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Nuclear Waste Transport 129 Federal Shipments of Radioactive Materials The statutes providing for regulation of transportation of radioactive materials have not applied to certain government shipments. The 1960 legislation authorizing ICC regulation exempted AEC or Department of Defense (DOD) shipments made for the “purpose of national security,” including shipments by contractors on behalf of the agencies .54 When Congress enacted HMTA in 1975, it provided that the act only applied to “transportation in commerce” of hazardous materials.55 Shipments by DOE or DOD designated by them as related to national security remained exempt from DOT regulation .56 The original House version of the legislation that became HMTUSA included a provision requiring “shipments of high-level radioactive waste or spent nuclear fuel made by or under the direction of the Federal Government [to] conform with” DOT regulations; this language, however, was not included in the version of the bill eventually enacted.57 Other legislation, however, imposed a variety of regulatory requirements on DOE’s transport of nuclear wastes. The Nuclear Waste Policy Act of 1982 made DOE’s transportation of SNF and HLW wastes to a federal repository or MRS facility subject to NRC packaging requirements and also required DOE to notify state authorities of shipments.58 The WIPP Land Withdrawal Act, passed in 1992, required DOE to study transportation options, to use NRC-certified packaging, to give states and tribes advance notice of TRU shipments, and to coordinate with states and tribes on emergency preparedness; it did not require DOE shipments of TRU to WIPP to adhere to DOT regulations.59 However, in 1987, DOE signed an agreement with New Mexico containing provisions committing DOE to adhere to DOT and NRC regulations for transportation of nuclear waste to the WIPP facility and to package all waste shipped to WIPP in NRC-certified packages.60 In addition, DOE has declined to characterize its shipments of naval SNF to Idaho as national security shipments, thereby agreeing to subject them to DOT regulation.61 DOE has also coordinated with regional organizations of states on transportation issues, and has entered into agreements with regional organizations on its radioactive materials transportation practices.62 Currently, “as a matter of policy,” DOE complies with NRC and DOT transportation regulations for all shipments of radioactive materials, even when not required to by legislation or agreement, except when DOE determines that national security requires that it deviate from NRC and DOT standards.63 Even for national security shipments, DOE states that it coordinates with other federal agencies and with state, tribal, and local governments “to the extent practicable” and undertakes to meet or exceed safety and security requirements for comparable commercial shipments.64 The Current Nuclear Waste Transport Regulatory Structure Nuclear Regulatory Commission (NRC) NRC regulates nuclear waste packaging and related transportation matters, such as labeling packages, lifting and tie-down procedures, protecting workers and the public from radiation during transport, and receiving and opening packages upon delivery.65 Found at 10 C.F.R. Parts 20, 71, and 73, these standards specify acceptable doses of ra- 130 Fuel Cycle to Nowhere diation for both occupational and general public exposure; establish the tests that packages must undergo; provide standards for package design certification; and establish various procedures, such as measures for detecting and preventing unauthorized access to packaging while loaded on the truck or railcar, and coordination with law enforcement authorities before shipping nuclear waste, for the physical security and protection of the waste and its packaging while in transit.66 Rather than specify a predetermined list of materials or designs, 10 C.F.R. Part 71, Subpart E, sets out the basic performance standards for all packages. The most important performance standard is that the use of the package will not result in loss or dispersal of radioactive contents or in significant increase in external radiation levels. Subpart E also regulates the lifting and tie-down standards for all packages; external radiation standard for all packages; additional requirements for Type B packages; and additional requirements for Type B packages that contain more than 105 A2 (a measure of maximum radioactivity).67 Subpart F of Part 71 specifies the tests to ensure proper function of the package under normal conditions of transport, and proper function after a series of hypothetical accident conditions.68 Subpart G of Part 71 sets out the operating controls and procedures for shippers or carriers , which include preliminary inspections before the first use of a package, routine inspections of the physical condition of packages, and...

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