LIABILITY The Price-Anderson Act covers nuclear power plant accidents. Early on, there was some concern that the Price-Anderson Act coverage would not apply to transportation accidents involving spent fuel, however according to OCRWM documents, the repository program’s transportation activities are among those covered under the Act. States and the public, therefore, will not incur the costs associated with responding to a nuclear transportation incident. Additionally, the states had sought assurance from OCRWM that they would not be burdened with the costs for recovery and cleanup from transportation accidents. OCRWM considers cleanup costs to be included in the list of costs for which states could seek reimbursement from OCRWM. The issue of liability for incidents that could occur during the shipment of spent fuel and high-level waste to a federal repository is addressed in several OCRWM documents, principally the 1986 Transportation Institutional Plan , “Transportation Contingency Plan,” and the Final Yucca Mountain Environmental Impact Statement (EIS). According to OCRWM’s 1986 Transportation Institutional Plan , “Liability coverage is currently available to reimburse the public for damages suffered in the event of either general traffic accidents or serious radiological incidents occurring during the transportation of radioactive waste” (DOE 1986c, p. A-62). Such incidents are indemnified under the Price-Anderson Act of 1957, which sought to promote the nuclear industry while protecting the public by making sure that funds would be available to pay damages incurred in the event of a nuclear incident. In 1988, the Act was expanded to cover precautionary evacuations at nuclear facilities (DOE 1995g, p. 16). The Act established a system of federal indemnification and private insurance to ensure that funds would be available to cover the costs of a nuclear incident. Under this system, “regardless of who is found legally liable for a nuclear incident resulting from a DOE contractual activity or Nuclear Regulatory Commission-licensed activity, the indemnity will pay the claim” (DOE 2002, p. M-27). Indemnification of liability applies to “contractors, subcontractors, suppliers, shippers, transporters, emergency response workers, health professional personnel, workers, and victims” (ibid.) and the Price-Anderson Act requires DOE to include indemnification agreements in its transportation contracts. DOE nuclear waste activities, including storage, handling, transportation, treatment, and disposal of spent fuel, high-level waste, and transuranic waste are among those covered under the Price-Anderson Act. The Price-Anderson Act indemnification covers “all reasonable additional costs incurred by a state or subdivision of a state in the course of responding to a nuclear incident or precautionary evacuation” (ibid., p. M- 25). State and local governments would thus be able to recover any costs they incurred in responding to a nuclear incident, including a transportation incident. A nuclear incident is defined as “any occurrence, including an extraordinary nuclear occurrence, causing bodily injury, sickness, disease, or death, or loss of or damage to property, or loss of use of property,
uniform throughout the nation. Additional requirements apply to routing higher-radioactivity shipments. The role of state and local governments in routing radioactive materials is described in DOT regulations. DOE Order 460.1B directs the department to follow DOT’s Hazardous Materials Regulations for transporting hazardous materials (Title 49 Code of Federal Regulations Parts 171-180). The NRC, which licenses and regulates nuclear facilities and materials, is responsible for regulating the packaging and transportation of radioactive material for its licensees. However, because DOE is not an NRC licensee, the department is not legally bound by NRC regulations. The NWPA requires OCRWM to use NRC-certified casks for shipping and to follow the NRC’s regulations for provide advance notification of shipments. In“Developing the Transportation System,”OCRWM stated its intent to“comply with all applicable DOT, NRC, and DOE safety and security standards that exist at the time of the shipment, as well as all applicable safety requirements of state, tribal, and local governments transportation planning documents. The table of resolved issues contained in OCRWM’s “pre-decisional draft”of its “National Transportation Plan” included the question, “What regulations apply to NWPA shipments?”OCRWM provided an answer: “DOE meets or exceeds DOT and NRC transportation standards that would apply to comparable commercial shipments” (DOE 2007a, p.8). In the “National Transportation Plan, Revision 0,”OCRWM emphasized the program’s “longstanding commitment to meet or exceed the DOT and NRC safety and security requirements and standards that apply consistent with federal requirements” (DOE 1994c, p. 3-2). OCRWM repeated the same commitment in several later to comparable commercial shipments” (DOE 2009, p. 6). The Midwestern states have identified NRC regulation of transportation as one of the region’s “key issues” recommending that “OCRWM’s shipments of commercial spent nuclear fuel and high-level radioactive waste follow the same safeguards and security criteria (e.g. regulations, orders, and additional security measures) as NRC-regulated shipments” (MRMTC 2008a, p. 1) With regard to DOT regulations, early on in the repository program, OCRWM said that, in compliance with DOT regulations, transportation routes would be chosen by the carrier. In the late 1990s, however, OCRWM agreed with the regions’ recommendation that the program choose the transportation routes in consultation with stakeholders rather than leaving the decision to a private carrier. This issue is of particular interest to the states because knowing transportation routes well in advance of shipments is essential to the success of OCRWM’s program to provide financial assistance to states and tribes (see the section on Section 180(c) Implementation ). States may not know the routes far enough in advance if they are determined by the carriers. In 2008, DOT’s Pipeline and Hazardous Materials Safety Administration (PHMSA) published a rule to enhance the safety and security of hazardous materials shipments, including those of radioactive materials. The rule requires rail carriers to compile annual shipment data and use that data in selecting future shipping routes. Compliance with this new DOT rule could have a serious impact on OCRWM’s routing decisions.
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