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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
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.
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).
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.
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
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
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.
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
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,
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 . . . . . . . . ~
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
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
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
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.
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.
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
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
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. REFERENCES FOR CHAPTER 5 Albrecht, S. L. 1983. Community response to large-scale federal projects: the cast of the MX. Pp. 233-250 in Nuclear Waste: Socioeconomic Dimensions of Long-Term Storage, S. H. Murdock, F. L. Leistritz, R. R. Hamm, eds. Boulder, Colo.: Westview Press. Bacow, L. S., and J. R. Milkey. 1983. Responding to local opposition to hazardous waste facilities: the Massachusetts approach. Resolve, Winter/Spring, pp. 1 and 4-8.
130 Bellman, H. S., C. Sampson, and G. W. Cormick. 1982. Using Mediation When Siting Hazardous Waste Management Facilities. Report Prepared for the Office of Solid Waste and Emergency Response. Washington, D.C.: U.S. EPA. Brock, J. 1982. Bargaining Beyond Impasse. Mass.: Auburn House. Cambridge, Checkoway, B. 1981. The politics of public hearings. Journal of Applied Behavioral Science 17(41-566-582 Cobb, R., and C. Elder. 1976. Participation in American Policy. Baltimore, Md.: Johns Hopkins University Press. Glickman, N., ed. 1980. The Urban Impacts of Federal Policies. Baltimore, Md.: The John Hopkins University Press. Hanchey, J. R. 1975. Public Involvement in the Corps of Engineers Planning Process. IWR Research Report 75-R4. Fort Belvoir, Va.: U.S. Army Engineer Institute for Water Resources. Harter, P. J. 1982. Negotiating regulations: a cure for malaise. Georgetown Law Journal 71:1-118. Hirschman, A. O. 1970. Exit, Voice and Loyalty. Cambridge, Mass.: Harvard University Press. Horowitz, D. 1976. The Courts and Social Policy. Washington, D.C.: Brookings Institution. Ingram, H. M., and S. J. Ullery. 1977. Public participation in environmental decision-making: substance or illusion. Pp. 123-139 in Public Participation in Planning, W. R. D. Semell and J. T. Coppock, eds. New York: John Wilev & cone Kates, R. W., and B. Braine. 1983. Locus, equity, ano tne West Valley nuclear wastes. Pp. 94-117 in Equity Issues in Radioactive Waste Management, R. E. Kasperson, ed. Cambridge, Mass.: OGH Publishers. Landau, M. 1969. Redundancy, rationality and the problem of duplication and overlap. Public Administration Review 29:346-358. LaPorte, T. R. 1975. Complexity and uncertainty: challenge to action. Pp. 332-356 in Organized Social Complexity, T. R. LaPorte, ed. Princeton, N.J.: Princeton University Press. Lee, K. N. 1982. Defining success in environmental dispute resolution. Resolve, Spring, pp. 1 and 3-6. and M. P. residential Lubin, R. A., A. A. Schwartz, W. B. Zigman, Janicki. 1982. Community acceptance of programs for developmentally disabled persons. Applied Research in Mental Retardation 3:191-200.
131 Lupo, A., F. Colcord, and P. Fowler. 1971. Rites of Way: The Politics of Transportation in Boston and the U.S. City. Boston: Little, Brown & Company. Marris, P., and M. Rein. 1973. Dilemmas of Social Reform. 2nd ed. Chicago: Aldine. Nader, L., and H. F. Todd, eds. 1978. The Disputing Process In Ten Societies. New York: Columbia University Press. National Research Council. 1983. Transportation of Hazardous Materials: Toward a National Strategy. Transportation Research Board. Washington, D.C.: National Academy of Sciences. Nuclear Waste News. 1982. Summary of nuclear waste policy act of 1982. Nuclear Waste News, Dec. 30, pp. 204-207. Ragan, J. F., Jr. 1975. Public Participation in Water Resources Planning: An Evaluation of the Programs of 15 Corps of Engineers Districts. IWR Contract Report 75-6. Fort Belvoir, Va.: U.S. Army Engineer Institute for Water Resources. Rochlin, G. I. 1981. The Role of Participatory Impact Assessment in Radioactive Waste Management Program Activities. Columbus, Ohio: Office of Nuclear Waste Isolation, Battelle Memorial Institute. Sandia National Laboratories. 1978. Transport of Radionuclides In Urban Environs: A Working Draft Assessment. Albuquerque, N. Mex. Sax, J. L. 1971. Defending the Environment: A Strategy for Citizen Action. New York: Knopf. Seley, J. E. 1983. The Politics of Public Facility Planning. Lexington, Mass.: D.C. Heath and Company. Susskind, L., and A. J. Weinstein. 1980. Toward a theory of environmental mediation. Affairs 9:310-357. Environmental U.S. Department of Transportation. 1976. Effective Citizen Participation in Transportation Planning. Volume 2. Washington, D.C.
