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124 Fuel Cycle to Nowhere DOE is responsible for managing and regulating shipments of its own wastes, as well as of SNF from naval reactors and from foreign research reactors. It generally uses private truck and rail carriers to make these shipments, which are subject to NRC and DOT regulation. In carrying out these activities, DOE has, over the years, as a result of federal legislation and its own contractual commitments, become obliged to adhere to NRC packaging and associated regulations and to DOT transportation safety regulations . DOE also complies with NRC and DOT regulations as a matter of policy, even when not legally obligated to do so, except when it determines that, for national security reasons, following such regulations would be inappropriate. The most comprehensive study of nuclear waste transportation is that of the NAS Committee on Transportation of Radioactive Waste, whose report, Going the Distance?, was published in 2006.1 The committee found that, overall, the current regime for nuclear waste transport is regarded as working well. More than ten thousand rail and truck shipments of various nuclear wastes, including regular shipments of TRU wastes to WIPP over the past eleven years, have been made without an accident involving any release of radioactivity.2 The earlier safety record, however, has been found wanting by at least one commentator, who reported a significant number of LLW transport accidents involving some radioactive releases.3 Moreover, there are significant unknowns regarding the degree and magnitude of terrorism risks that are difficult to assess because much of the information gathered by the government on the issue remains classified; the NAS committee reported that it did not have access to key information on terrorism in preparing Going the Distance? and was therefore unable to evaluate the terrorism risks entailed in nuclear waste transportation.4 Moreover, shipment of the nation’s large accumulated stocks of HLW and SNF to a repository or (in the case of SNF) to federal or private consolidated storage facilities would present logistical and risk-management challenges on a much larger scale than faced to date. Nonetheless, the NAS committee found that there are no significant technical barriers to the safe large-scale transportation of SNF and HLW, and this conclusion has been endorsed by other experts.5 The committee, however, emphasized that to succeed with such a project, the federal government will need to take steps to win the confidence and trust of the public, which continues to express significant concerns about the safety of nuclear waste transport,6 and gain the cooperation of states and localities. The Evolution of Nuclear Waste Transport Regulation AEC was originally assigned by Congress the regulatory responsibilities over nuclear waste transportation that are now charged to NRC, DOT, and DOE. Under the broad authorities granted to AEC by the 1954 Atomic Energy Act, which includes authority over “the transfer, delivery, receipt, acquisition, possession, and use of nuclear materials ,”7 AEC regulated and controlled all aspects of the transportation of nuclear materials , including nuclear wastes, at every point in their life cycle. Later, in the Energy Reorganization Act of 1974, Congress divided AEC’s broad management and regulatory powers, which included general authority to regulate transportation of nuclear wastes, between NRC (civilian activities and wastes) and ERDA, which later became DOE (defense activities and wastes).8 Nuclear Waste Transport 125 Early Federal Radioactive Waste Transportation Legislation Congress first specifically addressed transportation of radioactive materials in 1960, when it passed legislation authorizing the Interstate Commerce Commission (ICC) to require “the best-known practicable means for securing safety in transit” by regulating packaging, marking, loading, and handling of shipments of radioactive materials by land, including by truck and by rail, and to “prescribe the route or routes over which . . . radioactive materials . . . shall be transported.”9 Congress required ICC to consult with AEC before issuing regulations relating to radioactive materials.10 ICC regulation applied only to commercial shipments of radioactive materials; the legislation specifically exempted shipments of radioactive materials by the Department of Defense or AEC for “national security purposes.”11 The statute also did not address the role of state and local authorities in regulating hazardous materials transportation. When Congress created the Department of Transportation in 1966, it did not transfer jurisdiction over transportation of radioactive materials to the new department; ICC retained that jurisdiction.12 ICC authority over road and rail transportation of hazardous materials increasingly overlapped with other federal efforts, such as DOT’s regulation on railroad safety and its advisory role on hazardous...

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