection. Since past research on
public participation, though quite extensive, does not
permit specification of preferred modes of involvement
and institutional vehicles, the treatment of the par-
ticipation program as a major research effort, with
thorough peer review and employment of a broad range of
techniques and principles followed by careful monitoring
and evaluation seems particularly advantageous. In this
regard, the efforts of the U.S. Army Corps of Engineers
in employing a broad range of participation programs,
followed by careful evaluation, over the past decade may
provide a useful model (Ragan 1975).
In this context, the NWPA shifts the ground rules of
citizen involvement in several important respects. While
the W E is subject to a wide range of institutional con
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123
straints, all of these checks and balances take the form
of formal procedures. It is left to the state governments
to decide how strong a role self-appointed representatives
of the public and nongovernmental groups will play. These
are conditions in which serious political tensions can
develop and, in particular, where the interest of those
most directly affected (i.e., the local populations near
the repository sites) may be poorly represented. The Act
does, however, allow the states considerable latitude for
citizen involvement: the panel finds that the experience
of citizen participation programs, iterative planning,
and environmental dispute resolution is applicable to the
design of informal processes in the repository siting
program.
REGULATION OF TRANSPORTATION
Chapter 3 emphasized the importance of waste transport in
the total radioactive waste management task. Over the
next few decades, interstate highways may be extensively
used for conveyance of radioactive wastes to away-from-
reactor (AFR) storage, reprocessing plants, or final
repositories. This use of common traffic arteries could
intensify public concern about the safety of waste trans-
port. The Transportation Research Board of the National
Research Council (1983) has recently noted the extent of
these concerns.
The panel has examined the regulatory structure for
such a transportation system and believes it inadequate
in several respects. First, a sufficiently broad-based
and uniform regulatory regime to assure the safe transport
of radioactive wastes may not exist; second, redundancies
and incompleteness seem to exist in the current NRC/DOT
regulations; and, third, the role of the states in ensur-
ing the safe transport of wastes within their territories
needs to be addressed further.
Transportation of spent fuel and high-level wastes is
currently regulated primarily by NRC, DOT, and DOE. Regu-
lations promulgated by NRC and DOT cover transport to and
from commercial reactors. DOE oversees transport to and
from federal research, development, and defense facili-
ties. The Interstate Commerce Commission and the Federal
Emergency Management Agency have more minor roles. The
Atomic Energy Act, the Hazardous Materials Transportation
Act, the Dangerous Cargo Act, the Price-Anderson Act, the
Railroad Safety Act of 1970, state and local laws and
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124
regulations, and laws governing Indian tribes make up the
complex statutory framework applicable to waste and spent-
fuel transportation.
Most of the transportation of commercial spent fuel is
handled by common or contract carrier. Four trucking
companies in the United States handle most of the ship-
ments of commercial radioactive material. Under NRC
regulation, common and contract carriers are exempt from
the licensing requirement; however, NRC reactor licensees'
casks are not exempt. Both shippers and carriers must
comply with packaging and other NRC and DOT safety
regulations for transporting waste-and spent fuel.
To prevent conflicts in their regulations governing
the transportation of radioactive materials, NRC and DOT
subscribed to a memorandum of understanding (MOW) in 1979,
updating the earlier DOT/AEC MOU of 1973. The memorandum
delegates to NRC the authority to certify the casks in
which spent fuel is shipped by NBC licensees. It also
charges W T to develop regulations for the packaging and
transportation of radioactive materials as a part of its
overall body of regulations for the packnaina and trann-
portation of all hazardous materials.
It further con
~lrms parlay W'1' OOCaln Nit approval or specification
package designs for shipment of radioactive materials.
The memorandum gives to NRC the authority to certify Type
B and fissile packaging designs to be used by its licen
sees. The NRC has adopted DOT's regulations applicable to
shippers. These involve proper packaging requirements,
package and vehicle radiation levels, markings and
security seals.
More is required by an NRC interim rule to prevent
sabotage or theft of spent fuel in transit. In July
1980, the NRC published for the second time its interim
regulations aimed at preventing sabotage and theft of
spent fuel shipments. According to a report by Sandia
Laboratories (1978), with whom the government had con-
tracted for cask development, the damages from successful
sabotage of a shipment in a densely populated area could
rise to $2 billion to $3 billion. The somewhat stiffer
regulations of the interim rule require any reactor
licensee who transports spent fuel or delivers spent fuel
to a carrier for transport to notify the NRC in advance
of each shipment so that the NRC can approve the route,
make appropriate arrangements with law-enforcement
agencies along the route, avoid (where practical) heavily
populated areas, schedule shipments, and provide trained
escorts. The licensee must also make arrangements
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125
relating to drivers and escorts, communications, and
vehicle immobilization. Similar requirements apply to
shipments by rail.
Congress enacted legislation in 1980 requiring NRC
licensees to notify state governments when certain types
of shipments of radioactive materials, including spent
fuel and high-level wastes, would be moving through their
states. In December 1980, the NRC issued a notice of
proposed rulemaking, by which the licensee would have to
notify, and provide information to, the governor of a
state through which a shipment would pass at least 4 days
prior to arrival at the state boundary.
Concern over the expected increase in shipments of
radioactive materials has prompted many state and local
jurisdictions to enact laws and regulations for safe ship-
ment. One such regulation has caused a legal conflict
between state and local interests and the nuclear power
industry. An amendment to the New York City Health Code
banned most commercial shipments of radioactive materials
through New York City. Pursuant to the amendment, some
spent-fuel truck shipments from Brookhaven National
Laboratories' Long Island facility were interrupted in
1976. The NRC, Energy Research and Development Adminis-
tration (now DOE), and Associated Universities, Inc.,
which manages Brookhaven National Laboratory for the W E,
challenged the constitutionality of the ordinance in
federal district court [U.S. v. City of NY, No. 76 Civ
273 (SONY, filed Jan. 15, 1976)]. The plaintiffs
requested a preliminary and permanent injunction to
prohibit enforcement of the ordinance, but the court
denied the motion for failure to show immediate
irreparable injury.
After the ruling of the district court, Associated
Universities asked DOT whether the New York ban was
preempted under the Hazardous Materials Transportation
Act. That Act states that local and state regulation of
hazardous materials transportation is preempted if it is
"inconsistent" with the Act or regulations thereunder.
Preemption may be waived by DOT if, on the application of
an appropriate state agency, the Secretary determines
that state regulation affords an equal or greater level
of protection to the public and does not unreasonably
burden commerce. In response to the request, DOT issued
a ruling in 1978 holding that the ban was not preempted
by the Act, because highway routing of radioactive
materials had not yet been exercised under it. Immedi-
ately thereafter, state and local routing requirements
for the transport of radioactive materials proliferated.
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126
As a direct result, DOT in 1981 published guidelines
to become effective in February 1982 that would have the
effect of preempting certain state and local laws. The
regulation, ~HM-164," addresses only highway shipment of
radioactive materials. It designates the entire inter-
state highway system as the approved transportation route
for "large quantity" packages of radioactive materials.
The rule declares "inconsistent" state and local regula-
tions that require prenotification or escort personnel or
escort requirements, deferring consideration of promulgat-
ing a national prenotification rule pending an outcome of
NRC's rulemaking on this topic. It also declares "incon-
sistent" states' prohibiting the use of an interstate
highway without designating an equivalent alternate
highway, bans on travel during certain times of day, or
constraints on travel in urban vehicular tunnels. It
requires shipments of spent fuel and waste to follow
interstate or equivalent highways and to use beltways
where available around cities. The rule also requires
the carrier to prepare a written route clan for the
driver and shipper.
Tne plan must identify origin and
aest~nat~on points, the route selected, planned stops,
approximate departure and arrival times, and telephone
numbers for emergency assistance in each state along the
selected route. The driver must have received training
concerning other DOT requirements for the materials being
transported.
HM-164 has been criticized by states because of its
attempt to delineate by regulation restrictions on state
~ Moreover, HM-164 assigns
to the states key responsibility for emergency planning
and enforcement of regulations. States would like the
federal government to assume these responsibilities and
implement them by providing technical assistance, guid-
ance, and financial support. On March 25, 1981, the City
of New York filed suit in the federal district court for
New York's Southern District against the DOT for relief
from enforcement of HM-164. The State of New York later
joined with New York City as a co-plaintiff. The com-
plaint alleges, among other things, that the Secretary of
Transportation has no legal authority under the Hazardous
Materials Transportation Act to declare that DOT regula-
tions preempt state or local regulations. On July 9,
1981, a similar suit against DOT was filed by the State
of Ohio. Ohio's challenge is designed to protect (1) the
state's existing prenotification requirement for the
transportation of large quantities of nuclear materials
ana ~oca' police power actions.
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127
through the state and (2) the Ohio constitution's direct
grant of police powers to municipalities. Clearly the
stage is set for a judicial test of the federal govern-
ment's authority to preempt local and state regulation of
radioactive waste and spent-fuel shipments.
The regulatory framework just described possesses
several interesting properties. First, the focus of
regulation is on the licensee's role in supervising the
transportation of radioactive wastes. While carriers and
drivers are subject to some direct regulation by the
~ ~ ~ ~ who bears the heaviest
burden in vouching for safe transport. While HM-164 and
the NRC sabotage regulations do give some attention to
truck and driver safety and conditions on the open road,
the focus of the former is relief from state and local
requirements, while the focus of the latter is espionage
and sabotage not conventional (and more likely) accident
safety for the highway-using public and surrounding com-
munities. The current regulatory framework for radio-
active waste and spent fuel can be analogized to air
traffic control, where air freight customers, not air
traffic controllers, have been mace primarily responsive e
for the safe air transport of hazardous materials. As
"traffic" increases, such a situation will not likely be
allowed to continue.
Second, the regulatory framework places the maximum
emphasis on cask integrity. Certainly, cask integrity is
essential to a successful radioactive waste transportation
scheme. Casks must be able to withstand the tremendous
stresses to which they may be exposed in the complex array
of accidents that, sooner or later, are likely to occur.
A measure of additional protection through special regula-
tory requirements applicable to trucks, drivers, and their
routes seems appropriate to the risks posed by such
accidents.
In sum, the panel majority found that an underdeveloped
regulatory framework currently exists for the transpor-
tation of spent fuel and high-level wastes. The federal
governmental agencies involved defer to each other, with
primary responsibility essentially delegated to NRC's
reactor licensees. The states are fighting preemption,
but mainly in order to secure the right to ban or restrict
waste shipments. A situation in which no level of govern-
ment or private utility has a strong incentive to act
decisively is not conducive to vigorous and broad-based
safety regulation.
agencies, it is the licensee
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128
To prevent future accidents as the frequency of ship-
ment grows and to forestall the adoption of a hastily
conceived and costly federal regulatory regime in the
wake of accidents, reform of the federal regulatory
structure, within the ample statutory authority for
reasonable regulatory requirements that already exists,
may be required. Thus, the panel recommends a careful
evaluation of existing federal regulation of highway
transport to assure that (a) a sufficently broad and
uniform regulatory regime exists for the safe transport
of radioactive wastes, (b) any redundancies and incom-
pleteness in the existing NRC-DOT regulations have been
eliminated, and (c) the needs of states to control safety
on their highways are met. If the federal government
itself transports the wastes, a similar reassessment of
safeguard adequacy must be implemented.
FINDINGS
As a result of its analyses, the panel found that
1. A major institutional gap exists in the framework
defined in the Nuclear Waste Policy Act of 1982. There
is no institutionalized process for relating the concerns
of locally affected populations to the actions of state
governors or legislatures. Institutional designs for
bridging this gap have been utilized in other policy
areas and may provide possible means to fill this void.
2. The site-selection timetable outlined in the
Nuclear Waste Policy Act (NWPA) is likely to force the
Department of Energy to choose between an open, consulta-
tive approach to planning that fails to meet deadlines
and a closed, executive approach that meets schedules. A
decision to adhere to the tight schedule of the NWPA
could contribute to insufficient attention to local
concerns and participatory opportunities or result in
inappropriate compromises.
3. Informal processes of planning and conflict
resolution can provide valuable supplements to the
official administrative and judicial processes outlined
in the Nuclear Waste Policy Act. Environmental mediation
is one such process that deserves further exploration.
4. An ambitious program of public participation is
needed to meet the challenges posed by high levels of
public concern and the complexity of issues surrounding
the siting of nuclear waste repositories. Previous
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129
research and experience suggests that an effective par-
ticipation program will include:
(a) the direct involvement of affected public
groups in impact assessment;
(b) early and broad public involvement in both
site searching and site selection, within the context of
technical criteria;
(c) the development of an independent technical
review capability, similar to that created using DOE
funds by the State of New Mexico for the Waste Isolation
Pilot Plant, among citizens of the communities hosting
the repositories or those exposed to extraordinary waste
transportation flow at major points along the waste
funnel;
(d) a variety of techniques and mechanisms of
public participation, since the state of social science
theory does not indicate a preferred mode of public
participation. The participation program may be designed
as a major research effort, with participation of
citizens, peer review, and careful monitoring and
evaluation.
5. Transportation of radioactive wastes by truck
could be carried out either by a federally owned and
operated fleet or by private trucking companies subject
to federal and state regulation. Whether private com-
panies or the federal government transport the wastes, a
sound federal regulatory system requires
(a) a sufficiently broad-based and uniform
regulatory regime;
(b) the elimination of redundancies and incom-
pleteness in the existing NRC-DOT regulations for
transportation; and
(c) addressing the desire of states to deal with
safety on their own highways.
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Representative terms from entire chapter:
spent fuel
