spent fuel was not inconsistent with the Hazardous Materials Transportation Act. OCRWM indicated in its discussion paper that it would review the ruling “and its potential effect on NWPA shipping in the next iteration of the transportation plan” (ibid.). The discussion paper concluded with OCRWM stating that it would “comply with all legally valid State, Tribal, and local transportation requirements when conducting waste shipments under the NWPA” (ibid., A-124). It remained to be determined, however, which state, tribal, and local requirements would be deemed“valid.”OCRWM pledged to continue studying“DOT advisory rulings and court decisions” to help define the role these non-federal entities would have with regard to regulating shipping activities. According to OCRWM, “All editions of the comprehensive transportation plan will continue to outline DOT and court rulings, and note progress toward a definition of regulatory authority” (ibid.). OCRWM intended to produce a “written policy statement by mid-1990” to clarify the program’s position on state, tribal, and local regulation of transportation, identifying restrictions that would apply to NWPA shipments. The target date for issuing the policy statement was timed to precede the publication of a request for proposals for service contracts, since the information would be useful for potential bidders (ibid., p. A-125). As reported in the Transportation Institutional Plan discussion paper, participants at the 1985 institutional workshop offered three suggestions for OCRWM to work with states, tribes, local governments, and other federal agencies to“clarify the regulatory roles of various governmental agencies for such activities as emergency response, inspection, and enforcement” (ibid.). One suggestion pertained to“special transportation requirements” in states that served as host for NWPA facilities or shipping sites. A second suggestion was that “a negotiated intergovernmental approach”might be necessary to resolve issues related to the regulation of shipping activities. Finally, stakeholders suggested OCRWM evaluate “the use of interstate agreements to facilitate the development of nationally uniform transportation requirements” (ibid.). OCRWM’s cooperative agreement with the Commercial Vehicle Safety Alliance (CVSA) is the single example of the agency following through on this suggestion— in this case, to develop a standardized approach to state inspection of truck shipments of spent fuel and high-level waste (for more information, see the section on Inspection and Enforcement). The 2007 pre-decisional draft of OCRWM’s transportation plan stated that “DOE’s policy for meeting or exceeding the regulatory standards for shipments of SNF and HLW is further detailed in DOE M 460.2-1 [DOE’s Radioactive Material Transportation Practices Manual, or DOE Manual]…and Appendix M of the FEIS [Yucca Mountain Final EIS]” (DOE 2007a, p. 6). The DOE Manual states that, “As a matter of policy…all DOE shipments will be undertaken in accordance with the requirements and standards that apply to comparable commercial shipments, except where there is a determination that national security or another critical interest requires different action” (DOE 2008f, p. 2). Appendix M of the Yucca Mountain Final EIS, published in 2002, does include a section on “Transportation Regulations” (M.2); this section, however, makes
only one reference to state regulations: “DOE shipments of spent nuclear fuel and high-level radioactive waste from reactors and DOE sites around the country to a repository at Yucca Mountain would comply with applicable Federal, Native American, state, and local government regulations” (DOE 2002, Appendix M, p. 3). OCRWM’s revised transportation plan, published in 2009, makes a similar reference to the DOE Manual and another appendix — this time, to Appendix H of the Supplemental EIS (published in 2008). The wording in Appendix H is even more vague with regard to what non-federal requirements would apply to NWPA shipments. Section H.2 — analogous to Section M.2 in the Yucca Mountain Final EIS — addresses “Transportation Regulations” (DOE 2008c, p. H-1). The opening paragraph states that “For transportation of [spent fuel and high-level radioactive waste] to Yucca Mountain, DOE would meet or exceed U.S. Department of Transportation and NRC rules” (ibid., pp. H-1 and H-2). The only mention of states is with regard to DOE’s objective of working“with states, local government officials, federally recognized American Indian tribes, utilities, the transportation industry, and other interested parties in a cooperative manner to develop the transportation system” (ibid., p. H-2). OCRWM’s gradual movement away from early commitments to work cooperatively with the states and other affected parties to define regulatory requirements was perhaps foreshadowed by the agency’s unsuccessful attempts in 2006 and 2007 to have Congress amend the NWPA. In 2006, for example, OCRWM succeeded in getting the Nuclear Fuel Management and Disposal Act (S. 2589) introduced in the U.S. Senate. The principal goals of the legislation were related to the repository program— including“funding reform” and lifting the 70,000 metric ton statutory cap on the capacity of Yucca Mountain. Section 7 of the bill, however, would have authorized the Secretary of Transportation, upon request by the Secretary of Energy, to determine “that any requirement of a State, political subdivision of a State, or Indian tribe regarding transportation done by or on behalf of the Secretary of Energy in carrying out the NWPA is preempted, irrespective of whether the transportation otherwise is or would be subject to regulation under the Hazardous Materials Transportation Authorization Act of 1994” (S. 2589, Section 7). The Midwestern states and their counterparts in other regions objected to the legislation, expressing their strong dissatisfaction through resolutions (e.g., CSG 2006) and letters (Campbell 2006, Napolitano 2006). The Council of State Governments’ (CSG) resolution urged the removal of Section 7 from the bill, noting that its passage would threaten “not only the partnership between CSG and DOE, but also safe, secure transportation of radioactive wastes to Yucca Mountain by exempting these shipments from existing federal regulation, limiting states’ abilities to assist in routine transport and to maintain emergency readiness capabilities at the highest level, and possibly undermining public confidence” (ibid., pp. 3-4). The Midwestern Radioactive Materials Transportation Committee even designated preemption as one of its “key issues” related to the OCRWM program, stating the region’s opinion that OCRWM“supporting the preemption of state laws will significantly harm the cooperative relationships the program has spent much of the last two decades cultivating” (MRMTC 2008a, p. 2).
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