Opinion letter to The Honorable Bob Feigenbaum

WJLLIA!!C L . WE IJS TEB ATTO.IfCY OCWC.AL ATTORNEY GENERAL OF ~ISSOURI JEFPEBSON C ITY 65102 January 19 , 1988 P. o.Box 899 ( 3l4 )7.5J -~21 OPINION LETTER NO. 4-88 The Honorable Bob Feigenbaum Representative, District 77 State Capitol Building, Room 300-A Jefferson City, Missouri 65101 Dear Representative Feigenbaum: This opinion letter is in response to your request for an opinion concerning the relative roles of state government and the federal government with respect to transportation of radioactive materials including nuclear reactor wastes. Your opinion request states your question as follows: The federal government exercise• general preemption over state and local governments in the regulation of transpor- tation of radioactive materi als and waste. The authority to do so is contained in the interstate commerce clause, the Atomic Energy Act of 1954, the Energy Reorgani- zation Act of 1974, and the Hazardous Materials Transportation Act. State and local governments are given primary responsibility for emergency response to radioactive materials transportation accidents. In keeping within this responsi- bility, in what specific areas are the state and local governments allowed to impose requirements and restrictions on the transportation of radioactive materials without being in conflict with federal preemption provisions ? As will be explored a bit further in t his opinion, the answers to some of the areas where the states may or may not be able t o exercise authority result from Department of Transporta- tion (DOT) Inconsistency Rulings (IR), federal constitution and The Honorable Bob Feigenbaum statutes, regulations and case law. Much of the op1n1on is based necessarily on the i nconsistency rulings, which are given considerable weight by the courts, but are only advisory in nature, and thus would not have t he weight of case law unless incorporated into court opinions. Certain federal statutes involved in this opinion include the Atomic Energy Act of 1954, 42 u.s .c. S 2011, et s~. (AEA); the Hazardous Materials Transportation Act, 49 .S.C.§ 1801, et seg. (HMTA); the Energy Reorganization Act of 1974 which established the Nuclear Regulatory Commission, 42 u.s.c. § 5841, et seg.: a nd the Federal Railroad Safety Act, 45 u.s.c. S 431, et seg. Based in part on these statute~, there are three primary doctrines which e stablish the invalidity of certain s tate efforts to control the tra~aportation of nuclear wastes and materials. These include preemption by federal law, i nterference with i nterstate commerce a nd federal immunity in certain areas. Concerning preemption, it has been determined that under the ABA the federal government has occupied the entire field of nuclear safety so that most state efforts toward nuclear safety are preempted. The Supreme Court sets forth the preemption doctrine as follows: As we recently observed in Pacific Gas ' Electric Co. v. State Energy Resources Conservation ' Oevelopment co111111'n, 461 u-.s. 190, 103 s.ct. 1713, 75 L.Ed.2d 752 (1993), state law can be preempted in either of two general ways. If Congress evidences an intent to occupy a given field, any state law falling within that field is pre-empted. Id., at 203-204, 103 s.ct., at 172l=T722r Fidelity Federal Savinqa ' Loan Aaan. v. De ia CUesta, 458 u.s. 141, 153, 102 s.ct. 3014, 3022, 73 L.Ed.2d 664 (1982) 1 Rice v. Santa Fe Elevator Corp., 331 u.s. 218, 230, 67 s.ct. 1146, 11s2, 91 L.Ed. 1447 (1947). If Congress has not entirely displaced state regulation over the matter in question, state law is still pre-empted to the extent it actually conflicts with federal law, that is, when it is impossible to comply with both state and federal law, Florida Lime & Avocado Growers~ Inc. v. Paul, 373 u.s. 132, 142-ii3, 3 s.ct. - 2 - The Honorable Bob Feigenbaum 1210, 1217-1218, 10 L.Ed. 2d 248 (1963), or where the s tate law stands as an obstacle to the accomplishment of the full purposes and ob jectives of Congress, Kines v. Oavidowitz, 312 U.S. 52 , 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941). Pacific Gas & Electric, supra, at 203-204, 103 S . Ct. at 1721-1722. Kerr-McGee contends that the award i n this case i s invalid under either analvsis. We consider e ach o f these contentions-in t urn. In Pacific Gas & Electric, an exami- nation of the statutory scheme and legisla- tive history of the Atomic Enerqy Act convinced us that "Congress ••• intended that the Federal Government should regulate the radioloqical safety aspects involved i n the construction and operation of a nuclear plant.• 461 u.s., at 205, 103 s.ct., at 1723. Thus, we concluded that •the Federal Government has occupied the entire field of nuclear safety concerns, except the limited powers expressly ceded to the States.• ~-·at 212, 103 s.ct. at 1726. Silkwood v. Kerr-McGee Corporation, 464 o.s. 238, 248-249, 104 s.ct. 61s, 621-622, 78 L.Ed.2d 443, 452-453 (1984). Thus, where state requirements in the area of nuclearp~ant regulation are motivated by safety concerns, the Supreme Court has stated that the first method of preemption applies, a com- pletely occupied field with which any state law is preempted. It seems likely this would also apply in the area of transporta- tion. However, despite this complete occupancy of the field of nuclear safety, state controls which concentrate on other areas may succeed. The state of California successfully requlated development of nuclear power plants for economic reasons which were determined by the court in Pacific Gas ' Electric Co. to be separate and apart from nuclear concerns, therefore a valid basis for state regulation. Such other regulation ia very narrow, however, in view of the federa1 occupancy of the entire field o f nuclear safety based on the AEA. It would seem difficult to apply this approach to deal with safety in the area of radioactive materials transportation. Attachment A taken from a report prepared for the Department of Energy, sets forth an analysis of the status of - 3 - f) The Honorable Bob Feigenbaum preemption under the Atomic Energy Act. While the analysis indicates that preemption of state transportation by AEA has not yet been decided in any cases, holdings in other areas of radioactive materials safety issues do indicate transportation safety controls by states would be preempted. In the second category of preemption in Silkwood, the Uazardous Materials Transportation Act preempts any state regulations that are inconsistent in that they conflict with that act or regulations pursuant to the act. State laws inconsistent with federal laws in the field of nuclear materials and thus preempted, are preempted because of the Supremacy Clause in the United States Constitution. The Supremacy Clause generally provides that federal law is the supreme law o£ the land, and the preemption doctrine is a result of the application of this clause. Jersey Central Power & Light Companv v. Township of Lacev, 772 F.2d 1103, 1110 (3rd cir. 1985). The Commerce Clause of the United States Constitution is another basis for precluding state action, in that it prohibits any undue burden on commerce which might be imposed by state regulation on shipment of radioactive wastes or materials. For the Commerce Clause to preclude state regulation of transportation of radioactive materials and wastes, it must be determined that the federal law at issue is valid and that the state law interferes with the federal scheme either expressly, by implication or by actual or potential conflict between the federal and state provisions. The implied interference may be found by the pervasiveness of the federal regulatory scheme, the dominance of the federal interest, including an interest in uniformity across the nation, or thirdly interference with federal purposes. The Commerce Clause is thus not an absolute prohibition, but requires a balancing of the burden imposed on interstate commerce with the benefits the law would afford the state to determine whether there is such a burden on interstate commerce unjustified by benefits to a state that it would invalidate the state law. The Hazardous Materials Transportation Act is a major source of preemption of state regulations concerning hazardous, including radioactive materials. The express preemption contained in the Hazardous Materials Transportation Act (HMTA) provides that a state requirement that is inconsistent with the HMTA or regulations thereunder is preempted unless the Secretary - 4 - " !/ The Honorable Bob Feigenbaum of Transportation grants a waiver of preemption. 49 u.s.c. § 1811. The federal regulation to determine if there is preemption due to the Hazardous Materials Transportation Act requires the Department of Transportation to consider whether compliance with both state and federal law is possible, and the extent to which the state requirement is an obstacle to accomplishing the purposes of the HMTA and regulations thereunder, the HMRs. As stated in a Department of Transportation (DOT) Inconsis- tency Ruling, IR-2, the manifest purpose of the Hazardous Materials Transportation Act and the hazardous materials regula- tions is safety in transportation. The Department of Transpor- tation has determined that any delay in transportation is incongruous with safety, and therefore any state requirements which cause delay are deemed inconsistent. The Department of Transportation requirements for radioactive materials apply to source, by-product and special nuclear materials. These are categories of radioactive substances and do include spent fuel from nuclear power plants. Under the Hazardous Materials Transportation Act, radioactive materials are treated as a subset of hazardous materials in 49 C.F.R. and thus subject to hazardous materials rules generally, as well as those pertaining to radioactive materials. In some areas any state requirements are likely to be determined an obstacle to operation of HMTA, because the Department of Transportation has also determined that these areas need national uniformity. They include hazardous material packaging standards, hazardous material warning systems and hazardous material class definitions. IR-6, 47 Fed. Reg. at 51,994. Because of the overwhelming number of rulings finding that state requirements are inconsistent, and thus preempted, the Department of Transportation's regulation, HM-164, Appendix A to 177, 49 C.F.R. has proved to be generally offensive to most states and has been challenged by several states, but so far unsuccessfully. One analysis has determined that in light of IRs 8, 10, 11, 12, 13 and 15, based largely on the Hazardous Materials Transportation Act and the hazardous materials regulations thereunder, it must be concluded that the federal government almost completely occupies the field of radioactive material transportation safety, and therefore state requirements dealing with this field are generally limited to only: - 5 - The Honorable Bob Feigenbaum 1. General traffic control for all traffic. 2. Designation of alternate preferred routes if the requirements of 49 C.F.R. 177.825 (Attachment B) are met. (Copy of DOT advisory to states on how to exercise authority over carriers of hazardous materials consistently with federal requirements attached as Attachment C.) 3. Adoption of federal requirements, or requirements that are consistent with federal requirements. 4. En£orcement of requirements that are consistent with federal requirements. The major part of the answer to your question must be based on the inconsistency rulings mentioned above, in which the Department of Transportation has considered particular state requirements, and determined whether they are inconsistent with federal requirements, and therefore preempted. As mentioned above, these DOT Rulings, are only advisory in nature, but are given considerable weight by the courts. There is a procedure for a state to request waiver of preemption after its require- ment has been d~emed inconsistent in one of the inconsistency rulings. However, so far there has been little success by the states with these waivers. The Department of Transportation's position is explained by its policy that non-preemption is meant to be an extraordinary remedy in the field of nuclear waste and materials transportation. Attachment D lists the Inconsistency Rulings through June 1986. Attachment E lists the subject matter of Inconsistency Rulings. A state applying for a waiver of preemption must (1) make a threshold showing of exceptional circumstances necessitating immediate action for a state to secure more stringent regula- tion: (2) show that the preempted state requirement affords an equal or greater level of protection to the public as compared with federal requirements; and (3) show that the preempted state requirement does not unreasonably burden commerce. Some confusion in what state actions are preempted results from the fact that there is regulation by more than one federal agency. Generally, the Nuclear Regulatory Commission regulates the possession, transfer, construction and operation of production and utilization facilities for source, by-product and special nuclear material, including nuclear power plants. However, because of a Department of Transportation regulation declaring the above three materials as hazardous materials, they are also subject to Department of Transportation requirements generally pertaining to (1) physical security during - 6 - The Honorable Aob Feigenbaum transportation and, ( 2) control l i ng preparation and packaging of radioactive materials for transportation. Because of this overlap, t he NRC and the Department of Transportation have executed a memorandum of understanding (44 Fed. Reg. 38,690) which gives DOT responsibility for s etting the design specifi- cations a nd perfo~ance requirements for those materials for which NRC d oes not set standards. Under this, DOT sets packaging standards f or LSA materi als and for quantities of non-fissle materials not exceedi ng type A limits. Pursuant to the memor andum of understanding, DOT also develops s tandards for (l) t he classification of radioactive materi als: (2) the external radiation fields, label ing a nd marking of packages and vehicles; (3) carrier equipment; (4) carrier personnel qualifi- cations, (5) loading, handling and storage procedures, (6) non safeguards - related special transport controlsJ and (7) all other safety s tandards not devel oped by the NRC. State acti vities and regul ations inconsistent with any of DOT's actions would almost certainly be determined to be inconsistent by DOT should they go to inconsistency rulings, and therefore should be considered preempted. It should also be borne in mind that even if a state requirement satisfies the DOT consistency criteria, it must still be measured against the complete federal occupancy of the field of radioactive safety under the AEA referred to in Silkwood, supra, which is an independent basis for preempt1on. With this aa background, the following paragraphs dea1 with particular activities and whether they are preempted or otherwise precluded from state regulation. Requirements concerning approval of shipments are inconsis- tent if they differ in any way from the federal requirements but are okay if identical to those requirements. Inconsistency Rulings (IRa) 8, 11, 12, 13, 14 and 15. State requirements concerning the design for radioactive waste and materials casks are preempted if in any way inconsis- tent with the federal requi~ements. IR-8. State regulations concerning confidentiality of information relating to radioactive waste and materials transportation are preempted if they differ from federal requirements. IRs 8 and 15. Any state regulations concerning the construction and operation of nuclear plants are preempted by federal laws. Atomic Energy Act of 1954, 42 u.s.c. S 2131. However, as noted above the state of California was successful in its regulation - 7 - The Honorable Bob Feigenbaum of the construction of a nuclear power ~lant based on economic factors rather than nuclear safety factors. State courts are not barred from awarding compensatory damage judgments in the case of nuclear accidents, even though it may be argued that this amounts to regulation resulting from state laws. Silkwood v. Kerr-McGee Corporation, supra. Definitions concerning radioactive materials are incon- sistent if they differ from federal definitions, and therefore would probably be considered preempted. IRs 8, 12, 15 and 16. n State and local governments have been handed the major burden for preparation of emergency response plans and emergency response. However, state requirements that an emergency response plans be considered a condition of route approval has been found to be inconsistent because the DOT~s Materials Transportation Bureau found this would constitute an obstacle to accomplishing the intent of the Hazardous Materials Transporta- tion Act. The Department of Transportation has a program to help states with enforcement of federal regu1ations, under its "State Hazardous Materials Enforcement Development" program. State fines or civil penalties are inconsistent and therefore preempted if they are based on vio1ations of state rules which are different from federal rules. IR-3. There is a qualification on penalties and fines, however. Even if they are for violations of consistent state rules, they would be determined inconsistent if they are so extreme or arbitrary as to cause rerouting or delay of shipments, though mere differences in amounts do not generally determine inconsistency. IR-3. State requirements for front and rear mobile escorts if identical to those required by the NRC for radioactive materials are consistent. IR-14. Clearly, any requirements for escorts in addition to those required under federal law are inconsistent. IRs 11 and 13; 49 C.F.R. 177. Any state fees which may cause a delay in shipment are generally preempted. IR-17. Fees which are unreasonably high or to fund inconsistent state activities such as inconsistent monitoring activity requirements are inconsistent and preempted. IRs 11, 13 and 15. Reasonable fees to fund consistent activities are consistent and not preempted. Therefore it has been found that a $1,000.00 per cask fee for spent fuel transportation imposed by the state of Illinois for emergency response purposes, not related to inconsistent - 8 - The Honorable Bob Feigenbaum purposes and which do not cause delay, is consistent and not preempted. IR-17. Local prohibitions on the import of nuclear wastes and materia~s are preempted as inconsistent. Jersev Central Power & Light Company v. Township of Lacey, supra. Inspection, monitoring and surveillance requirements which are related to nuclear safety concerns are preempted if they are inconsistent with federal requirements. State inspection requirements are permitted so long as they are consistent with federal requirements. IRs 2, 8, and 15. The state of Illinois rail shipment inspection program adopted unchanged the applicable provisions of the federal inspection requirements from 49 C.F.R. State requirements which differ from federal insurance or liability requirements or require additiona1 insurance coverage beyond that required by federal requirements are inconsistent and preempted. IR-11. State requirements for marking, placarding or labeling trucks are inconsistent if different or in addition to federal requirements, and are therefore preempted. Kappelmann v. Delta Air Lines, Inc, 539 F.2d 165 (D.C. Cir. 1976) cert. denied, 429 U.S. 1061, 97 S.Ct. 784 (1977)7 National Tank Truck Carriers, Inc. v. City of New York, 677 F.2d 270, 274 (2nd cir. 1982). State requirements for packaging standards for design and construction are inconsistent and thus preempted if they differ· from or add to federal requirements. IR-2. And, state requirements for radioactive materials container testing and certification are inconsistent. IRs 8 and 15. State requirements for permits and licenses are preempted depending upon what they require, particularly if they are the cause of delay in shipment. IRs 2 and 3. State requirements for submission of information in. applications identical to ~TRC' s are consistent, but requirements by a state for submission of NRC approvals and licenses to the state is inconsistent. IR-15. While there is some possibility that mere requirements in permit applications for information already required on Department of Transportation shipping papers may not be preempted, it is considered that requirements for permits for each shipment prior to the shipment or a requirement for carrying the permits on the vehicle or an additional piece of paper that supplies the same information as required by the Department of Transportation shipping papers, probably would - 9 - The Honorable Bob Feigenbaum cause delay and therefore would be inconsistent. IR-2. There is also some possibility that general permits and licenses may be okay or that if the permit system is consistent with federal requirements, that a state requirement to carry and display a decal is consistent. IR-3. However, there also is authority stating that the requirement to display a permit decal has been held to be inconsistent. For a detailed discussion of the permit issue, see National Tank Truck Carriers, Inc. v. Burke, 535 F.Supp. 509 at 517 (D.R.I. 1982), aff'd 698 F.2d 559 (lst Cir. 1983). Generally, DOT considers that requirements for additional personnel or equipment for nuclear materials or waste transporta- tion are inconsistent and thus preempted. See Attachment c, the DOT Guidelines for state authority ov·er motor carriers. State requirements for illuminated rear bumper signs have been found inconsistent. IR-1. It does appear, however, that a requirement that headlights be kept on is consistent and therefore not preempted. National Tank Truck Carriers, Inc. v. Burke, supra. IRs 2 and 3. State requirements for special placards on trucks or other hazard warning requirements are inconsistent if they differ from or are in addition to federal requirements. IRs 2 and 3. Generally, state requirements for prenotification of shi~ments have been found to be inconsistent, in particular if they have the potential to delay traffic. IR-6. Where they differ from federal requirements by requiring different people to be notified or more information or documentation, they are inconsistent. IRs 8, 10 and 15. State prenotification requirement the same as the federal requirement is consistent. IR-15. Notice requirements for radioactive materials shipment schedule changes which are identical to NRC regulations are considered consistent. IR-8. There is a general prohibition on state records and manifest requirements if they differ at all or require anything in addition to federal requirements for entries on the forms. See Attachment c. Specifically, requirements for information or documentation in excess of federal requirements are believed to create additional burden or delay and are therefore inconsis- tent. Radioactive materials transportation route plans or other documents with shipment-specific information required by the state have been found inconsistent. State requirements for submission of NRC approvals and licenses to the state have been found inconsistent by DOT. IR-15. - 10 - The Honorable Bob Feigenbaum State requirements for shipping papers or additional or different shipping paper entries for radioactive materials than required by federal law have been considered inconsistent by DOT. See Attachment c. A state requirement for red bordered shipping papers for intrastate shipments of hazardous materials has been considered inconsistent. IR-4. A state requirement for certification to the state of the shipment's compliance with federal laws are considered inconsistent. IRs 8 and 15. While radioactive materials information requirements identical to the Nuclear Regulatory Commission are consistent, requirements to submit NRC approvals and licenses to the state are inconsistent. IR-15. State requirements for registration are preempted by the Atomic Energy Act if related to nuclear safety and if they cause delay in shipment are probably preempted by the HMTA. Some state requirements in area of accident and emergency response or reports are probably not preempted by AEA or HMTA. However, a state requirement for a written accident report has been considered redundant and thus inconsistent by DOT. IRs 2 and 3. Radioactive materials transportation accident/incident state reporting requirements for other than emergency assistance are inconsistent. Some limited accident reports are permitted under 49 C.F.R. 177 if necessary for emergency assistance. National Tank Truck Carriers, Inc. v. Burke, supra. Apparently general post-acc1dent traff1c accident reports are alright and immediate 2!!! accident reports for emergency response are not inconsistent. IRs 2 and 3. Concerning state routing requirements, the Department of Transportation has an advisory to states concerning how they can exercise authority over motor carriers. A copy is attached as Attacnment c. In general, however, state routing restrictions are preempted by HMTA under HM-164, unless they are part of a state-designated alternate route selected with appropriate safety analysis. Closely connected with routing restrictions are complete denial of highway use. A state cannot deny all highway use for shipments of radioactive materials and wastes. IR-3. State requirements for storage, loading and handling procedures are in all probability preempted by the Atomic Energy Act if they are an attempt to regulate safety. Silkwood v. Kerr-McGee Corporation, supra. Some time of day restrictions have been found to be consistent, others inconsistent. Statewide prohibition on all - 11 - The Honorable Bob Feigenbaum hazardous materials transport on weekdays between 7 and 9 a.m. and 4 and 6 p.m. resulted in delay and so was found inconsistent. IR-2. See also National Tank Truck Carriers, Inc. v. Burke, supra. But see National Tank Truck Carriers, Inc. v. City of New York, suDra. Restriction of radioactive materials shipments from May through October and prohibition of holiday or inclement weather shipments were found inconsistent. IR-14. However, limited local traffic controls are generally consistent to the extent they deal with particular local safety hazards which are not adequately dealt with by nationwide regulations. IR-2. This includes local authority to restrict or suspend operations when road, weather, traffic or other hazardous conditions or circumstances dictate. So called "rules of the road" restrictions that apply to all vehicles may apply to hazardous materials vehicles without being inconsistent. IR-3. Separation distances between vehicles is an example. Requiring carriers to use major city thoroughfares so long as federal rules apply elsewhere is consistent. IR-3. State requirements for railroad cars containing hazardous materials, prohibiting various actions have been found inconsistent and preempted by the Hazardous Materials Transportation Act. These actions include a prohibition on cutting off cars while in motion, permitting hazardous material containing cars from being struck by other cars moving under their own momentum, or coupling cars with unnecessary force. Atchison, Topeka and Sante Fe Railway Company v. Illinois Commerce Commission, 453 F.Supp. 920 (N.D. Ill. 1977). A review of federal government regulations in the field as of November, 1985 is contained in Attachment F from the Guide to Emergency Response to Radioactive Materials Analysis publishec by the National Conference of Legislatures, paqes 4 and 5. The above discussion pertains primarily to highway shipments of radioactive materials and, where applicable, would also apply to railroad shipments. Where railroad shipments are involved, another federal statute which must be considered is the Federal Railroad Safety Act, 45 u.s.c. S 421 et seg. In particular S 434 provides: The Congress declares that laws, rules, regulations, orders, and standards relating to railroad safety shall be nationally uniform to the extent practi- cable. A State may adopt or continue in force any law, rule, regulation, order, or - 12 - The Honorable Bob Feigenbaum standard relat~ng to railroad safety until such time as the Secretary has adopted a rule, regulation, order, or standard covering the subject matter of such State requirement. A State may adopt or continue in force an additional or more stringent law, rule, regulation, order, or standard relating to rail~oad safety when necessary to eliminate or reduce an essentially local safety hazard, and when not incompatible with any Federal law, rule, regulation, order, or standard, and when not creating an undue burden on interstate commerce. Under this act, which must be considered in conjunction with the other federal statutes, a state's attempt to regulate rail shipments of radioactive materials must be considered in light of what federal regulations have been adopted that would trigger the preemption provided for in § 434. National Associa- tion of Re later Utilit Commissioners v. Coleman, 542 F.2d l r c r. 6 • I requ at1ons on t e e era level have been adopted, then the state safety measures may still be exempted under the second exemption in ~ 434, if the state regulation meets S 434 requirements that it is necessary to eliminate or reduce a local safety hazard and further is not incompatible with any federal measures and does not unduly burden interstate commerce. oonelon v. New Orleans Terminal Company, 474 F.2d 1108 (5th cir. 1973). Federal transportation regulations have been adopted and are found interspersed throughout 49 c.F.R. parts 100 to 199. State measures consistent with these 49 C.F.R. require~ents are apparently not preempted by the federal railroad safety law. Because of the breadth of material covered in this opinion and the length and complexity of 49 C.F.R., any specific Missouri requirements you might wish to consider should be individually evaluated. Very truly yours, Enclosures - 13 - ·. <. ... l. \,. ·rr . - SAN DS~ -71 ~~ TTC052~ UC7 1 ATTACHMENT A Federal Preemption of State and Local Nuclear Transportation Regulations Thomas D. Overcast, J.D •• Ph.D. Barbara Schuknecht, J.D. Battelle Human Affairs Research ~enters Science and Government Stu~y Center 4000 ~.E. 41st Street Seattle. Washington 9&105 January 1 98~ Prepued for Sindia .,.tional Liboratories TRAHSPORTATION TECHNOLOGY CENTER for the U.S. Department of Energy ' to establish m.ny of the packaging standards tor ~hich the NRC is responsible--enrtcheo uranium hexafluoride, enriched uranium oxide. fuel pellets or rods, and spent fuel--because as typically shipped they constitute " $1ij.~ in quantities sufficient to fonn a critical mass". When NRC does relinqui sh authority pursuant to an agreement with a state, during the period of the agreement the state has •authority to regulate the materials covered by the agreement for the protection of the public health and safety from radiation hazards.M81 The NRC may not. however, discontinue regulatory authority over construction and operation of production and utilization facilities; export or import of nuclear materials or facilities; ocean disposal of nuclear wastes; or the disposal of other source, byproduct, or special nuclear materials that NRC detennines should require a license. 82 NRC must also retain authority under these agreements to determine that all applicable standards and requirements are met prior to termination of a byproduct materials 1icense.b3 Moreover. notwithstanding an existing agreement between NRC ana a state, kR~ is authorized to require that the manufacturer. processor, or producer of any product containing source, byproduct or s~ not transfer possession or control of such product except pursuant to a license issued by the NRC.54 The NRC's retention of authority in these areas does not. however, affect the authority of states or localities •to regulate activities for purposes other than protection against radiation hazards, • whether or not they are agreement states. 85 Preemption uncser the Atomic Energy Act To date, no reported judicial opinion has analyzed the issue of the extent to which the Atomic £nergy Act (AEA) preempts state and local regulation of nuclear transportation.86 Ho~ever, one Court of Appeals (Illinois v. General Electric Company) has corrlilented on the issue and two recent Supreme Court cases (Pacific Gas and Electric Company v. State Energy Resources Conservation Comhsion (f'G&E h Silkwood v. Ke·rr-~1cGee) have dealt exhaustively with the preemptive effect of the AEA on state and local regulation of various aspects of nuclear power reactors. These analyses merit scrutiny for their implications for preemption of transportation regulation. 18 \ In PacHic Gas and Electric Comoany v. State Energy Resources Conservation and Development Cormission (PG&E>. 07 the United States Suprem~ Court considered whether a California statute conditioning construction of nuclear plants on existence of a federally approved means of disposing of high level nuclear waste was preempted by the Af.A. After reviewing the history of the AEA, the Court held that the California statute was not preempted. The Court noted that the NRC's wprime area of concern in the licensing context .•• is national security, public health ana safety."88 Because California enacted the statute for economic reasons rather than due to safety concerns, the statute 1 ay "outside the occupied field of nuclear safety regulation ... B~ In reaching its holding, the Supreme Court made two observations important for future AEA preemption analysis. First, it determined that the Federal Government has occupied "the entire field of nuclear safety concerns except for the powers expressly ceded to the.states."~ 0 It then reiterated that the test for preemption in an entirely occupied field is whether "the matter is in any way regulated by the federal government. "91 Thus, any state regulation detenni ned to be an attempt to regulate the safety aspects of nuclear energy will be preemptea. Second, the Court rejected the argument that the reorganization of the AEC in 1974 translated into an abandonment of the objective of promoting nuclear power. Instead, it concluded that 11[t)here is little doubt that a primary purpose of the Atomic Energy Act was, and continues to be, the promotion of nuclear po~er." 92 Arguably then, state and local regulations that conflict with the promotional purposes of the AEA will be preempted under the potential conflict test discussed previously. It appears, however, that the Supreme Court, under Chief Justice Warren Burger, will be reluctant to find potential conflict with the AEA's promotional provisions. Although the Court could have accepted PG&E's argument that the California statute, which in effect accomplished a moratorium on future nuclear power plant development, frustrated the purposes of the AEA, it declined to do so. Instead, it noted that "the promotion of nuclear power is not to be accomplished "at all costsw9l and concluded that 11Congress has left sufficient authority for the states 19 to allo~ the dev~lopment economic reasons."94 of nuclear power to be slowed or even stopped for ~ The Supreme Court also refused to find conflict ~ith th~ promotional purposes of the AEA in Silkwood vs. Kerr-McGee Corporation. 9~ At ;ssue 1 in Silkwood ~as whether a state authorized award of punitive damages arising from leakage at a federally licensed plutonium processing plant was preempted by the AEA. Kerr-McGee first argued that the award was preempted because its effect was tantamount to a regulation relating to radiation hazards. Although the Court recognized the potential regulatory consequences of the award, it reasoned that Mit is difficult to believe Congress would, without comment, remove all means of judicial recourse for those injured by illegal conduct.u9b Kerr-McGee also raised the argument that permitting awards of punitive damages for radiation injury conflicted with the promotional purposes of the AEA. Again, the Supreme Court refused to find preemption on this basis. Repeating its admonition in PG&E that the promotion of nuclear energy development is not to be accomplished at all costs, the Court supported its decision by noting that the promotional provision of the AEA,S7 requires that atomic energy be developed and utilized only to the extent it is consistent "with the health and safety of the public.N98 The Supreme Court reasoned that this provision disclaimed any congressional intent to promote atomic energy at the exp~nse of those injured by the process. 99 Absent Congressional intent to preempt state common la~ remedies for radiation injuries, and absent an irreconcilable conflict ~ith the federal regulate~ scheme, the Silkwood court upheld the award of damages. While neither~ nor Silkwood dealt specifically with nuclear waste transportation regulations. that issue was before a Federal Court of Appeals in Illinois v. General Electric Company. 100 That case involved a challenge to the constitutionality of the Illinois Spent Fuel Act, which prohibited disposal or storage in Illinois of spent nuclear fuel used in a power generating facility located outside the state. The court found that Illinois• attempted regulation was an unconstitutional burden on interstate commerce. More important for our purposes was the court's 20 I If alternative holding, made to assist t~t SupremE Court should it gran~ review of the case . Although the a l tern~tive holding hi$ no pre,edentul effect, the court di d not~. without analysis, that the NAEA . _ . preempts stat~ regul ation of tbe s~orage and shipment for storage, interstate ana 1 ul intrastate alike, of spent nuclear fuel . u / Taken together.~ and Silkwooo (and to a limited extent. Illi nois v. G!neral Electric Company) provide a framework for the analysis of implied AEA preemption issues, including the state and local regulation of nuclear waste transport. The primary question the court wi11 address i s whether the state or 1 oca 1 requirement is an attempt to regulate nuclear safety. As 1n any characterization question, the outcome of such an inquiry depends in part upon how deeply the court will inquire into legislative motfve. z·n PG&E. the Supreme Court indicated that it would be reluctant to look beyond the stated purposes of the Cali fornia l a~ ana would accept the interpretation made by the Court of Appeals .102 However. this same uhands offu approach miY not be adopted by the lower courts. For example, in one recent case (County of Suffolk v. Long lsl ana Lighting Company} the Court of Appuls for the Second Circuit deciaed ·that certain claims arising from alleged negligence, breach of contract. misrepresentation and concealment in the design and construction of a nuclear power plAnt were motivAted by SAfety concerns and were therefore preempted by the A£A.103 On the other hand, the Court of Appeals for the Seventh Circuit has apparently taken a different appro1ch (in City of West Chicago v. Kerr-McGee ). holding that a public nuisance co~plaint against Kerr-McGee Chemical Corporation by the City of West Chicago was not preempted by the AEA. Instead, 1t decided that the allegations pertaining to dangerous conditions (such as open pits filled with chemicals And refuse. holes in floors, and ~allen roofing) were attempts by thE city to regulate non-radiation hazards and therefore were permissible. This finding was made even though the operation of the factory in producing compounds from radioactive ores meant that the alleged dangerous conditions necessarily create a radiation hazards.1 04 While these two cases fail to provide any clear answer tc the question of what level of inquiry courts will make into a legislature ' s 21 (or plaintiff's) motives, they do illustrate one important element in judicial decision making--the ~ording of the complaint. The City of West Chicago carefully avoiaed mention of radiologic hazards in its complaint, whereas Suffolk County's complaint referred to potentially dangerous radiologic effects arising from Long Island Lighting's alleged actions. A brief description of other recent AEA preemption holdings may be useful in determining whether state and local transportation requirements for nuclear waste will be preempted. Generally, courts will hold that local regulations ar~ preempted if they fall within the totally occupied field of nuclear safety concerns, or if they fall within an area expressly reserved to the NRC in AEA §2021. A number of cases have held that state or local requirements are preempted under the safety rationale. In Northern States Power Co. v. Minnesota,luS the court preempted state conditions imposed in a waste disposal penmit regulating the level of radioactive discharges and requiring monitoring programs for the detection of such releases. Public Interest Research Group of ~ew Jersey v. State Uepartment of Environmental Protection, 106 involved a hnaing by the New Jersey court that the State Commissioner had no power under a state act to make an independent judgment as to the ability of a planned nuclear energy facility to protect against radiation hazards. In United Nuclear Corporation v. Cannon,107 the .AEA was found to preempt a state requirement requiring a nuclear power company to post a 20-year bond to cover any costs expended by the state to decontaminate areas surrounding its nuclear processing facilities. On the othe; hand, in South Dakota Public Utilities Commission v. FERt, 100 the Wisconsin Public Service Commission's decision to deny a construction permit for a nuclear power plant was held not to be barred by the AEA. The court reasoned that the Commission's denial turned not on safety factors, but was prompted by the lack of demonstrated need for the nuclear plant, significant economic disincentives, and the superiority of alternative means of generation. The second rationale commonly used for preemption--that the regulation falls within an area reserved to the NRC--received support in PG&E. 109 There, the Supreme Court clearly stated that it would be 22 ~~ impermi ssib1e for a state to attempt to regulate the construct; or. or operation of a nuclear power plant, even for nonsafety concerns. 110 Several other cases are in accord with PG&E in th; s regard. In United States of America and Trustees cf Columbia University v. City of ~w ~. 111 the Court of Appeals held that a city licensing requirement for a nuclear reactor was preempted when the license pertained to health and safety. And in Suffolk County v. Long Island Lighting Company, 112 the county's attempt to obtain a court order for an inspection of a nuclear power plant under construction was held preempted because the inspection of nuclear plants is within the reserved area of construction and operation of nuclear facilities. Trosten and Anacarrow113 argue that the legislative history of §2021 of the AEA indicates that transport of nuclear waste was reserved to the NRC as part of its exclusive power over the "construction and operation of production and utilization facilities."114 This theory has not yet been tested in court however, and therefore has no predictive value. In summary, state and local regulation of nuclear waste transport will be preempted under the AEA if it is characterized by the court as being an attempt at nuclear safety regulation. Such regulation may also be preempted if it conflicts with the promotion of atomic energy, although the Supreme Court appears reluctant to find state law preempted on this basi5. Moreover, the AEA probably preempts state and local regulations pertaining to physical security of materials over which NRC has regulatory authority. prenoti fi_cati on to states regarding shipments of certain types of nuclear waste and spent nuclear fuel, and packaging of materials for which NRC sets packaging standards. Finally, state and local regulations will be preempted if they are found to be regulations made within the exp1icit1y reserved powers identified in §2021 of the AEA. Preemption Under the Hazardous Materials Transportation Act The Hazaraous Materials Transportation Act (HMTA} authorizes the Secretary of Transportation to issue Mregulations for the safe transportation in commerce of hazardous materials". 115 These regulations (hereinafter referred to as~} are applicable to any person ,, l"'i § 177.~2~ The vehicle owner shall reta.ln the cer· tlfleate for at least 1 year after with· drawal of the cerllfl~tlon. 14~ U..S.C. 1803, 1804, 1808; C8 CPR 1.53, App. A to ParL 1 ) (29 PR 1819~, Dec. 211, l~6t. Rtdesl.naled at 32 rn 5606, Apr. 5, 1961) EPJTOIIIAL Non:: For Federal R~>el~ter ella· Uons atfl!ctlng 1177.824, sec the Llsl of CFR Secllons Affected appear'lne In the Flndlne Aids section of this volume. II 171.825 ltoutin1 and lralnin1 reljuire· menta ror radioactive matcr.iuls. (&)The carrier shall ensure-thkt any motor vehicle which contains a radio· active material for whl~h placarding Is required Is operate(~ on routes that rnlnlmlze radloloel!:al risk. The .carrier shall consider available Information on accident rates. transit .time, population density and actlvitles, time of day and day of week durlne which transporta· tlon will occur. In perform~ce or this requirement the carrier shall tell the driver that the motor vehicle contains radioactive materials and shall lndl· cate the eeneral route to be taken. This requirement does not apply when: <1) There ls only one practicable hl&hway route available. considering operattns necessity and safety, or <2> The motor vehicle Is operated on a preferred hlehway under conditions described In paraeraph (b) or this sec· lion. (bl Unless otherwise permitted by this section. a carrier and any person who operates a motor vehicle contain· Ina a packaae of highway route con- trolled quanUty radioactive materials as defined In ll'l3.403Cl> of this sub· chapter shall ensure that t.he vehicle operates over preferred routes selected to reduce time in transl~. e~ccpt that. an Interst.!lte System bypass or belt· way ·around a city shall be used when available. (I) A preferred route consists of: m An Interstate System highway for which an alternative route Is not duiiPlated by a State routlna agency as provided In this section, and <IU A State·d'eslenated route selected by a State rouUnr aieney <.see .11'11.8 of this subchapter> In accordance with the DOT "Guidelines for Selecting Preferred Highway Routes for Hl&h· 49 aa Ch. 1 oo-1-16 1_,,.._> way Route Controlled Quantl~y ~~IP· ments or Radioactive Mllteflals''. <2) Whea, a deviation from .a pre· lerred route Is necessary Uncludlnr emcreency deviation.. to . the e~tent time p~rrnlt.s>. routes shall .be select~d In accordance with paragrapq Cal pi this secUon. A motor vehiCle may dcyf. ate from a preferred route under anr of the following circumstances: CU Emergency conditions that would make continued use of the preferred route unsale. <II) To make necessary rest, fuel and vehicle repair stops. <Ill> To the extent necessary to pick up, deliver or transfer a hlahway routr controlt~ quantity packace of radio· active mitera.ls. <c> A carrier <or hla aeent> who oper· ates a motor yehlc.le whl.ch ~ntalns a package of highway route controlled quantity radioactive mllierlals as de· llned In 1173.403(1) or this subchapter shall prepare a written route plan and supply a copy before departure to tht motor vehicle driver and a copy to thr shipper (before departure lor exclu· slve use shipments, or otherwlst within fifteen working days followlnJ departure>. Any varl~tion between thr route plan and routes actually used. and Uae reason for It, shall be reported In an amendment to the route· plan de· livered to the shlppper as S9Qn as prae· tlcable but. within 30 da.ys followln< the deviation. The route (llara shall contain: < 1) A statement or the origin and destination points, a route selected In compliance with this section. all planned stops, and e!!tln1ated depar· ture and arrival times; and (2) Teleph.:me numbers which will access emergency assistance In each State to be entered. <d> No person mal' transport a pack· age of hlghWa}· rout~ controlled. quan· Uty radioactive materials as defined In 1 I '13.403(1) of this subchapter. on a public highway unless: ( 1 r The driver has received within i the two preceding years, written train· J. lng on: <1> Requirements In .Parts 1'12, 113. 8t ndth1e71a0dri·otahclst.lv5eubcma11teaprltaelsr pet ·,· arnst.alponi,"'t· .. : o r ed; leaHrch •ttd Spe,dol Pf'ogr••• A~Minlatretlon1 DOT § 177.134 .ell> The properties and hazar.ds of t_he radioactive materials belna tr&ll$· ported; and <Ill>. Procedures to be followed In case of an accident or other emer~en­ cy. <2> The driver has In his Immediate Po~lon a cerUrlcate of tralf)lng ll$ evidence of training required by this section, and a copy Is placed In hfs qualification llle <see 1391.51 or this title), showing: (I) The driver's name and operator's license number; · <II> The dates training was provJded; <Ill> The name and .address of the person provldlnr the tralr~ln&; <lvl That the driver h~ been trained In the hazards and char~cterl.stlcs of hlahway route controlled quantity ra· dloactlve materials; and <v> A statement. by the person pro· vldina the training that Information on the certificate Is accurate. <3> The driver has In his Immediate possession the route pJan required by paragraph Cc> of this section and oper- ates the motor vehicle In accordance with the route plan. (e) A person may transport Irradiat- ed reactor fuel only In compliance with a plan if required under I l'l3.22(C) or this subchapter that will ensure the physical security or the material. yulatlon for security pur- poses from the requirements or this aectlon Ia permitted so far as necessary ~ meet the requirements Imposed under such a plan. or otherwise Im- posed by the U.S. Nuclear Reculatory Commission In 10 CFR Part '13. Itt U.S.C. 1803, 180t, 1808; 48 CPR U3, App. A to Part U iAmdL 1'11-52. 48 FR 5316. Jan. 19. 1911, as amended by Amdl 111-51. 48 FR 102t1, Mar. 10, 1983; Amdt. 1'11-58, 48 FR 1'1094. Apr. 21. 1983; Anldt. 17'1-68, 51 FR 5915, Feb. 18, 18861 I 117.8U Carrier'• naiatralion ala!tmtnt; f)aatmable c:ryoaenh: liquidt. <a> No person may transport a flam- mable c:ryorenlc Uquld In a portable tank or a carao lank unless he has flied a reetstratlon statement by cer:tl· fled mall, return receipt r~uested, wl~h the Director, OHMT, RSPA In accordance with para1raphs <bl, (cl and (d) of this section. <b> '!:he realstratlon statement must contain the tollowlnc.lnformatlon: (1 > The carrier·~ name an~ principal place of business. <2> Locations where carcQ tanks used to transport flammable crypeeolc lfq. ulds ,art: domiciled, · C3> The serial number or vehicle Identification number of each cargo tank used by the carrier tO· transpor.t flammable cryogenic liquids, aiu:! the name oJ each flammabl!! ~;.ryogcnlc liquid transported lo each cargo tank. <c> The registration statement mu.st be filed: U) Initially betw~~o ,January 1 and Fel>ruary 28, 198~ <thla lnltlal state· ment Is only required «> ~ontaJn tnfor· matlon regardl~c operations t.hat took place durlnc the 90 days prior to the date of the statement>; and <2> Subsequently, between January 1 and February 28 of each odd num· bered )'t'ar alter 1985. <d> For equipment obtained or oper· aUons begun between the two·year filing Intervals specified In paracraph (c) or this section, the Information must be provldP.d on the registration statement flied during the next re· qulred Ullng period, <Approved by the Of(lc:e pf Mana&ement and Budcet under control number 2137· 05.1) <49 U.S,C. 1803, 1804, 1808: 4t CFR 1.53, App, A to Pari. 1> (Amdt. 111·60. 41 PR 21'100, 2'1113, June 1t. Ul83; 48 FR 50t4t Nov. 1, 19131 . Subpart 1-loadittg oncl Unloodiltl Non: For prohibited loadlna and storaae of hazardous material$, see I 1.77.141. I 117.83t General nquiremenlt. <a> Packages secured fn a vehicle. Any tank, barrel. drum, cylinder, or other packaging, not permanenlly at- tached to a motor vehicle, which con. tains :my flilmmabJe. iiquld. com- pressed r,~3, corrosive material. polson. ous material, or radioactive. material must be secured arainst movement within tile vehicle on which 11 .. Is belne transported, under conditions normal~ ly Incident to transportation. (b) No hazardous materials on pole trailer~. No hazardous materials may .. i ATTACHMENI' C Pt. 177, Ap,_ A E:Drrolll.U. Non: !"Dr ~t-.1 R.es1ner cita.- tlona &llecttn. 1 17'T.a'IO see the U$t ot CF'P. Seetforw AUected api)HIU!f m tbe ~ l\.ld.s seeuon of th.ll volume. Al'n:Jnla: A-RD.An0111HU BftWE!:.'f R otr.nl'la RzQlnJtZKEln'S L'f PA.U l '17 Wrrs: STAU Alfll Loc.u. ~Q~ L Pu.f"DMe. nua agomd!% Is • natement ot the Oepanma:~t ot 'l"n.nrccort&Uon poUey trPI'diDc the rei&UOD&IUD of State an,d local Nlea wt\h Federal rulea In PI'" 1'1'1' of thl.a mbch.aoter tor routl.lla' lllOCOr e&l't1ers trans- IIOnin• 1'141oacuve mat.ui&l&. The p~ ot thi.s aoPtnctix II to adVise a Stace or local rovemment ho• It can ex.ercise authorit7 over motor c:arrters unaer Ita own lawa 111 a 1'11AlUler tltat. the Oeovtment of Tra.nsoor· c.auon eonsiderw t.o be eonal.lcenc wlth niles In P art 1'1T (see 4' tr.S.C. liUCa )). Th!s a~ l)endlx anca Pan 1 'I'T .do noc. delecue Federal •uthoncy to recuJ&te mo.tcrearntrs. tL Dc!illitUm. .. Routina' rule" mH!ll &nY -.cUon which eUeeuveJF ~ or oUier- W'IM silllltlcantlJ' r-au1c:Y or delan Ule monment br Dutllle hilbwu ot motor vehl- c::lee conu.lniDa haardAua ma&ertall. &lid whieh aPPU• ~ ot tbe halardou.s nature ot the cano. PU'tl!Ue&. ,_ Uld aizlll.· tv f'fQ\all'ement.e are IDduded It theF MY't such eUecc.. Tr&UJc COD\r'Oia a:e n"' IN:!Ucl· td U tbi!J' an DOl baMcl oa the nuure of the c:arTO. siiCb u tniC:II£- routea bUeO Oil vehl- c::Jee we(&Dt. or &ilil. Aor a.re CI:DU'I'IDQ m.eu- UI'I!S. m Htg~J--, ""'"~ qvAIUUW' I'll· cUo4etiw me~ A. Stot.e ~ P'IILaa. A Stace rouW.. rute wb.lch &~~DUee to blrl:l· ....,. route coiiU'Olled Q\IIZI.UU ra410&CU¥e lll&t.eria.la Ia lncoNiJUJlt With Pan lTT If: 1. It. problblt.e U'II.DIDOriaUoll ot hlcbwu rauee con~Ued quuU'Y radloacdnt a:w.ce- rtJJa by llS.bWU betftft aM two DOinta Without pravtcliM aa alcem.ue rou.t.t for the ctuntion of the probtbiUoD: or 2. lt docs no' meu aU o! t.be touowma cn- terta: Ca> The rule Ia atafllllbl'd bF a State rout- U. .. ucr u ctetluct ID t 1 '11.1 of thi.J JUb- ~~r: UU Tbt rult Ia IIUed OD & COIIIDV&UYe Fa• cllolotte:U l'bl& e v ent oroee. ac leut u ICDitU" u that OI.IWDed 1D the "DOT Ou.ldellrl•'': <c• The rule Ia buecl on evaluation or ~­ olOitc:&l risk whezner It maY occur, and oa .ct en a.. 1 00-146 Editiett) a IOl.lclt.&Uon &lid tubltul&tn C:Oftl1denaan of vtew. trom eadl att~ JU~Udlcaon. .f.ls. c::lu~ loca1 Jllltld!ctloN and other S1.at41c &116 !d) Tbe rule eD~UnS reuonable CODt:lmzU? ot roure beC1NeD Jw1acllet1oa.. B. ~ rov«ao """- A loeal f'OUUila rule tba' a,~pUu t4 bS.htraJ' route CCJntzl)iled q uanu tr I'Uloacuv• l'll&Cel'\als 1s ltlc:oftlla&.. e.ot with this PaZ' U It prah.llllt. or OUIIP• wile atfecu ~~on on roure or .u locat.lona either: 1. Au\hort&eQ br J"llt lTT, or 2. Authottud bF a State routfnl'· ~ ta a ID&Dfttr eonal.lt.ent. With Part ITT. IV. QuarttWa of ra41oactiN ~­ q,~ired 14 t>c sN4cai'IUI&. A State or local rout- Inc rule that aopllee to a radloaectq maa.trt· a1 Cot.her tban a hl•h-r route eoatroUed quanutr racuoacUYe raat.eri&ll, tor •nldl Palt 1 TT reqW.. p~ . 1s.1~ With ~ 1 T1 WLiea It Ia ldeslucal t.o I lTT.I2Stal of tbJa pan.. v. Rad'-tt• ~ tor teJIIch""' C4,..f"'J V IIOC ,........,..._ A 8cac. or JOCIIl rouuna rule thac _,DU• CO a ~ material lor wtUcb PaA 112 cSOiil noc ~ Pl.acU'd~Da Ia IA~ten& With UU. J:1U1. VL OUtllr .....,_ SC&U au 1«U rWt1. .t Stat.e or local ~ rule Ia JDaaOo siat.tDt wttb Pu\ l'n It II: A. Conlllct.e wtua Pb7mcal ~ no QU!rftlaenca wbJcb tbe NlaeleV ~ Commfetoa t\aa eaebliabed 1D 10 CPR Put TS or req.au-eaca ~rovtd bJ' tbe ~ met of~~ t 1-n.=lcl ot uuaw~ 8. RaQ~~&.ra lddWoaa.l or l1*ial ~ a.el. eQUipment. or .con: C:. R~ llildl~ or cSIUueni abl0- D1111 P&Dtl' eacra Dlacanll. or otber bAial'll W'aiDiq clnte.c D. Recau.lns fJl~AjJ route oi&DI or ot.~Mr dOCWDeaca eoocair:aW IAtormafJGD ~ Ia sDeCUic co lftdlvl41&&llbtDCDeiU.I: · I:. ftecauilw IINDOUfleaUOD: P. ~Wiw uci.cleat or lncldtn\ ~ other CbN .. ~ nea.e.rr lot emernM:J~•eet••nee: or O.U~ctt~~ C4t U.S.C. liOJ. 1104. 110&. ~~ crtl 1.52. ADP.Atol'lr\1> [.\melt. l'M-12, 41 PR SUT, JIA. lt. ltll. II &~~~en4td br &ndc. tn-sT. "' PI\ to2t1. Mar. 10. 1113: Aladt. 1T'r·51. •• FR 1'ZOt4. Aor. 21. ltUJ 798 ~ ~ ... J ; /-· ATl'A~ D 19 INCONSISTENCY RULINGS UNDER 49 U.S.C. 1811(a). IR-1 NYC/Brookhaven 43 FR 16954 Apr. 20, 1978 IR-2 Rhode Island 44 FR 75566 Dec. 20, 1979 Appeal 45 FR 71881 Oct. 30, 1980 IR-3 Boston, MA 46 FR 18918 Mar. 26, 1981 Appeal 47 FR 18457 Apr. 29, 1982 IR-4 Washington State 47 FR 1231 Jan. 11, 1982 IR-S NYC/Ritter 47 FR 51991 Nov. 18, 1982 IR-6 Covington, KY 48 FR760 Jan. 6, 1983 Nine-pacl<: PREAMBLE 49 FR 46632 Nov. 27, 1984 IR-7 New York State 49 FR 46635 Nov. 27, 1984 IR-8 Michigan 49 FR 46637 Nov. 29, 1984 lR-9 Governor of Vermatt 49 FR 46644 Nov. 27, 1984 IR-10 New York State Thruway 49 FR 46645 Nov. 27, 1984 Correction 50 FR 9939 Mar. 12, 1985 IR-11 Ogdensourg Bridge 49 FR 46647 Nov. 27, 1984 IR-12 St. Lawrence County, NY 49 FR 46650 Nov. 27, 1984 IR-13 Thousand Islands Bridge 49 FR 46653 Nov. 27, 1984 IR-14 Jefferson County, NY 49 FR 46656 Nov. 27, 1984 IR-15 Vermont Agency of Trans. 49 FR 46660 Nov. 27, 1984 IR-16 Tucson, AZ 50 FR 20872 May 20, 1985 IR-17 State of minois 51 FR 20925 June 9, 1986 APPENDIX C DOT :tncons1 stericYRulinfs ind· Appeals The Hater1als Transportation Bureau of DOT has issued 16 fnconsfstency rul ings dea1ing with st1te or local regulattons on hazardous materials. Two tests ar•used to determine Inconsistency. : Ftrst, the •obstacle• - - .. ._:._ --- . . . test helps decide if the nonfederal regulation presents an obstacle to ac- complishing the purposes of HHlA and its subsequent regulations. Second, the "dual compliance" test determines if it h possible to comply with both federal and nonfederal requirements. The rulings concerned (1) New York City's ban on the transport of spent fuel and large quantity radioactive materials; (2) Rhode Island's regula- t i ons on shipments of liquefied propane gas; (3) Boston's rules governing certain hazardous materials within the city; (C) Washington state's rule requiring red or red-bordered shipping papers; (S) New York City's ad- ministrative code governing definition of certain hazardous m&terials; (6) Covington's (Kentucky) rule requiring advance notice of shipments of all ·· hazardous materials going through its jurisdiction (no inconsistencies were _--~~ound jn rulings (7) and (g} [1 etters from the governors of Vermont ~nd New . .. . 1ork ·h · ·ttie · Nucleu Assunnce Corporation]); (8) "ichigl~ Stlte fire Safety ........ .. ~oar~ and Department of Public Health; (10) New York State Thruway Author1- .. - ··ty; ( 11) Ogdensburg (New Yorlt) Bridge and Port Authority; (12) St. liwrence County (New York); (13) Thousand Islinds Bridge Authority (New York); (14) Jefferson County (New York}; (15) Ve~nt Agency of Transportation; and :(16) Tucson, Arizona's ban on transportation of radioactive materials through the ci ty . Rulings 8-15 had NUlttple areas 1n co~n . ~hat were found 1nconstste"t, i . e ~ : "' (o D!f1nitions of radioactive materi&ls; ,. . . u ,o Pr,nottftcat ioo/permi t rtquiremel!ts; ·· ..... < o Additional personnel, equipmeot, escorts, etc.; Jo Additio"al packagiog/container requirements; and •o Insurance requirements. New York City's bao on spent fuel as well as the Rhode Island and the Boston ruliogs were all appealed. DOT was upheld io each appeal. In each case, the federal~government had e~hasized (1) uoiformity of regulations (to prevent confusion about regulations--a safety hazard when it occurs), (2) overall safety--but not at the expense of aoother jurisdictioo (a matter ~ of routing}, and (3) unimpeded traffic or the safety hazard created by un- necessary delays. These are the reasons for addressing the issues of hazard warniogs, packaging, reporting requirements, hazardous materials definition questions, redundancy of state requirements, time-of-day baos, and routing bans. MTB sees uniformity and safety as two sides of the same coin. - 54 - DOT Inconsistency Rulings Federal Register, April 20, 1978, Vol. 48, No. 77. DOT--Materials Transportation Bureau, New York City Health Code, Notice of Inconsistency Ruling. Federal Register, December 20, 1979, Vol. 49, No. 246. DOT--State of Rhode Island--Rules and Regulatio~s Governing the Transportation of liquefied Natural Gas and liquefied Propane Gas In- tended To Be Used by a Public Utility. Federal Refister, March 26, 1981, Vol. 46, No. 58. DOT-- 1ty of Boston--Rules Governing Transportat1on of Certa1n Hazard- ous Materials by Highway Within the City. Federal Register, January 11, 1982, Vol. 47, No. 6. R~search and Special Programs Administration--State of Washington House Bill No. 1870 Governing Requirements for Red or Red-Bordered Shipping Papers for Hazardous Materials. Federal Register, November 18, 1982, Vol. 47, No. 223. Inconsistency Ruling IR-S; City of New York Administrative Code Govern- ing Definitions of Certain Hazardous Materials. Federal Register, January 6, 1983, Inconsistency Ruling IR-6; Transportation of Hazardous within the City. Vol. 48, No.4. City of Covington Ordinance Governing Materials by Rail, Barge, and Highway Federal Register, November 27, 1984, Vol. 49, No. 229. Inconsistency Rulings IR-7 - IR-15. Federal Register, Hay 20, 1985, Vol. 50, No. 97. Inconsistency Ruling IR-16; Tucson City Code Governing Transportation of Radioactive Materials. - 55 - Appeals to DOT Inconsistency Rultngs federal Register, October 30, 1980, Vol. 45, No. 212, p. 71881. SUte of Rhode lshnd Rules ind Reguht tons Govern lng the Trlnsporh- tion of Liquefied Natural Gas and Liquefied Propane Gas Intended To Be Used by a Public Utility. Inconsistency Rul ing (IR-2); Notice of Deci - sion on Appeal. Federal Register, April Z9, 1982, Vol. 47, Ho. 83, p. 18457. Clty of Boston Rules Governing' Tnnsportat1on of Certain Huardous MateriAls by Highway Within the City. States De 1rtment of Trans ortation, 715 The Ci ty of New York v. The United States Department of Transportation, 104 s. ct. 403. Non-Preemption Determination Department of Transportation, Research and Special Progr~s ~inistrat1on, [Docket No. NPDA-Z) City of New York; Hazardous Materials Transporta- tion; Non-Preemption Oetenmination No. NP0-1, Septe~er 9, 1985. - 56 • 1 • with emergencies involving their rele~se_ Effective ~isseminatiQn qf th~t knowledge becomes a '"''~llenging task of organization and one that will al- ways involve state government. This report is designed to acquaint state legislators with the issues and problems that may involve state legislation relating to radioactive materials accident response. GOVERNMENT REGULATION Federal A'ITACHMENT F The U.S. Department of Transportation's (DOT) Code of Federal Regula- tions, 49 CFR, regulates all modes of transportation of radioactive materials. Highway carriers are covered in §§350-399, rail carriers in §§Z00-268. The U.S. Nuclear Regulatory Commission's (NRC) regulations on radioactive materials transportation are in 10 CFR §§71, 73, and 75. The Federal Aviation Administration (FAA) covers air carriers in 14 CFR §§121 and 135. The U.S. Coast Guard (USCG} regulates water carriers in 46 CFR §§146-148 and in 33 CFR §126. The U.S. Postal Service regulations for post- al shipp~rs and carriers are in the Domestic Mail Manual and Publication 6, Radioactive Materials (9-83}. The U.S. Environmental Protection Agency (EPA) regulations are in 40 CFR. The EPA and DOT coregulate some radioac- tive materials, which are identified by the letter "E" in the first column of DOT's hazardous materials table in 49 CFR §172.101 (11-84). The U.S. Department of Energy (DOE) is a quasi-regulator in that it requires its con- tractors to obey all federal regulations. In 49 CFR, radioactive materials are treated as a subset of hazardous materials. The regulations establish what kinds of events must be reported, what kinds of packages must be used, what labels and placards must be af- fixed. to the packages and transport vehicle, and what the external dose limits are for packages and transport. Routing criteria also are prescribed - 4 - for highway route controlled qu1ntities in lype 8 packaging, including spent fuel. The transportation sections of 10 CFR focus on fissile radioactive materials and on quantities of RAM (except low specific activity (LSA) materials} exceeding Type A limits. NRC imposes physical security require- ~ents on its licensees for spent fuel and highway route controlled quanti- ties of radioactive materials while in transit. NRC also defines the cir- cumstances that would trigger the n~ed for advance notification of certain ' kinds of shipments of radioactive materials (10 CFR §§7l.Sa, 73.27) (1-85}. Appendix A contains the federal laws relating to radiological emergencies. State and local State and local governments bear the preponderance of the burden of preparation for emergency response. State offices must:l o Develop and d~stribute an emergency response plan; o Designate the response teams; o Coordinate with federal, local, and other state agencies; o Negotiate interstate agreements for accidents close to a border; and o Ensure that operational procedures are in effect. Local governments must: o Attend to the immediate emergency; o Notify appropriate authorities; and o Take containment action. - 5 -