ML19275B656
| ML19275B656 | |
| Person / Time | |
|---|---|
| Issue date: | 02/01/1980 |
| From: | Kerr G NRC OFFICE OF STATE PROGRAMS (OSP) |
| To: | Oneil J MARYLAND, STATE OF |
| Shared Package | |
| ML19275B657 | List: |
| References | |
| NUDOCS 8002140047 | |
| Download: ML19275B656 (25) | |
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.ry THIS DOCUMENT CONTAINS POOR QUALITY PAGES 7001/ YO O 7
Mr. John T. O'Neil, Jr.
Legislative Aide to Delegate Joan P. Pitkin Maryland House of Delegates j
Annapolis, Maryland 21401 l
Dear Mr. O'Neil:
I am pleased to respond to your request of December 7,1979 for coments on proposed Maryland legislation concerning the transport of radioactive material s.
Under the existing Federal regulatory system, protection of public health and safety in transportation of radioactive materials is achieved by i
setting standards for package integrity (under normal and accident condi-tions), reviewing and approving applicant package designs for. satisfaction l
of these standards, requiring quality assurance programs and inspecting 1
i and enforcing compliance with the standards codified in Nuclear Regulatcry Commission (NRC) regulations. Adequate safety does not depend on regula-tory control over vehicle routing or operational controls.
However, we recognize that those transportation controls routinely applied by State and local governments, such as driver training, vehiclo maintenance, and j
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closing of defective roads help improve safety by preventing accidents from occurring.
In our recent reexamination of our regulations on packaging and transpor-tation of radioactive materials, documented in the " Final Environmental Statement on the Transportation of Radioactive Material by Air and Other Modes," NUREG-0170 (copy enclosed), we concluded that the environmental imoacts of normal transportation in the United States, which involves approximately 2.5 million packages of radioactive matarials per year, and the risks attendant to accidents involving radioactive material shipments 1
are sufficiently small to allow continued shipments by all. modes. Because
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transportation conducted under present regulations provides adequate safety
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to the public, we concluded that no immediate changes to the regulations are needed at this time.. This conclusion could thus be looked on as being inconsistent with the stated bases for the ordinance.
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The NRC is extending the work of NUREG-0170 to look more closely at A ',
transportation of radioactive materials through densely populated areas in L A
urban environments. The presently available preliminary document for the gh lt urban study, " Transport of Radionuclides in Urban Environs: Working Draft acncc~m-wm n ann t% lo7m ewwe +w,4 nn+ % nyenen a
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,,,,g ormal transportation and expected health effects from cc tential transoor-al """"""""" ;l tation"secidentr"are"very"stis"t ; " WitN"re@5ct"tc"rabstree"of"sperrt fa
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Jcnn T. O'Neil, Jr. -
casks, the study indicates that casks are quite invulnerable to small ar 3 fire or small explosive charr:es and that successful dispersion by sirle mechanical means is unlikely.
The study further indicates, however, that sabotage of a spent fuel cask with large explosive charges might achieve a release of radioactive material which might present significant health and safety consequences. Since large uncertainties exist in understanding the physical mechanisms involved in explosive sabotage, the NRC is pursuing I
a research prog.am to improve that understanding. This research program t
will probably not yield results soon.
Even though the staff believes that the likelihood of a sabotage 'ittack on a spent fuel shipment is low and the difficulty of breaching a cask and dispersing radioactive material is high, the staff. has imposed interim protective measures for spent fuel novements
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pending the completion of these research activities (44 Federal Recister 34466, June 15,1979).
Current NRC policy is that specific routing information for spent fuel shipments is sensitive safeguards information and is not subject to public l
disclosure. Arrangements should be made to either (i) delete routing infomation from the Maryland certification requirements, or (ii) coordinate the transfer of this infomation in a way that is not subject to public disclosure.
The ordinance would provide for shipment Demits.
However, note that paragraphs (c)(3) and (d)(1)(B) (the latter before deletion) amount to an t
i effective ban on shipments of radioactive materials related to nuclear power generation or industrial uses. The ordinance also provides for routing con-trol and advance notification.
These specific topics and others related to emergency response are discussed in a joint MRC-Department of Transoortation (DOT) study group report, NUREG-0535.
A cooy of this document is enclosed for your information.
The study recognizes the desires of State and local governments for shipment monitoring and advance notification, but does not find requirements for such infomation essential to protecting oublic health and safety.
The matter of Federal generic routing control is being considered in a rulemaking proceeding on highway movements of radioactive materials that has been announced by the DOT (copy enclosed).
The NRC is assisting the D0T in this proceeding under the tems of a Memorandum of Understanding between our agencies. This proceeding is expected to be completed at the end of 1980.
If this rulemaking proceeding results in the adoption of Federal routing controls under the Hazardous Materials Transportation Act, State and local ordinances.on this matter may be preempted.
We believe that local governments can be most effective in the safe regula-tion of radioactive materials transportation not by writing additional regulations but by adopting Federal requirements and cooperatino with the r eaera t govern 1 1ent in mspecting shipments to determine compliance witn
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ltr. John T. O'Neil, Jr.
3-these requirements. To this end, the DDT and the NRC have a joint program for contracting with Stata and local governnents for transportation sur-veillance.
Federal. State and local cooperation can also be enha' iced in the matter of emergency response.
The NRC, in cooperation with the Federal Emergency Management Aoency (FET.), sponsors a training course at the Department of Energy Nevada Test Site, where realistic exercises have been constructed, and invites participation by State and local governments..One i
of these exercises simulates a transportation accident with a fire. All I
the expenses of the course are underwritten by NRC and FE?tA, including travel and per diem of the carticipants.
He ask that a whole or major part of an emergency response team take the training simultaneously rather than just one or two individuals.
Five officials from the State of !!aryland have already taken the course.
Information about the course should be requested from Mrs. Shirley ',leich, telephone (202) 566-0912.
With a view for_ disposal of radioactive material, we cannot support this I
legislation.
In banning rail and highway transportation of spent fuel or j
any radioactive waste,.the Bill would effectively establish a priori State veto of any future facilities for the storage or disposal of such material i
in Maryland. This is inconsistent with Commission policy as expressed in i
NUREG-0539, which found that a State veto would permit a relatively small i
portion of the nation's citizenry to halt or seriously impede the Federal waste management program even if the normal regulatory processes were to lead to the conclusion that the wastes can be safely stored and disposed of.
NUREG-0539 goes on to recommend that if Congress does choose to provide for a State veto, the circumstances under which it could be exercised should be r
carefully spelled out. By prohibiting the transport of radioactive wastes or spent fuel "into, within or through" the State, Section (C)(3) of this Bill would forbid the siting of future radioactive waste management facilities without regard to any such justifying circumstances.
This provision would also have the effect of forcing existing users of l
radioactive materials in the State either to store or dispose of their wastes on-site, or to arrange for waste removal by means other than rail or highway.
Neither alternative,would further the goals of safe transpor-tation or sound selection of waste ' facility sites.
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Also, inasmuch as Maryland directly enjoys the benefits of nuclear power,'
nuclear medicine, nuclear research, and a variety of ' industrial applications, i
we believe it would be irresponsible to refuse even to consider establishing a facility, even for Maryland-generated wastes, no matter how well-qualified the potential site.
i I am enclosing as Enclosure 4 additional detailed comments.
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f'r. John T. O'"eil, Jr. "It is our opinion that where Stata law is consistent with new Federal regulations promulgatad under the !CITA or where the State in a legitimate exercise of its colice oower incases ceneral, non-radiological constraints (e.g. speed limits, load limits) on all truck transport, the State will not be creemoted by Federal statute or regulation from enforcing these laws.
However, even if 1
a State requirement for a " Certificate of Emergency Transport" (as i
called for in the proposed legisla' tion) is-consistent with HMTA implementing regulations on highway transport of licensed radio-active material, it is our legal opinion that, such a requirenent might well be found to be a constitutionally imeermissible burden on interstate comerce. Moreover, once the D0T reculations on this subject become effective, there is a strong nossibility that many of the bill's provisions will prove to be incensistent and therefore preempted."
i If we can be of furthcr assistance to you, please do not hesitate to call i
upon us.
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Sincerely, r
b G. k'ayne Kerr Acting Director i
Office of State Programs
Enclosures:
1.
NUREG-0170 2.
NUREG-0535 3.
FR 43, 36492 4.
Additional Detailed Coments 5,. J.egal Analysis DISTRIBUTION:
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"It is our epinion that where State law is consistent with new Federal regulations promulgate'l under the HitTA or where the State in a legitimate omrcise of its police power imposes general, non-radiological constraints (e.g. speed limits, load limits) on all truck transport, the State will not be creempted by Federal statute or regulation from enforcing these laws.
However, even if a State require'nent for a " Certificate of Emergency Transport" (as called for in the oropused leoislation) is consistent with HFiTA implenentinq requlations on hinhway transport of licensed radio-
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active natorial, it is our leqal opinion that such a requirenent might well be found to be a constitutionally impermissible burden o,n interstate commerce.
iloreover, once the 00T regulations on y
this subject bacona effective, there is a strong possibility that many of the bill's provisions will prove to be inconsistent and therefore preempted."
If we can be of further assistance to you, please do not hesitate to call upon us.
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Sincerely, a:
Mus" G. Wayne Kerr Acting Director Office of State Programs
Enclosures:
l.
flUREG-0170 m
2.
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FR 43, 36%2 4.
Eiditional Detailed Coments 5.
Legal Analysis DISTRIBUTION:
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., - s PROPOSED RULES 26492 Carriers Of Various rad!cacth*e "nate '
Us14, when Soo Ut* La used fet ctstress purposes sh.!p and coast suuon. atas use !!s kJZa for canics als now restT C0 use of bridges t 22nci and roads otherwt'e open to pubL escegt f or wand watem use. Local junsdictions have also i=
Dest use. the l'resuenc7 tasc 310 325 kR2 is svadable to gov.
em:::ess af.s nonsoverfenent aeronautsead rscor:enranon nauons Wanc of the termonal base une a.s co.
posed require =ents for per*.it, fe-:
Us** : !a adation to its cresent soven.:
a nce notiCC. escort 3. and sieC1fie ortt awJ mLA tse m.utarr services. Its age.merL t3e f rewecct $10 h.32 La avaalante ter nonsonrmsent sn:c*neticester op.ersuor.s unen 0e70034C0 nauutal c:. des front se. ore and required for aeronaut.;cza te.
11=es of trave 1. In many CO.seS. the" local restnctions are a:sociatest wit dior.aotsticQ.
local responsibil!ttes for e=ergency 7 Usinst :n ene state et us.4 suuans in the serenauttens rsalonaritsuon sernce shan not cause in.
sponse or for traffic control (sucia terf erence to c.s. Navy rectouon trous u.s sut;oo as Honowu on 1st as.
the establishment of true!c rottte:
This rulemaking will exwine tf PART SL AVIATICH SERVICES tra.nsportation safety aspects of hic way routing of radica.ctive =2 ten:
In i 87.501. paragraph (D is amended to read as followM The ermi,ation will include conside y
ation of rou*dng decisions now bei:
I 87.501 F:wuencies semitabic.
made by ca.rriers and the methods '
which those decisions are =a.de. T5 (0 Radiobes, con stationsj 190-285 k.Iy:t 3:5-415 kE= 510-5:5 kE:.
rulem*ing will examine the safety 4 fects of extsting and possible Feder-CFR Doc. 4-t:533 n!ed 8-15 *3: S:(5 a=2 State, and local highway routing en INFORMATION. trols. Including effecta of actions FOR FURTHER one State or locMity on another.
(4910-601 CONTACT.
Only highway routing of radioact DEPARTMENT CF TRANSPORTATICf(
Douglas Crockett. Office of Es:ard-materials will be considered in t.!
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Meterials Transportarles 8ermsu aus Matenals Regulation. U.S. De-docket.This does not rule out the p.4 partmen*, of Transportation. Roo:n sible future consideration of znatert M Cr1 P m W 6:18.2100 Second Street SW., Wash-in other ha:ard classes a=d och e
ington. D.C. 20590,202 426-0656.
modes of transportation. Hower fDocket No. Eht-164:Admce Noticel highway transportation, of 2.11 fc SUPPLFMINTART INFORMATION:. modes of transportation, offers t CARflAGE BY PUBUC HtGHWAY largest number of routing possibilit L SCoFE OF THIs DoCZrr H!ghway teveing el todoectNe Materials:
and h gnatest access to pow!2d la9uiry A. Beck;--ouruf Cn April 20. 1973.
the MT3 published an opinion (43 FR. *$*
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p AGENCY: Matenals Tran.sportation 16954) concerr4ng the legal relation-g3ce g=3 egg,.gg Bureau.' Researen and Spec:a1 Pro. ship bemeen section 175.111 of the ties in saf ety require =e-t.s t:=posee g-- m Adm.:rustratton, DOT.
New-York C.ty health code and regu-S m d1oc ACT!CN: Advance notice of proposed lations issued by COT under the E==.
B. Sc/ety. m,a1 mdetions, oth DOT and the Nor ardous Matenais Transportation Act Er tm Co m m a m rule-e g.
(EMT.t Title I of Pub. L.93-633). Sec. 5 nsMty for insun=g use SC.C.iARY: This publication invites tion 175.111 of the city's heilth code s e ethods of preparing a=d tr=
cor==ent on the need. ind possible prohibits the transportation in or PC ra a=We matenah. C methods for establish =g rout =g re.
through the city of most co==en-ial "3 * *i
- D*CE2ClDC-cture=ents under the Hr.sardous Ma-ship =ents of radioactive cater
beting and muting, placarcing :
tenals Tnnsportation Act applicable The EMTA is the baste Federal legis.
per entnes, keyed to to highTay carners of radioactive ma.
lation under which the transportancu ***^ "d of ** =2te ':21 te terials. The Marenais Transportation salety of hr.:areous =2tenais taciud. transo rted (49 CFR parts 17:).t;3, Bu.reau (MTS) recently coc:cleted an ing rad!oactt'te matenals, is regulated.
eci lly H 173.7(b). 173.389_,333 ex -mation of a local New York City In the optnlon. MTB concluded that 3
. eDecially part ;
ordinance halt =g the =ove=ent of ra.
EMTA routing authenty !s sufficient
- 7 I'E"I1EICUS t dicacuve =stenais. Similar ordinances to pree=pt State and Iccal highway am pacwg of certsan rn.
have been or =sy be enacted else.
routing requirements (see EMTA.
There. This inoutry is intended to il 105.110: 49 U.S.C.1804.1811). but 3#CiV'n* atenals. are fot:nd at 10 C
U *E NC" aastst = M*3 = decidi:g what Feder. that because a routing requirement 91.
conce the ph al action =2y be jnsti. fled in light of has not yet been established under the C
I special nuclear =c.-
local concerns addressed in such ordin. EMTA that act does not at present ances. A hcanng will be announced prec=pt section 175.111 of the etty's ort to health code.
An xis subsequently.
i3 *"*O*I 53Nt7 " Qui"C'Ut*
ly ad ess s h2g day ut of e
n
- ardous matenais (49 CFR 373.D(ad DATE: Cc=:nents cust be received on or before January 1.1979.
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. m = se m = ate mah,
w ADDRESS: Co=nients must be ad.
elsewhere. afice; interstate ce==erce.
m substantial quantitles, dressed to Dockets Branch. Informa-In some cases local requirements t=2y [.e was d under star tion Services Civuton. Matenals so vary fro = one a.other as to be in, thn predate the EMTA (13 U.S.C.
Transportat:en Bureau. Researen and co=patible. In other cases they t=ay 3IEE8*
Spac:al Piccra=s Ad==1stration. U.S.
t= pose significant additional responsi.
Decan=ent of Transportation. 7.' ash.
bilities on sni:Ders. carners or neigh. I J87 8 Aottei ington. D.C. 20590. Tive copies of cota-bonns Junsdictions. Ex: sting State m Ualess tnere is so rsetmie n-ments are requested but not required. and local requ:re=ents for highway tire. a c2otor vetuele irruch c:n:.2m.s u HDERAL REG 15f te. VCt. &3. NO.16o.--rHUeSDAY, AtJGUST IT,108 Enclosure.3
FROPOSED RULES 36-II. S' ur Posst:2.r Rr:cInon r ous estensis c:ust de e ersted over reutes Deve!opment. Decensber 1977 (availa-o s naca do cot so tt:rouan or near hesnly ble frorn the National Technica! Infor-AL:rt.NA:nT.s popu:sted area.s. ptsces snere crowes are as.
mation Scrwce for $12).
se=0;e? tu.ne:.s. nar ow streets, cr z.Ders.
(2) Lippek and Schuller. Legal. Inst!- to !!!ustmte"severn.1 procedures :rt C:erstt. e converuence is not a basa f or de-tutaonal. and Politicci Issues in Tr2ns-t=ight be used to regulate hic.h-te:-- -~:g whether tt u ;ract::scle to oper, ate a =cter vera:!c is accorca:ce nth ts:s portadon of Nu: lear Matenals at the routing of radioactive = ster.als. N p arscrson.
Bact End of the LWR Nuclear Fuel !s not proposmg to e= ploy any of Cyr.!e. September 30.1977 (Battelle alternatives. Thy are outlined =e.
Eu=an Affairs Research Centers. 4000 as illustrations of available EMT*A Another COT regulation express!y Northeast 41st Street. Seattle Wash. thonty. As illustrat2ons, they ref recogn::es State and local traffic regu. 98105).
differences in State and local dd lation (43 CFR 337.3). Section 337.3 (3) Transport of Radioactive Materi-
~2N partic:pation. d!fferences approves those state and locai require. 21 in the United States (N'UREG-c st to govern =ents, business.
ments which concern the =echanies of 0073). U.S. Nuclear Regulatory Com. censumers. and differences in ji dn..ng and handling vehicles. These mission. Off!ce of Standards Develop-ment as to the necessity for additic State and local requirements are ment. May 1976 (single copies may be Federal scutiny of radioactive nsat rou ghly co= parable to Federal re-obtained by writing to Divisica of als e age by highway. The !
three altematives are probably in qu:rements in 49 CFR par-332. Sec-Technical Information and Document ending e of egency, ecsr.
tion 337.3 states:
Control U.S.
Nuclear Regulatory degree of DOT rul-er sen t 1 237.3 state and toe:2 latrs ordinances.
Com=1ssion. Washl=gtan. D.C. 20555).
- g. aft re @ tw y W m m M:n-s..4 reiwencas.
(4) Environ =ents1 Survey of Trans-fer inspection in the public doc portatica of Radioactive Mater:als to tentatively concludes the impleme-Every noter vetuc!e cenw-t-r hazardous
=.steru2s must te e.nves aso caned ts ec=.
and fro m Nuclear Power Plants tion of the remdatory examples be russee mta tne taws. orr*!mee.s. asd reru- (WASH-1233).
U.S. Atc=Ic Energ7 would procably =ot have major tatto.s of the Junsd!= ton is wtuca it is Co==hsion, Directorate of Regula-nomic consequences under Execu b.ecs opentec c=le.ss tuer are at vanisce tory Standards. December 1972 (coples Order 1::044.
nta spec:.fic reculauens of tne Depart =est available from the Nations 1 Technical A. Require compliance by redic of-T w.sportsuon unies are ap;ueshte to the coerstion of that vete:!e and enfen Infor=adon Semce for $7.05).
fire matericIs hiphtecy cerrters et.
t= pose a more ren=:e=t obugsuon or re-In addition. the Nuclear Regulatory ge -emi routing nde to be estebin stra:st.
Cor-""!ca has contracted for a ge.
by af73. The test of 49 CFR 3
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A third regulation. Issued under the nene environmental assessment on might serve as a naodel for deve EMT.L approves. certain ha n-dous tre.nsportation of radioactive materzals ment of a general roudng regttir'e=
catenals restnctions imposed on the neer or through large densely populat. (v riat. ions would require an e:xe use of tunnels by State or local au-ed areas. Results of this effort will be tion tmder part 107L Specific route proval r licens=g of highway enr:
thenty (43 CFR 177.310). Secdon considered as they become available.
w uld not be neem"y er possible.
177.310 states:
The ite=s !!sted are available for
- 3. Require each htpht:cy ccrrte g 1 7.fu ver.::.r.: - tannds, public !=spection in the MT3 dochets b liced only M mm M room. Copies =sy be obtained from diocer:tte metericIs routes permt Notting coccat=ed is ceu 1:0-183 of this the publi htng agencies or, where ind!-
under a generclly appliccble 2 su::c. aster snsu be so construed as to cutu.
ty er suee sece rec.ustions e.stsetisced.and cated frotn the National Technical in.
routing rule. but pe:- nti ecluntnr-su:usned meer sutnenty of s:ste statute for=stien Semce. Springfield. Va-crnst=c. Altemstive S. a partial lic or =u..;e::aj ord x=ce regard!st the 4:nd.
0:161 (pannent to NTIS should be en-ing sche =e would have many of en:rscter, or cuant:ty et asy ha:st::ous =a.
closed).
features of altemative C. a full lic Y-C. Ute need for con:Utenf rules. Con.
ing sche =e. outlined below. How
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sistency among Fedecal. State, and alternanve B would involve the es tus e1 used for =m transporutson.
local transportation requirements af.
lish.rcent of a genera.1 Federsi rou Sactions 337.3 and 397.9. and section fects both efficiency and safety in nile under which much or tscsr. t 177.310(s). taxen together, reflect the transporution. For h!ghway transpor.
52Y Carriage cf radioactive mate f act that touting of highway traffic in tadon. differences in regulatory re-wou.!d occur, with spectile route hasardcus =stena.s has been a =stter quire =ent.
,ay ggect safety in a proval rectured only for carnage c lef t pn=srtly *o State and local regu.
ade ht mm h w y m
laton, and the pr:nciple that such number of ways, such as-rule. Both the general rule, as id State and local regu!stien should not W Routes used c:ar not be the best avad.
any specific route -approvals, c hace the actual effect of altogether able:
consider, in addition to actual re-for:idding htchway transportation te.
m Coc.tuston resulting from d!.frerences matters such as casder fit.uu tween any two points. even There in locauy enforced rules may result us non.
g,2nes. and availability of alte~-
e oLisnee nth ettber Federal or local other = odes of transportation are methods of transport,ation other t avstlsble. These pronstons constitute
,33 Retouttne that results from a tocally highwsy carriace. The general rul the present posture of DOT highwsY t= posed rule may nave unconsidered effects a spec 2fic route approval. woujd be tour.ng policy.
on other locauties, espec12ilt on their e=tr.
ficient authority for highway ent:
In sediticn to these pronsions there gency responsibd!t:es.
operations conducted in compii sre 11 o a number of puollestions with applicable Federal requirem.
However, regulatory uniformity rnay avstisele concerning radiosettve =ste.
and State and locs1 requirements not be always desirsble or possible, nais transpor stion. which wt11 be con.
consistent with those Federal req due to local transportatten conditions ments would be preempted.
sicered in this doctet. The !!st below is and the e:nergency responsibilities of Thts alternative could s!so prc not inclusive:
(1) Final Fnytren= ental State =ent local authonties. There are therefore for spectfic route approval. Thess ;
en the Transportatten of Psdioactive ;rnettcal limits on the possible scope fled. on a voluntary basis upon 2 Mstenal by Air and Other Modes of uniform or e.tc!urive ED.1TA routtni cation by a carner, or as a rec (NCREG.01701. U.S. Nuc!est Reguls. recuire=ents that nusht be developed ment upon applicatson from a Sta tor / Co==uston Office of Standar:is in this decket.
Local government. Specific route FlettAt 11c:5T11. VCt. 43. NO.16A.NultiDAY, AUGUST 17, 1973
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36494 PROPOSED RULES preval would be u. sed pnmanly for sit-tive Insterial by highway unless the Do local conctioca affectu.: route seleetto uanor.s invoin.c unusual loc:1 condi. route used were prenously approved necess: tate tname=al rece 2: em uen If detaned exa=una 2o : et h :n-ray routes e by.13. Consequently. ensting rout.
W tiens er routes invoinng suostantial ing practtees would have to be phased gg. by wnae. procecures saculd it b n
c00 trove sy.
C. Recutre ecch hip't::cy carrier to out gradually. to reduce confusion and (6) What add 2tter:a1 costs : ar de involve be licessed for ec A rcdioce: ire mete. co==ertial disruption. The mechanics if new routtar rule:s are deretoped and t=
r ct route. This alternative would re.
of this alternative resemble these of ple=ented? How a.e tnose costs Itkely t quire each highway carrier to obtain the process now tued by MTB in issu.
mnect snappers, ca.:w:e.s. Fede.a1. 5. ate, as
.- I=~1e=enting this al.
local governments. n 111ces and the public ing eXetspy. o e pner MT3 asproval of any route to be (B) If not.-
ternauve may requ" ire substantial ad-(1) What are the 1!kely cos:s and beneft:
used in the t. ns;:ortation of rsdicae.
~
tire =stenals. The ca.ner might file Wtrative resources.
of talung no action? -
propcsed routes supported by a s; ate.
D. Int:ife the Nuclect Re7uinfor7 (2) Do e11 stint Csparttles berween Stat ment of ss.fety and lunsdictional con. Comrni.ssion 10 corsider routing re.
and local rules concermnc htsnway carrs24 siderations. Publ!c co= ment would be strzcfions for its lice-tsees. The Nucle. {yggateraals neee to be harmi solle:ted. If the cirners proposal were ar Regulatory Cc==:=ics addresses accepted by MT3. It would authon:e routes used to transport special nucle-A hearing will be held to conside ca.ner ope-ation under the plan for a at materials (10 CFR part 73) and has Tiews on this advs.nce notice. at a ti:=
ce.~.am ter..t. perhaps 2 yers.* Plan ap-the authority to consider routmg 13 and place to be subsequently s.:
proval would preempt State and local both regulatory and licensing proceed
- 21ounced. Drafters of this doctuner recu:rements not conststent with it.
ings.
are Douglas A Crockett. Office c but could =1ke federally enforceable III. RIat ts; ron Coststcr:
IIanudous M2:enals Re ulatio:
those State e.nd local requ!.re=ents af-2dTB, and George W. Tenley. Office c fecttng the carner which are cons:.st.
Co==ent is solleited on the preced-ent with the plan. In some cases, spe-ing discussion and on the questions cial Programs Ad=inistration.
cial locally imposed requirements below.
Commenters are advised t.hst sectio nucht be expressly incorporated into Should radioactive materials be sub-105(b) of the 32CA requires DOT t the plan by the carrier or MTB.
ject to tsore stringent Federal high-E
- * *E' *
- IDE' It would be necessary to establish way routing recutre=ents than now state Cotamerce Cc""-Non before i some general entens by which route imposed by 49 CFR 379.97 suing any regulanion wit 12. respect t pt:Lns could be judged. As in alte na.
W If50--
the routing of ha:::ardous r,ntmals.
tive 3. =atte-s which might be exam-(1) What types. cusstitles and foc of ined could include carr:er fitnes racosctive =.atens.ls snould be conssdered?
Attrnonrr:. 49 U.S.C.1803.1834.1808:
t:3 vel times, and availabtllty of alter-W What benefits.:Ent be achieved?
CFR 1.53(e) and mw-aph am of am nate methods of tr:nsportation. Such (3) wr.at : actors in accuon to population to pan 102.
denstt7 and h2:nway concuans anou.1d D..
hau bas ~ deter----a that th2s scran cnten acdtiennlly would be useful to Norr.-The Malenals Trar:sportath consiaered in co:necuen with rout:=
carr:e s in prepartng plans, and to
- 5 ste and local govern =en:s in *M-ty8'j*[]8 suc" *hM[ notice et:1 n t result in a =ajor econo:::
SD in g
t 1=Dact under the ter=s of T.xecuttre Or:
htenng their highway regulatory pro-special ecule=ect. or the ope atinicosten-12 and DC. t===:e=en.mg procedur g acs.
tence a:d effs::ener of the carner? Should M E W:). d eMateF evaluauon At the end of the term a carrier these f actors be censidered in place of rout.
Avatlable La the docKe' -
could file for renewal. At that ti=e his tur'm How would additional Federal ru!cs 1=ued - in DA M CU*.. N'II.d. D m ' %
sa.fety reccrd. and conditions affect =K.
t=ract State and local regulatory procra=s.
his perfor=ance. could be evaluatec. or e=errency resocese capabtiltles? To what ag:un by a public proce=. Under some extent ts creater umfo. ny in State and -
Dow As A. Caod.
c: cu= stances, and subject to ::roce-local recutremect.s destracle. and to wrtat Jefin? Assoc:cte Dtre:-rar fo-dura! considt ations, the carner's plan extent act.ievaele utrouca Federal rule =.ag.
Hu.:crdon: Jteter. Ir Regule
- =ga a"~* oval cotin be revoted or modified t$) What k.13d of Pedera.1 tule is desirable?
fion. Mclericj.3 7tcn.gporgggio; bef" ore the tern. had run.
Is a generan:ed DOT requ:re=ent prefer-Eureau.
This alternative would = ate it im-able to a procedure that entatis an i=dividu.
possiole to move a designated radioac-al DOT em-mtion of some or a.11 routes?
CFR Doc. '!8-2:733 Ftled 6-16-78: 8:45 a=
FICER.At KEGl$rIR. VOt. 43. HO.160 Th(R$oAY. AUGus717,1973
ADDITIONAL DETAILED COMMENTS ON THE PROPOSED BILL Additional detailed comments on the proposed bill are as follows:
- p. 2, The wording of this paragraph leaves one with impressions:
Lines 6-10 (1) that all radioactive materials are hazardous in a significantly dangerous sense; and (2) that radioactive material transportation accidents have resulted in in-creasing numbers of incidents where releases of dangerous radioactive material into the environment have occurred.
If this is the intended message, this paragraph presents a false and unqualified premise on which to justify the need for this legislation.
- p. 2, We are not aware of any recent releases of radioactivity Line 9 to the environment resulting from transportation accidents in Maryland.
- p. 2 This paragraph conveys the impression that factual evidence Lines 11-16 exists which indicates that large " volumes" of dangerous radioactive material shipments are and will be transiting Prince George's County (or Maryland). We have no knowledge of such evidence, and believe quite the contrary to be true based upon our knowledge of NRC licensed shipments. Hence this paragraph, as the paragraph 1 reference above, also presents a false and unqualified premise to justify the need for this legislation.
- p. 2 This paragraph presents an isceract assertion with respect Lines 17-21 to the monitoring of radioactive material shipments in the United States.
- p. 2 The FES on Transportation of Radioactive Material by Air Lines 22-26 and Other Modes, NUREG-0170, disagrees with the contention that there is a "significant threat to public health and safety" from the transportation of radioactive material.
On the contrary, the document concludes that the overall risk is very small.
- p. 3 The need for the issuance of a " Certificate of Emergency Lines 28-31 Transport" and the posting of a band for radioactive
& p. 4, materials to be safely transported in Prince George's Line 23 to the County (or Maryland) is not apparent from the text of the end of the proposed legislation, nor from consideration of experience dra ft to date with transport of radioactive materials in the legislation United States, nor from consideration of the Federal regulatory requirements applicable to packaging, handling, and safeguarding of radioacti e materials for transport to v
assure the public health and scfety against significant radioactive hazards during transit. The proposed procedure,
. if adopted, will serve only to create unnecessary and costly bureaucratic red tape and administrative obstacles, without gaining any apparent additional safety or safeguards margin therefrom in the interest of public health and safety.
- p. 3 The term " Certificate of Emergency Transport" has a conno-Lines 28-31 ta tion which should be explained in the legislation.
Does it imply that the Certificate will not be issued unless there is an emergency need of some kind?
- p. 4 For shipments requiring physical protection under 10 CFR Lines 23-32 Part 73, the date, time and scheduled route are considered to be safeguards information under Federal regulations, and cannot be released to the public.
(Cat. I/II/III/ and spent fuel shipments fall in this category.) Also, Cat. I shipments are, or will be, classified National Security Information. The state or county will have to agree to protect this information from unauthorized disclosure.
- p. 4/5 The list of required information should be expanded to include the types of information which will ebviously be necessary based upon a reading of the further requirements on pages 5 and 6.
- p. 5 The item on waste and spent fuel seems to be a total Lines 4-7 elimination -- I can't think of any uses other than sto. Je, disposal or reprocessing.
- p. 5 This requirement should not be in this legislation.
If a Lines 4-7 local ban on storage, disposal or reprocessing is desired by the local government, it should be a separate bill.
In any case this section should be qualified by the addition of "within the State [ county?" after reprocessing.
- p. 6 These two clauses are too indefinite to be useful.
If all Lines 14-21 Federal regulations are being met, as is required by (d)
(1)(A) on page 5, there is no need for further evaluation,
- p. 6 Omit the requirement for use of escorts.
Local governments Lines 29-32 should defer to the NRC in regard to physical protection of shipments.
- p. 7 The $1,000 penalty seems rather mild in view of the Lines 20-23 statement of the threat on page 2.
BILL fl0. CB-153-1979 (SUBSTITUTE)
LEGAL ANALYSIS The prefatory language of the bill states that it is AN ACT concerning Transport of Radioactive Materials FOR the purpose of providing minimum standards and regulations insuring the safe shipment and trans-portation of radioactive materials, into, within, through and out of.
The primary responsibility for the regulation of the transporation of licensed radioactive material belongs to the U.S. Department of Transportation (D0T) and the U.S. fluclear Regulatory Commission (NRC).
Because these agencies have overlapping authority in this area, the D0T and the flRC have executed a Memorandum of Understanding (Attachment 1) which delineates the respective responsibilities of the two agencies.
This Memorandum was executed June 8, 1979 (superseding a 1973 Memorandum between the D0T and the AEC) and was published in the Federal Register on July 2,1979 (44 F.R. 38690).
Page 1 of the Memorandum sets forth the Federal statutes which confer upon the DOT and the NRC the authority to regulate the transportation of licensed radio-active material.
Of particular significance is the Hazardous Materials Transportation Act (HMTA), Title I of Public Law 93-633, as amended, 49 U.S.C. 1801-1812.
Section 105(a). of the HMTA (49 U.S.C.1804(a)) provides as follows:
. 5 1804.
Regulations covernina transoortati1n of hazardous materials.
(a) The Secretary [of Transportation] may issue, in accordance with the provisions of section 553 of Title 5 including an opportunity for informal oral presentation, regulations for the safe transportation in commerce of hazardous materials.
[The term " hazardous material" in-cludes radioactive material.] Such regulations shall be applicable to any person who transports, or causes to be transported or shipped, a hazardous material, or who manufactures, fabricates, marks, maintains, reconditions, repairs, or tests a package or container which is repre-sented, marked, certified, or s31d by such person for use in the trans-portation in commerce of certaia hazardous materials.
Such regulations may govern any safety aspect of the transportation of hazardous mate-rials which the Secretary deems necessary or appropriate, including, but not limited to, the packing, repacking, handling, labeling, mark-
~
ing, placarding, and routing (other than with respect to pipelines) of hazardous materials, and the manufacture, fabrication, marking, main-tenance, reconditioning, repairing, or testing of a package or con-tainer which is represented, marked, certified, or sold by such person for use in the transportation of certain hazardous materials.
Section 112 of the HMTA (49 U.S.C.1811) sets forth the relationship between that Act and regulations promulgated thereunder and State laws, county ordinances, city regulations, etc., addressing the same subject.
This section provides as follows:
Q 1811.
Relationshio to other laws.
General (a)
Except as provided in subsection (b) of this section, any requirement, of a State or political subdivision thereof, which is inconsistent with any requirement set forth in this chapter, or in a regulation issued under this chapter, is preempted.
State Laws (b) Any requirement of a State or political subdivision thereof, which is not consistent with any requirement set forth in this chapter, or in a regulation issued under this chapter, is not preempted if, upon the application of an appropriate State agency, the Secretary [of Transporta-tion] determines, in accordance with procedures to be prescribed by
. regulation, that such requirement (1) affords an equal or greater level of protection to the public than is afforded by the requirenents of this chapter or of regulations issued under this chapter and (2) does not unreasonably burden commerce.
Such requirement shall not be pre-empted to the extent specified in such determination by the Secretary for so long as such State or political subdivision thereof continues to administer and enforce effectively such requirement.
Since 1947, Associated Universities, Inc.
(AUI) has operated Brookhaven National Laboratory at Upton, Long Island, under a prime contract with what is now the U.S. Department of Energy (00E).
This operation includes the use of two research reactors which generate spent fuel which is temporarily stored at Brookhaven.
It had been Brookhaven's practice to ship spent fuel six times over a six-week period each year.
These shipments were by highway transport through the City of New York and across the George Washington Bridge into New Jersey.
New York City adopted a provision to its Health Code that has the practical effect of forbidding the highway transportation of commercial shipments of radioactive materials in or through the city.
After notice and hearing, this provision became effective January 15, 1976.
On March 1, 1977, AVI, affected by the New York City Health Code provision as well as by the HMTA, filed an application for an inconsistency ruling, asking the D0T for its opinion as to whether the NYC Health Code provision was inconsistent with, and thus preempted by, the HMTA or regulations issued thereunder.
On April' 4,1978, the DOT issued its ruling (Attachment 2). This ruling was published in the Federal Register on April 20, 1978 (43 F.R. 16953).
In summary, the 00T ruling held:
. 1.
Section 112 of the HMTA by itself, absent specific regulations promulgated under the Act and governing the routing of hazardous materials shipments in the highway mode, was not sufficient to preempt local regulations in this subject area as inconsistent with a Federal " requirement."
2.
The New York City Health Code provision was not inconsistent with the 00T routing regulation in 49 CFR 397.9 because this provision was promulgated under the Transportation of Explosives Act and not under the HMTA. Paragraph (a) of 49 CFR 397.9 provides, in part, that "[u]nless there is no practicable alternative, a motor vehicle which contains hazardous materials must be operated over routes which do not go through or near heavily populated areas, places where crowds are assembled, tunnels, narrow streets or alleys."
3.
The DOT decision applied only to highway transport of hazardous materials.
Although the D0T ruling found no inconsistency between the New York City Health Code provision and any regulations promulgated under the HMTA, the D0T did note that the city ordinance may be preempted by the U.S. Consti-tution's prohibition against any interference with interstate commerce or by the Atomic Energy Act of 1954, as amended.
The D0T also noted that local ordinances, such as the New York City Health Code provision, would have to be consistent with any future rule that may be promulgated by the DOT under the provisions of the HMTA.
. On August 17, 1978, the Materials Transportation Bureau (MTB) of the 00T published an advance notice of proposed rulemaking (43 F.R. 36492) dealing with the subject of highway routing of radioactive materials.
On October 26, 1978, the 00T published a notice (43 F.R. 50006) of its intention to hold a public hearing on this subject in Washington, D.C., on flovember 29, 1978.
We expect that within the next month the D0T will publish for public coment a proposed rule dealing with the highway transportation (including Federal routing requirements) of radioactive material.
The D0T has already expressed its intention to publish a final rule on this subject by the end of 1980.
Conclusion It is our opinion that where State law is consistent with new Federal regula-tions promulgated under the HMTA or where the State in a legitimate exercise of its police power imposes general, non-radiological constraints (e.g.
speed limits, load limits) on all truck transport, the State will not be preempted by Federal statute or regulation from enforcing these laws.
However, even if a State requirement for a " Certificate of Emergency Trans-port" (as called for in the proposed legislation) is consistent with HMTA implementing regulations on highway transport of licensed radioactive material, it is our legal opinion that such a requirement might well be found to be a constitutionally impermissible burden on interstate commerce.
Moreover, once the D0T regulations on this subject become effective, there is a strong possibility that many of the bill's. provisions will prove to be inconsistent and therefore preempted.
^ If i _':K-i.,,-
~
F
_r9 TOO8IY005 kw* }
MEMORANDUM 0F UNDERSTANDING BETWEEN THE UNITED STATES DEPARTMENT OF TRANSPORTATION AND THE UNITED STATES NUCLEAR REGULATORY COMMISSION FOR REGULATION OF SAFETY IN THE TRANSPORTATION OF RADI0 ACTIVE F%TERIALS s
e o
e
Abstract.
This agreement delineates the respective responsibilities of the Department of Transportation (DOT) and the Nuclear Regulatory Commission (NRC) for the regulation of safety in transportation of radioactive materials.
It supersedes the existing agreement executed on March 22, 1973, between the DOT and the Atomic Energy Commission.
Generally, the DOT is responsible for regulating safety in transportation of all hazardous materials, including radioactive materials, and the NRC is responsible for regulating safety in receipt, possession, use, and transfer of byproduct, source, and special nuclear materials.
The NRC reviews and approves or denies approval of package designs for fissile materials and for other radioactive materials (other than low specific activity materials) in quantities exceeding Type A limits, as defined in 10 CFR Part 71.
Agreement Between the DOT and the NRC.
The Department of Transportation (DOT), under the Transportation of Explosives Act (18 U.S.C. 831-835), the Dangerous Cargo Act (R.S. 4472, as amended, 46 U.S.C.170), Title VI and 902 (h) of the Federal Aviation Act of 1958 (49 U.S.C.1421-1430 and 1472(h)), the Department of Transportation Act (49 U.S.C.1655), and the Hazardous Materials Transportation Act (49 U.S.C.
1801-1812), is required to regulate safety in the transportation of hazardous
~
materials, including radioactive materials.
The Nuclear Regulatory Commission (NRC), under the Atomic Energy Act of 1954, as amended (42 U.S.C. Chapter 23), and Section 201 of the Energy Reorganization e
1
Act of 1974, as adended (42 U.S.C. 5841), is authorized to license and regulate
~
the receipt, possession, use, and transfer of " byproduct material, " source material," and "special nuclear material" (as defined in 42 U.S.C. 2014).
The NRC authority to license air shipment of plutonium is further governed by P.L. 94-79.
For the purpose of developing, establishing, and implementing consistent and comprehensive regulations and requirements for the safe transportation of radioactive materials, and avoiding duplication of effort, the 00T and the NRC agree, subject to their respective statutory authorities, as follows.
Terms used in this agreement are defined in 49 CFR Parts 100-199 and 10 CFR Part 71.
I.
Development of Safety Standards A.
The DOT (in consultation with the NRC) will develop safety standards for the classification of radioactive materials; for the design specifi-cations and performance requirements of packages for quantities of radio-active materials (other,than fissile materials) not exceeding Type A limits and for low specific activity (LSA) radioactive materials; for the external radiation fields, labeling, and marking of all radioactive materials packages and vehicles; for the mechanical conditions, construction requirements, and tie-down requirements of carrier tquipment; for the qualifications of carrier personnel; for the procedures for loading, unloading, handling, and storage in transit; for any special transport controls (excluding safeguards) necessary for radiation safety during 2
carriage; and'for all other safety requirements except those specified in the next paragraph.
B.
The NRC (in consultation with the DOT) will develop safety standards for design and performance of packages for fissile materials and for quantities of other radioactive materials (other than LSA materials) exceeding Type A limits in the following areas:
1.
Structural materials of fabrication; 2.
Closure devices; 3.
Structural integrity; 4.
Criticality control; 5.
Containment of radioactive material; 6.
Shielding; 7.
Generation of internal pressure; 8.
Internal contamination of packages; 9.
Protection against internal overheating; and 10.
Quality assurance of packaging design, fabrication, testing, maintenance, and use.
II.
Adoption of Safety Standards and Reculations A.
The DOT will adopt regulations imposing on shippers and carriers subject to its jurisdiction those standards developed by the DOT and the NRC pursuant to Section I of this Memorandum of Understanding and any additional requirements necessary to protect the public health and safety.
The DOT will require NRC approval of designs of packages for shipment of 3
fissile materials and other radioactive materials in quantities exceeding Type A limits (except LSA materials) by all persons subject to the juris-diction "of the 00T.
The DOT will issue complete and comprehensive Federal regulations for the packaging and transportation of all radioactive materials as a part of its overall body of Federal regulations (49 CFR Parts 100-199) for the packaging and transportation of all hazardous materials.
B.
The NRC will adopt packaging standards for fissile materials and for quantities of other radioactive materials (other than LSA materials) exceeding Type A limits and will adopt regulations imposing on its licensees-administrative, procedural, and technical requirements necessary to protect the public health and safety and to assure the co:nmon defense and security.
C.
The NRC will adopt procedures, standards, and criteria for approval of package designs and for approval of special transport controls proposed by the applicant for a given package design.
The NRC will require its licensees to comply with the 00T regulations when those persons are not otherwise subject to the DDT regulations.
III. Packace Review
~
A.
The DOT will submit to the NRC for review the following package designs:
G 4
1.
Specification containers.
Approval by the NRC of package designs for fissile materials and for radioactive materials (other than LSA materials) in quantities exceeding Type A limits will be obtained before publication of such designs in the DOT regulations.
2.
Packages with foreign certification.
Approval by the NRC will be obtained before revalidation of the foreign certificates required in the DOT regulations for. packages shipped between origins and destinations within the United States, except for import and export shipments.
Approval by the NRC is not required if a package is'used solely for export or import or if a package is authorized by the DDT regulations solely for transportation through or over-the United States between origins and destinations outside the United States.
The 00T has the responsibility for exercising discretion as to whether it requests NRC review of such packages.
3.
Any package for which NRC evaluation is warranted in DDT opinion.
s B.
The NRC will evaluate package designs for fissile materials and for other radioactive materials (other than LSA materials) in quantities.
exceeding Type A limits and will, if satisfactory,' issue approvals therefor (viz., a license, Certificate of Compliance, or other package approval) directly to the person requesting the approval.
5
IV.
Inspection and Enforcement A.
Each agency will conduct an inspection and enforcement program within its jurisdiction to assure compliance with its requirements.
The NRC will assist the DOT, as appropriate, in inspecting shippers of fissile materials and of other radioactive materials in quantities exceeding Type A limits.
B.
The DOT and the NRC will consult each other on the results of tneir respective inspections in the areas where the results are related to the other agency's requirements, and each will take enforcement action as it deems appropriate within the limits of its authority.
V.
Accidents and Incidents A.
The DOT will require of all carriers subject to its jurisdiction the notification and reporting to the DOT of accidents, incidents, and instances of actual or suspected leakage involving radioactive material packages if such an event occurs in transit and the DOT will promptly notify the NRC of such events.
s B.
The NRC will require of its licensees the notification and reporting to the NRC of accidents, incidents, and instances of actual or suspected leakage involving radioactive material packages if such an event occurs prior to delivery to a carrier for transport or after delivery to a 9
9 6
I receiver.
The NRC will encourage the Agreement States and the DOT will encourage the non-Agreement States to impose incident reporting requirements on shippers and receivers subject to the States' jurisdiction.
C.
In all accidents, incidents, and instances of actual or suspected leakage involving packages of radioactive material regulated by the NRC, the NRC will normally be the lead agency for investigating'the occurrence and preparing the report of the investigation.
The DOT may either partici-pate, as, appropriate, in the investigation with the NRC as the lead agency or conduct a separate investigation.
Subsequent to each investi-gation involving radioactive material regulated by the NRC, the NRC and the DOT will jointly define the scope of the enforcement actions to be taken by each agency to assure that shippers and carriers are subject to concurrent and equivalent enforcement actions but not unduly subject to
~
duplicate enforcement actions.
D.
This section V does not affect the authority of the National Transportation Safety Board, which is independent of the DDT and the NRC, to receive accident reports and to investigate transportation accidents.
IStates which have entered into an Agreement with the Atomic Energy Commission or the NRC pursuant to Section 274 of the Atomic Energy Act of 1954, as amended, under which the NRC has relinquished to such States the majority of its regulatory authority over source, byproduct and special nuclear material in quantities not sufficient to form a critical mass.
7
VI.
National Comoetent Author A.
The DOT will be the national competent authority with respect t a the administrative requirements set forth in the Regulations for the Safe Transport of Radioactive Materials of the International Atomic Energy Agency (IAEA).
In issuing certificates of competent authority for the United States under those regulations, the DOT will require for certain packages other than DDT specification containers an NRC approval in accordance with Section III. A. of this Memorandum of Understanding.
The NRC will provide to the national competent authority (DDT) technical support and advice pertaining to the transportation of radioactive materials.
B.
The DOT will act as the representative of'the United States to the IAEA and other international groups on matters pertaining to the admini-strative and safety regulatory aspects of transportation of radioactive materials.
The NRC will provide technical support and advice to the DOT in this capacity.
VII. Exchance of Information s
A.
Prior to issuance of any regulations by either the DOT or the NRC involving transportation of radioactive materials, each agency will advise and consult with the other to avoid possible-conflict in regulations and to assure that:
(1) the regulations will afford adequate protection of the health and safety of the public; (2) the effect of these regulations will not be inimical to the common defense and security of the United States; arid (3) the regulations are in the public interest.
e 8
B.
The DOT'and the NRC will exchange information, consult and assist each other within the areas of their saecial competence in the development and enfo~rcement of regulations and procedures.
Each agency will make available to the other, subject to security requirements and statutory provisions affecting the release of information, summaries of inspection records, investigations of serious accidents, and other matters relating to safety in the transportation of radioactive materials.
VIII.
Working Arranaements The NRC and the DOT will designate appropriate staff representatives' and will establish joint working arrangements from time to time for the pu'rpose of administering this Memorandum of Understanding.-
IX.
Effect A.
Nothing herein is intended to affect the statutory exemption of shipments of radi active materials made by or under the direction or o
supervision of the Department of Energy or the Departmert of Defense in accordance with the provisions,of 18 U.S.C. 832(c).
B.
This agreement shall take effect upon the signing by authorized representatives of the respective agencies, and shall supersede in its entirety the March 22, 1973, Memorandum of Understanding between the DOT and the Atomic Energy Commission.
9
C.
Nothing in this Memorandum of Understanding is intended to restrict the statutory authority of either the 00T.or the NRC.
Done at Washington, D.C., in triplicate, this 8 day of N-A 1979.
FOR THE UNITED STATES DEPARTMENT OF TRANSPORTATION
/wh!~
~
.es 0. PaTmer~, Administrator Research and Special Programs Administration Department of Transportation for Brock Adams, Secretary of Transportation FOR THE UNITED STATNS NUCLEAR REGULATOR COMMISSION 3
Joseph,3. Hendrie, Chairman, Nuclear Regulatory Commission 9
10
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16954 NOTICES
[4910 4 0]
able materials and eventual disposal of Iong Island to Connecticut, in order the rest. Brookhaven's practice has to avoid the City-DEPARTMENT OF TRANSPORTATION been to ship spent fuel six times over a On March 1,1977. AUI. affected by six. week period each year. In the past, i 175.111 as well as by.the Ha::nrdous Meierials Trensportation gureau both the fuel used by the Brookhaven Materials Transportation Act (HMTA.
NEW YORK CITY HEALTH COct reactors and the by. products have Title I of Pub. L.93-433), fUed an ap-moved extensively in interstate com-plication for an inconsistency ruling, incenslatency Runng; Hemordeus Meterials merce, subject to the Department's asking the Department of Transporta.
TransponeHen Act Hazardous Materials Regulations (49 tion for its opinion as to whether The following is an opinion of the CFR Parts 170-179).
I 175.111 is inconsistent with, and thus Materials Transportation Bureau For highway carriers of radioactive preempted by, the HMTA or regula-(MTB) concerning the question of materials, access to the mainland from tions issued thereunder, based on the whether i175.111 of the New York Long Island was, and still is, controlled City's interdiction of truck traffic in City Health Code is inconsistent with, by regulations of the New York and radioactive materials from AUI's facill-and thus preempted by, the Hazardous New Jersey Port Authority (Port Au.
ties on Long Island. New York.
Materials Transportation Act (Pub. L.
thority), the Triborough Bridge and through the city to destinations in 93-633) or regulations thereunder. Tunnel Authority (Triborough Au.
other States.
This opinion results from proceedings thority), as well as by the City itself.
The docket for this proceeding in-conducted under 49 CFR 107.201.211. The facilities in the Port area that cludes extensive pubIfc comment as Procedures for filing an administrative connect New York with New Jersey well as the transcript of a public hear-appeal may be found at 49 CFR are generally regulated by the Port ing held on November 10 and 11.1977, 107.211. except that the Director, Re-Authority. The Triborough Authority all of which is available for public in-search and Special Programs Director-controls the area's intrastate toll spection in the Dockets Section. Room ate, will act on any appeal instead of crossings, while the four lower Man-6500,2100 Second Street SW., Wash-the Director, MTB. An appeal must be hattan bridges across the East River ington. D.C. 20590.
\\
filed on or before May 19,1978.
from Brooklyn and Queens are operat-B. Department of Transportation ed by the city's Department of Trans-Hazardous Materials Regulations.
1NeoNstsrENc7 Rm.ING (IR-1)(Aran.
portation. Between the requirements This inquiry concerns requirements of 4,1978) of the Port and Triborough Authority, the HMTA and regulations issued Applicant! Associated Universities, a hazardous materirds highway carrier under the HMTA. The substantive Inc., Upton. Long Island, N.Y.11973.
must cross one of the, City bridges to transportation regulations issued Respondent! City of New York reach the mainland from Long Island. under the HMTA are codified at 49 (Bureau for Radiation Control. De.
Prior to enactment of 1.175.111, the CFR Parts 170-179 and are referenced City allowed radioactive materials car-as the Hazardous Materials Regula.
partment of Health).
Latos A//ected: Local: Nert York City riers to cross only the lower level of tions.
Health Code, i 175.111. as amended the 59th Street Bridge with a police A discussion of the DOT Hazardous through January 15, 1976, prohibiting escort that was generally required Materials Regulations is aided by a fa-traruportation of radioactive materials while the carrrer moved through the miliarity with the basic history of in or through the City.
city on one of a number of possible.those regulations. Federal regulations Federal! HMTA il 104,105. 49 CFR truck routes. Leaving Manhattan for concerning hazardous materials ship-Parts 170-173.177.
the mainland, under Port Authority ments by highway have existed since Mode Affected Highway, regulations, was possible only by cross-the first decade of this century under Ruldng: Section 175.111 of the New ing the George Washington Bridge the administration of the interstate York City Health Code, as amended into New Jersey. Although the route Comme:rce Commluton. In 1967 those through January 15, 1976, is not in-used by AUI's carriers before i175.111 safety functions were transferred to consistent with requirements of the became effective varied somewhat, the the Department of Transportation. On HMTA or with requirements in tegula. 59th Street Bridge and the George January 3,1975. the HMTA was en-tions tsaued to date thereunder.
Washington Bridge were necessary acted, and on January 3,1977, the Announcement of intent to com-points in the route necessitating ps.s-DOT Hnnrdous Matertals Regu2ations mence rulemaking to consider the sage through Manhattan (see map, were simultaneously cancelled under need for routing requirements under Appendix A).
18 U.S.C. 834 (for highway carriage) the IIMTA for highway carriage of ra-Section 175.111 became effective on and reissued under the HMTA (HM-dioactive materials.
January 15. 1976. after notice and 134, 41 FR 38175. September 9.1976),
hearing (Appendix B). It has the prac-for present purposes, essentiaDy un-I.aACKcRoUND tical effect of forbidding the transpor-changed On the same date, the pre-A. Chronology of the Inconsistency tation of most commercial shipments emption regulations, under which this Rufino application of Associated Uni. of radioactive materials in or through proceding has been conducted, became versities. Inc. Associated Universities, the city. On the same day, the Federal effective (HM-138, 41 FR 38167, Sep-Inc. (AUD is a corporation chartered Government asked the Federal Dis-tember 9.1976)..
by the New York State Board of Re.
trict Court for the Southern District Several observations may also be gents. AUI's Board of Trustees in.
of New York for declaratory and in-useful. First, under 18 U.S.C. 834, the cludes members from nine northeas. junctive relief, arguing that i175.111 Hanrtlous Materials Regulations ap-tern universities. Since 1947, AUI has is preempted under the Supremacy plied to interstate carriers and their operated Brookhaven National Labo. Clause and the Commerce Clause of shippers, but not to purely intrastate ratory at Upton, Long Irland, under a the United States Constitution, and by carriers and their shippers. This dis-prime contract with what is now the the Atomic Energy Act of 1954 and tinction remains valid at present, al-United States Department of Energy the regulations issued under that though the HMTA authorizes applica-(DOE). Two research reactors in use Act.(1) A preliminary injunction was tion of the regulations to transporta-at Brookhaven consume fuel consist. denied, and the case has not yet been tJon that affects interstate com-ing of enriched uranium and produce a argued on the merits. Shortly after merce-(2) Second, the history of the variety of other TPdim.ctive materials. the i175.111 effective date, several of Hnurdous Materials Regulations for Spent fuel from the reactors is stored AUI's shipments of radioactive materi-highway carriage has been one of an at Brookhaven until shipped to a re-als, otherwise subject to i 175.111, accommadation of Federal and State covery f acility for reclamation of valu-were carried by passenger ferry from interests that is pragmatic and that
- FEDERAL RfC11 Tit, VOL 43, NO. 77-THUR1 DAY, APRIL 20, M78 e
0
HOTICES 16955 recognizes, as have the courts, that - codified at 49 CFR 107.203.211 which -to be used in emergency s local 'nterest in highway safety is well consider prior court decisions regard. though they are clearly established and proper, and that a ing Federal preemption, provide a local exercise of police powers in sup.
means for the Department to inter-emergenc!es, since a waiver continues in effect so long as the State require-port of that interest is not to be ilght-pret,in specific fact situations, wheth-ment is effectively enforced and ly displaced 3J) Third. the scope of er a State or local requirement is in mlnlaterei It is difficult to see how a Federal preemption in air, rail and consistent with requirements of the water transportation is historically IniTA or the regulatione issued there-paragraph (b) walver could be of alg-greater than in hfghway transporta-under (which include 49 CFR Parts nificant.use in an emergency situation unless that walver gives the State re-tton. This document examines only 102,107 and 170-179). One of the pur-quirement a clean bill of health highway transportation. The effects of poses of the preemption regulations
{ 175.111 on the other modes of trans-portation are not considered.
Issued under the HMTA is to provide, the HMTA. If the waiver applies only Geners11y. the existing DOT Haz-in the field of transportation safety, a to the extent that a dual compliance ardous Materials Regulations address source of clarification of this Federal-problem exists, the possib!11ty of p highway transportation by prescribing State relationship as an alternative to emption under the second test w continue to hinder nemmy State litigation. Another purpose is to pro-action.
the packaging necessary for shipment vide a basis for a walver of preemption The effect of Section 112 depends of particular hazardous materials ("nonpreemption determination"),
(such as radioactive materials), pack. should that be necessary (49 CFR heavily on the word " requirement" as age marking for the identity of the 107.215.225).
well as on the word " inconsistent."
material contained therein, package The City has argued that'the word Preemption cannot occur without the labeling for the material's hazards, " inconsistent," as used in Section 112 existence of a Federal " requirement" preparation and use of shipping of the HMTA,is more restrictive than under the HMTA. which we construe to mean an obligation to act or to re-papers to show the identity, amount described by regulation at 49 CFR frain from action. An HMTA req and hazard of 'each rnaterial shipped.
and placarding of transport vehicles 107.209(c).(6) Under that description. ment may completely regulate a given upon which this proceeding is based, subject, or may represent an affirma.
for the hazards of the cargo. The regu- " inconsistency" describes lations employ a syntax that is prohib. wherein it is not possible to complysituations' tive finding that only limited regula.
Itcry in nature, such as "* *
- no with both Federal and State require-tion is desirable. In either event, to de-person may transport a hazardous ma.
menth, and situations wherein State termine whether preemption has oc-terial * *
- unless that material is han-curred under Section 112 of the died and transported in accordance requirements are an obstacle to the ac.
with this subchapter."(d) complishment and execution of the HMTA. It is necessary first to identify Federal law. The City asserts that "in-an HMTA requirement against which Most of the Hazardous Materials consistent" refers to situations de-an ident!Iled State or local require-Regulations concerning highway car.
riage were transferred over to the scribed only by the first test, citing ment can be evaluated for inconsisten.
cy-HMTA from Title 18, U.S.C. However. Jones v. Rc!h Packing Co., 430 U S.
519 (1977). However, an analysis of The importance of an adequate iden-the Federal Motor Carrier Safety Reg. Jones indicates that the case does not tification of an HMTA requirement in ulations have continued to rely in part evaluating a possibly inconsistent on Title 18.(5) Their application is not stand for the proposition that "incon-limited to hazardous materials carri-sistent" means only the dual comp 11-State or local law also follows from the language of Section 112(b). When ers, but Part 397 of the Federal Motor ance test.(7) Even if the City's view of. an HMTA requirement cannot be ade-the holding in that case is accurate, Carrier Safety Regulations, which there is little reason to believe that quately identified, a Walver of preemp-does concern the transportation of Congress had in mind only the first tion for a State requirement may not hazardous materials, was not reissued along with the Hazardous Materials test in Section 112 of the HMTA. Con-be possible, since the nrst waiver crite Regulations because it was anticipated gress intended that Section 112 be ca-rion in Section 112(b) may not be met that 49 CFR Part 177, which also deals pable of precluding both "a multipli:- because the level of safety established with highway carriage of hazardous ity of State and local regulations and by Federal requirements e mnnot be de.
the potential for varying as well as termined. Even if it is possible to grant materials, would be revised to incorpo-connicting regulations in the area of sibly preempted under a walver for State requirements osten-rate the pertinent requirements of hazardous materials transportation."
Part 397. Thus, before the HMTA was implemented, the routing instructions This purpose require preemptive re-Federal requirements, the value of in 49 CFR 397.9 and the DOT Hazard-sults much wider than a volding only such a walver would be minimal, since ous Materials Regulations for highway of those State laws whose effects are it would never be clear whether t waiver would successfully survive sub-carriage were parts of essentfally one either to drive persons into noncomp1l-sequent amendments to the require-regulatory scheme developed under 18 ance with Federal requirements, or to. ments of the Hazardous Materials penalize those persons that do U.S.C. 834. The present scheme, so far comply.(8)
Regulations- (10) The point of an ex.
as preemption goes, is bifurcated be-tween the IniTA and Title 18. For Another point supporting the DOT press statement of preemption such as reasons subsequentiv stated, this in-position on use of both tests to ascer-Section 112 is to clarify respective Fed-consistency ruling wti not attempt to tain the occurrence of preemption eral and State responsibilities. An ade-quate identification of preemptive interpret 49 CFR 397.9.
under Section 112 arises from the pur. Federal " requirements" is inherent in C.
Department of Transportation poses of Section 112(b). Under pars-that purpose.
Preemptio'n Procedures. This proceed-graph (b), preemption of a State re-ing has been conducted pursuant to 49 quirement is waived if the State dem-Once a Federal requirement under onstrates to the Secretary that its re-the HMTA has been identified, then CFR 107.203.211 and Section 112 of quirement meet two additional tests: the two tests for preemption stated at the InfTA (49 U.S.C.1811). Section the State requirement must provide a 49 C~'R 107.209(c) are empicyed to de-112 of the HMTA expressly preempts "any requirement, of a State or petiti.
- al of *r.fety at least equal to that terme s whether preemption occurs.
The first test concerning dual comp 11 provided by Federal requirements cal subdh-ision thereof, which is incon-under the HMTA, and must not ance is logically a subset of the second sistent with any requirement" of the unduly burden commerce. The statu-test, but it is stated separately because IBtTA or regulations issued under the tory history (S) indicates that para-it is a convenient and relatively easily authority of the HMTA. Procedures applied test. In fact, the inability of a
' graph (b) waivers were thought Illely. member of the public to comply both
' FEDERAL R101 STER, Vot. 43, NO. 77-THUR$ DAY, APRIL 20,1978 f,
G O
s
16956 HOTICES with Federal and State require:nents the HMTA on those persons who vio-apply, the proper tes:t is whether com-is a result of' conflict between two re.
late regulations issued under the puance with f 175.112 can trigger es-quirements. the Federal requirement HMTA by the Secretary. In either forcement action under the HMTA or in itself being an expUcit statement of case, requirements of this kind im.
vice-versa. UJ) Clear!F. { 175.111 does Congressional purpose carrying spect. posed on members of the public re-not require any action that could cota-fled penalties for noncompilance.
quire implementing regulations to ceivably result in a v'iolation of the The Federal requirements which exist since without implementing reg-DOT Hazardous Materials Regula,.
this proceeding must consider are to ulations the IniTA does not impose tions and the fact of compliance with be found in regulations issued by the obugations on members of the public. HMTA requirements cannot cause a Secretary of Tzansportation to imple-Such requirements as the HMTA im-violation of g 175.111.
ment the HMTA (see Part II of this poses that exist without implementing B. Seefion 1y1111 does not stand as document). Since the general purpose regulat!ons are requirements on the on obstacle to the accomplishment and of the IBITA is stated therein to be Secretary and consequently are not execution of retrulatforza presently fra q
the improven2ent of the Secretary's pertinent to this proceeding. (12) As a force under the H3fTet. Essentially fouir regulatory and enforcement authority result. It is in regulations issued under arguments are available to supportr.
fo protect the Nation against inherent the IBiTA that requirements must be AUI's assertion that i175.111 is incon-risks in the transportation of hazard-found upon which this proceeding's in-sistent with regulations issued under and the HMTA consists terpretation can be based.
the ImiTA.
ous materials' grants of discretionary primaruy of This view of HMTA preemption con.
Argument (D: The Enardous Mate-forms to Section 114 of the HMTA rials Regulations authorize shipment.
authority to the Secretary the
" achievement and execution" of the which directs that actions taken under of radioactive materials tnade in con-IBITA occurs essentially through reg-prior laws (such as 18 U.S.C. 834) con. formity with requirements therein. A, ulations issued by the Secretary. As a tinue to be valid while the DOT haz-complete ban that applies to most ra,-
consequence, an examination of a reg. ardous materials regulatory program dioactive materials shipped by inter-ulatory requirement issued under the is brought into conformity with the state carrier in compliance with those-IBITA must rely heavily on the regu. IBiTA. Imposition of preemption-regulations frustrates that authoriza-latory objectives intended by issuance backed requirements on shippers and tion.
of the regulation in question. If a carriers as an immedlate result of en-Thls argument fails to identify ade-State and a Federal regulation can actment of the IBITA would disrupt quately a requirement. in the Hazard-both be compiled with, the second test this phased transition from regulation ous Materials Regulatfons from which.
will require an examination of the under older statutes to regulation inconsistency may be deduced. To say purposes of the Federal regulation in under the IBITA. which generally that Il'J5.111 addresses radioactive the context of the body of regulations leaves the imposition of requirements materials that are also regulated in which it appears, as well as in the to Secretarial discretion.
under the HMTA is not sufficient to context of the HMTA itself.
In view of this It is clear that establish inconsistency, since inconsis-l 175.111 is not inconsistent with any tency is keyed to the existence of "re-It is our view that any preemption requirement contained in the text of quirements." Present requirements that may occur under the IBITA (at the HMTA.
least to the extent that the Federalin, under the HMTA concerning radioac-tive materials carriage by highway do terest in issue concerns an imposition In. SECT!oN l'f 5.111 1s NoT INCoNSIS-not circumscribe radinactive materials of obligations on members of the TENT WITH REGUI.ATIoNs PRESENT1.T IN so as tO control routes of movement.
public) is described in Section 11..
roacE UNtER THE InrrA which is the basic thrust of t" i the I eg at The DOT Hazardous Materials I c-
$ 175.111.Ud),
Even assuming an issued under the HMTA. To view Con-ulations implement the IniTA by re-HMTA regulailons concerning radioac-gress use of the word " inconsistent" as scribing as obligations for sh!ppers, tive materials may be treated as a limiting Section 112 pree:nption to carriers, and other persons, the neces. single requirement, those regulations that occuring under the dual compll-sary conditions for highway transpor-do not obligste any carrier to avoid ance test is to restrict that section to tation of hazardous materials. Comp 11-certain locations.
an extremely limited function not a ance with the Hazardous Materials Argument (2X Section 175.111 is in-result sanctioned either by the lan-Regulations !s necessar) for transpor - consistent, with HMTA regulations guage of the section or by the legtsla-tation of hazardous materials by inter-concerning radioactive materials trans-tive history, state highway carrier but does not re-portation Those reguIntions generally lieve a shipper or highway carrier of preempt State and local regulations on 11.sECTIoN 8 75.1111s NoT rNCoNSIsTENT lts obligation to Comply with State and that subject, in support of the regula-wnM REQUIREMENTS CONTAINED IN THE local laws. State and local regulatory tory scheme developed under the TEXT or THE EMTA agencies obviously have and exercise Atomic Energy Act of 1954.
transportation safety responsibilities.
The compatibility between the DOT Express preemption under Section especially as regards traHic control Hazardous Materials Regulations and 112 of the HMTA occurs upon the ex-and immediate reaction to emergency those under the Atomic Energy Act is; istence of mutually inconsistent situations. Conditions not addressed intentional, r-flecting a division of IBITA and State or local require-under the HMTA may be properly reg-overlapping transportstion authority-ments. (11 ) Such requirements, or ob-ulated by State and local agencies between the Atomic Energy Act and:
IIsati 8 t
i I within bounds set by other Federal ~ transportation statutes such as 18' ac gn m
Mt tM laws.
U.S.C. 834. which is addressed in a.
IBITA and in regulations issued under A. It is possible io comply teffA both Memorandum' of Understanding-the HMTA.
9 175.111 and the DOT Aczardous me.
(MOU)US) between DOT and the old The word " requirement" as used in tericis regtdations.While it is true that _ Atomic Energy Commfalon. One ex-Section 112 will most frequently con-compliance with i175.111 logically re-ample of reliance on the Atomic cern requirements imposed by ihe Sec-sults la the absence of radioactive ma-Energy Act which occurs frequently in retary by regulation. on shippers car-terials shipments in New York City DOT regulations is reference to the riers, container manufacturers and and the consequent absence of radio-Nuclear Regulatory Commlufon re-others involved in the transportation active materials transportation acthi-garding qualification of Type B pack-of hazardous materials; otherwise it ties within the City to which the Haz-agings. However the basic difficulty will concern requirements imposed by ardous Materials Regulations can with this argument is that the Atemic FEDERAL RfCl$TER. VOL 43, NO. Tr-THUR$ DAY, APRIL 20, 1973 O
HOTICES 16957 Energy Act cannot cau.se preemption diation hazards they pose and can under the IGITA.
CertaWy the regulatory scheme de-without question be shipped safely in City's " ban" considered in terms of its veloped under the Atom]c Energy Act the normal course of transportation. purposes does not differ analytically was known and acecmmodated by the It would be extremely hard to support from a routing restriction. To assert MOU and the regulations themselves. the ar.sertion that radioactive mater 1 the contrary is to assert that there is but neither the IU.fTA.(16) the Ha?,-
alt even materials with very high radj. not any local furisdjetton whose char-ardous Matertab Regulations rior the nU nn levels, cannot be moved safety acteristics would justify its total avoid.
MOU reflect any special status for ra-un;:er any circumstances, given the ex.
ance by hazardous materials highway djoactive materials. The DOT regult-cellent twenty five' year record of their urriers. Such an assumption is implie-it in 49 CFR 397 9. which authorizes tions in fact treat radjoactive materi-commercial transportation. The C!ty's carriage through populous area.s if als in essentially the same fashion as assertion. however, !s that i175.111 is there is not any other practicable al-other hazardous materials, except for necessary because of the population ternative highway route. However, no the distinct techniques necessary to density (J T) of the City, not because deal with radjation hazards instead of the characteristics of radjoactive ma.
such assumption appears in any of the regulations issued under the HMTA, chulcal or biological hazards. The terials render thern absolutely unsult.
ed since those palticular regulations do MOU recognizes that the dJvision of to tran50ertation. Consequently, not nOw include any routing require-f 175.111 respcnsibilities for regulating the de,es not frustrate the pur. menta. even though the HMTA autho-transportation of radioactive matert-poses of ident!'! cation under the rizes the imposition of such require-als, as agreed by the signatory agen-HMTA of materials forbidden from ments.
transportation.
cles, is " subject to thelt respective Argument (4) Seeffon 175.111 is in.
- n. m sta statutory authorttles *'*"
The agreernent was entered at a time when constsfent WifA 49 CFR 1974. The There is not any identifiable require-DOT regulatlons were based City has urged that Section 175.111 on 18 ment in the text.of the HMTA or in U.S C. 834. but reissuance of DOT reg-supports and adsances.the purposes of regulations issued thereunder that ulations under the HMTA has not af*
49 CFR 397.9. This provision of the fected the agreement or the regula* Federal Motor Carrier Safety Regula. provides a basis for a finding of incon-tiens themselves insofar as radioactive tions is a requirement b!nding certain sistency with 6175.111.
Section 175.111 is most analogous to materials are concerned The DOT highway carriers of hazardous matert.
regulatlons treat radjonctive materials als to avoid densely populated areas a routing requirement in terms of its as one of a number of classes of mate-unless there is not any other practica. purposes and effects. The lack of a with recognized transportation -ble route. " practicable" being defined routing requirement under the HMTA, rials hazards. The fact that radloactive ma-therein to exclude consideration of the which expressly authorizes such a re-terials, rather than explosives, flam-carrier's operating convenience. The quirement, means that existing regula-mables, or some other class of hazard-City urges that water carriage of AUI tions issued under the HMTA do not ous materials, are the subject of cer.
shipments is a " practicable" a,1terna. occasion inconsistency with Section Liv.
175.111. Although 49 CFR 397.9 ls a tain DOT regulations does not carry with it special or distinctive preemp-Tele City's position routing requirement. it is not based on essentially is that its dense population justifies the the HMTA and a find 2ng regarding in-Argument (3t Section 175.111, by expense and inconvenience of moving consistency under the HMTA cannot apply to that provision of the Motor forbidding transportation of radioac-radioactive m".terials by non highway Carrier Safety Regulations.
tive materials. is inconsistent with modes along routes outside the City
- Even considering the HMTA Hazard-DOT regulations which also forbid because the consequences of a major ous Mate. rials Regulations accident are too extreme to be toler-those regulations do not relieve carri-categ ri mate als but hc do sble, wey remote the probability.
e e
tio ot for d e movement of radiore-
)
p M he Port Authodty a.nd The fact that i 175.111 and the Haz.
An examination of the Hazardous the Tricoroagh Authority's restric-d Materials Table (49 CFR.172.101) re.
tions on use o! the bridges wihich p to os (ve weals that seme materials are intrinsi, access the mainland from leng Island. [ince ribIgd c
e ial U
cally so dangerous that their transpor. which before enactment of i175.111 radios e
a ar tation is coropletely forbidden. This hr.d the effect of funnelling traffic in dressed in the Hazardous Materials argument concludes that because ra.
radioactive materials through Man-Regulations dioactive materials have been thor.
as merely one of a hattan.
number of classes of bmdous materi-oughly considered at 49 CFR 173.389 An opinion of the Department of als. Because i 175.111 is not concerned et seq. and are not forbiden from Transportation General Counsel
- with whether it is possible under any transportation, the city may not issued in 1976,is attached as Appendix conditions to carry radioactive mated.
fort 'd their transportation. In essence, C. That cpinion interprets 49 CFR als safely by highway. It does not con-the
- v's choice of a forbidden matert.
397.9 as not requiring a highway carr!* flict with identification under the Haz.
al t
'ld to be inconsistent with the er to consider transshipment by a non. ardous Materials Regulations of those forb62aen materials identtfled under the HMTA.
highway mode. The Federal Motor materials for which transportation is Materials forbidden from transpor. Carrier Safety Regulations have not entirely forbidden in U.S. commeret tation under the HMTA include, for been issued under the HMTA.(IS) and in considering the above, the MTB consequently any preemptive effects sixty days, an advance notic example, unstable explosives and that 49 CFR 397.9 may have do not loaded firearms. In most cases, trans-portation is forbidden because the ma-arise under the HMTA. Should that posed rulemaking, to afd in a decision-provision have the effect of preempt-as to whether some form of Federal terial in question behaves in an unpre-ing i 175111. the HMTA does not pro ' routing requirement is needed.
dictable manner. Unstable explosives vide any basis for a walver of preen 1p-In spite of the conclusion reached may detonate and loaded firearms that $ 175.111 is not presently pre-tion. For these reasons this discussion may discharge regardless of any prac.
tical packagmg or handling precau-will attempt no further elaboration of empted by the HM A'A. there are sever-49 CFR 397.9 beyond that contained in *which concern the Materials T tions taken by shipper or carrier.
Appendix C.
Radioactive materials, by compar!.
ans-son, are notably predictable in the ra-However, the City's re11ance on 49 portation Bureau.
CFR 397.9 reflects the fact that the (1) A basic concern is the inclusion of mimmt all radioactive materials FIDERAL ttCl5 Tit, VOL 43, NO. yT-THUR$ DAY, APRIL20, 1978 4l
169',8 NOTICES shipped commercially within a single oriented. Ieng Island Lighting Compa. tory emnstruction. Welch v. # cia nampaAire, category in-) 175.111. All are subjected ny (LILCO) expects, poss!bly within soe U.s. 79. 85 (1939% wourer v. New namp-sMre. 248 U.S. 79. 85 41939r Maurer v. nom.
thereby to a near total prohibition in twelve years, to be operattu three re-transportation. Justification for the actors at two sites on Long Island for M[8[3n p3f31 "A
4 2 1 prol'ibition telles on the remote possi. the commercial production of electric o to rFR 171.2%
bility of a substantial release of high pcwer. While Brookhaven usually
- 5. 40 CPR Parts 390-337. The Federal specific activity radioactive materials. makes s!X sh!Ptnents of reactor wastes Motor Carrier Safety Regulatlons sencrany Radioacttve materials like corrosives each year, the kind of activities cite I 20L4 of the Interstate Commerce Act as and other claases of hazardous matert. LILCO is undertaking will result in a amended (49 UE.C. 304) ma authority. Part ais, range over a wide spectrum of very substantial increase in such ship-397, whJch concerns parting and drtrtng rules for the transportauou of hazardous ha:Ard lesels, and the Federal regula. ments. It is also clear that despite a re.
tory scheme makes d4tinctions be.
duction in the National effort to devel. materials also cites 1,8 U.S.C. as4 upon w hic a
en
=
us tween levels of activity. The Federal op a plutonium. based fission technol.
,3 y,
sa scherne also distinguishes between the ogy, the United States will increasing-untu reissued under the HMTA. The Feder.
physical and chemical forms in which ly depend on nuclear fission for a sub-al Motor Carrter Safety Reguhuona (except a given material may be shipped. stantial part of its energy needs. (20) H 397.3 and 397.9) have since been incorpo-which bears on the likelihood of the The problem of establishing a sultable rated by reference in regulations under the material being easily dispersed. These permanent radioactive waste disposal HMTA IIM-157. 43 FR 4558. February 6.
distinctions find no place in i 175.111. site may be solved as early as 1988.
1978.
- 6. Ietter from RC. Assistant Corpers-(2) Any sitempt r.t evading the (21) which may also result in an in.
tion Counsel to Office of Hazardous Materi.
i 175.111 prohibition will probably in.
crease in the shiprnent of wastes since cr 2 1977 volve transportation in unplacarded the existence of a permanent disposal a(Ope hd M@
,x,
,e o
motor vehicles. in violation of DOT re.
site will facilitate the construction of noted that many words have been used to quirernents (evidence of noncernpil. new reactors.
desertbe the relationship between State and ance with i 175.111 has not been raised The legal validity of i175.111 is still Federal inw that results in statutory pre-in this proceeding).
subject to serious doubt. This opinion emption. ~ inconsistent
- being one of them.
(3) Cection 175.111 is caus!ng the dl.
dealt only with highway carriage, as Rines v. Davidoef tz. 312 U.S. 52,67 (1941).
version of radloactive materials ship-raised by AUI. Air, rail and water car. The Court itself seems to have used the ments to avoid the Cty. Brookhaven riage are more thoroughly imbued word to refer to more than Just the dual compliance test. Jones, at 526. In Jones, the has shipped by truck using a route in.
with a Federal interest and this opin-cluding a journey by ps.ssertger ferry lon does not apply to transportation 1]
cons @ ajtutory use
,g to Connecticut. Sorne of the truck by those modes. New York Cty and that term to address the rehuowp be-shjpulents intended for air carriage any other jurisdictions which have, or tween an express preemption provision of from Kennedy International Airport are conternplating similar ordinances, the Fair Pactagins and Labeling Act and a are being diverted to other airports. should also bear in mind the fact that California requirement concerning display One effect of this diversion of traffic I 175.111 may be preempted by LLe of weight of contents on packages of flour.
from customary commercial routes Commere* Cause of the United Staat. The FPLA preemption provision only cov.
ered one section cf the FPLA rather than IF be the creation of situations un.
Constitution. or by the Atom!c Energy the entire Act (un111e 1112 of the IDgTA).
to imon to the places in which they Act of 1954 and regulations issued 7,ua occur, with the result that persons in.
thereunder. In addition, we think it g
who after c n-vol ed in the transportation network, well established that the text of 49 ciuding that the narrower terms of the ex.
CFR 397.9, contrary to the Cty's as*
surnption, does not require a hlghway.presa preemptico provision did not causepreemptaon. The C and emergency response personnel.
rnay be faced with unf amMlar ciru ;
stances, or with numbers of shjpmen s carder to ship by water, for example, conclusion by stating that the California re-that exceed their established handilty if transportation through the Cty is cuirement was not inconsistent with the abilities. A shif of traffic ha.s obvious the only practicable highway route. FPLA express preemption provision. Howev-implications for both Federal and Finally, whatever the ultimate legal ". that pronsion was limited, rather than the f range preemption State enfortement programs.
fa'e of f 175.111. such provisions may {gtr (4) It may not be prudent for safety face a necessary future harmonistion
- 8. 8. Rept. 93-1192. 934 Ceng 2d Sess.,
decislons of the far reaching effects of with rulernaking that results from the 37-38(1974).
I175.s11 to be made solely by local inquiry MTB intends to undertake.
g go, governments. It is unfair, and possibly Issued in Washington, D.C., on April
- 10. Although the InfTA. In 9112(b). pro-vides that a walver of preemption continues not conducive to overall safety, to ask / 1978.
e e a M9 remm or other locations to accept and handle L. D. S&TMAN which a jurisdiction such as New York Maferials Transporta! ton Buredu.
Nt N under s"e E after b P.dditional commerce in materials AClin9 DITcf r City decides it will not accept. As is m--
date the waiver owurs may cause preemp-true in other areas of State and local tion of the local requirement. The waiver activity, neighborirg jurisdictions may
- 1. Unite.f States v. C4tv c/ New York, No.
cannot apply prospectively to regulatory re-find it necessary to reciprocate. A pro. 76 Civ. 373 (8,D.N.Y filed January 15, quirements not in existence at the tune it is 1976).
granted.
literation of local bans like f 175.111
- 2. HMTA. 3103(1). Authority for regulat-
- 11. nis dbcussion should not be confused dealing with hazardous materials car-ing intrastate commerce is discussed tn the with questions involving common carrier ob-riage sill result in a disrupted national preamble to the fLnal rule in Docket HM-11gations and tariff restrictions. Sudh ques.
transportation network that is at best 134 (41 FR 38174 et seq., September 9 Lions do not involve HMTA preemption of confusing. at worst chaotic, and nei.
1978).
State or local transportation requirements.
ther condition advances transporta-
- 3. This view ta articulated in cases, such as
- 12. See HMTA. I105(c) for an example.
tion safety.
South Carouna v. Barmcca srothers. Inc The general purpose of the HMTA as stated On the other hand, in the absence of 303 US.177 (1938), which concern appuca-in i102 is "to improve the regulatory and I 175.111 the number of shipments of tion of the commerce Clause to State legis-enforcesneat authorny of the Secretary of lation in circumstances that do not tnvolve Transportauon to protect the Nation ade.
high level radioactive materials quately against the riska to life and proper-through the C!ty is likely to increase e nguasi nal seu n. F r a recent similar example. see Raymond Motor Transporta-ty which are inherent in the transportauon substantially. Drookhaven is a Tel&*
f ton. Ine v. Rice. 46 LW 4109 (February 31.
of hasardous materials in commerce." The tively small shipper of ratiloactive ma-1978). This view has abo been employed by exercise of most of that authority is discre-terials, since its activities are research the Supreme Court as a principle of statu-tionary rather than mandatory.
FEDERAL REGl5 tit. VOL 43. NO. yy-TNUR$ DAY. APtit 20. 1975
=
NOTICES 16959
- 13. See FlorW Lime and Aeocado Groto.
Section 108 of the ITMTA does directly
- 19. See n. 5. supra. -
en. Inc. e. Pa rd, 313 UR.132.142 43 (1963).
concern the shipment of radioactive materl-
- 14. The Secretary of Transportation 1s als by passenger <trrytng a.1rcraft, but the
- 20. As much as 20 percent of the electric.
specifica11) authortzed to Lssue regulations section has no particular relevance to the ity supply of the United States may be fis-governing routing la consultation and coo.
propos! tion that regulations under the ston-generated by 1985. Executive Office of p* ration with the Interstate Cor.untree IUdTA do not reflect an intention to pre-the President. The National Energy Pian 71 Commission. HMTA, i 105.
emot State and local requirements to the (April 29,1977).
15.
Mernorandum of Understanding extent they might be preempted by action
under the Atomic Energy Act of 1954.
of Nuclear Waste ymeernent 12 (Febru-AEC for Regulation of Safety in the Trans.
pr.atation of Radioactive Materials Under
- 17. IAtter from N.Y.C. Assistant Corpora.
the Jurtsdiction of the DOT and the AEC*
tion Counsel n. 6. suprE Testimony of Dr.
1eonard Solon. Director, Bureau for Radi-APftHDiC13 e
t e separa no h to atl n Control. Public Hearing ca the Trans*
Nu6 tear Regulatory Commission and the p rtat n i Radioactive Materials. Neem
- A. Map showing route used by AUI's carri-Energy Research and Development Admin-ber 10-11,1977, Mpt at 20 et seq.
er prior to enactznent of Section 175.111.
B. Text of Section 115.111.
latration, and the latter's trxorporation into
- 18. IAtter from N.Y.C. Assistant Corpora.
C. DOT General Counsel's opinion inter.
DOE.
tion Counsel, n. 6 aupra.
preting 19 CFR 397.9.
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em 9
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FIDERAL ttGl5TER, vot. 43, NO. 77-THUG 5 DAY, AP1 tit 20,1978
't
\\
9
-4
16960 NOTirr.s APPENDIX A
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4,
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m 2
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Q
. ~
.. - e -,
o e
m.
Q
.. ~. - -
g
~.-
Geo. k'assington Bridge
. -.. ~ ~ - -
?!ajor Deegan Fxp'v e
- ?
3d Ave. Bridge E
l e.
f 8 Triboroug})
i g
f Bridae l
t i
s N
1.incoln Tunnel
'Oucenn
'/,59th Street Br.
Hidto'n Tunnel Queens Holland Tunnel I.ong Island Exp 'y -
Willia sburg B r.,
Manhattan Br.
Brooklyn Br.
Brooklyn-Batterv Tunnel Upper New York Bay Brooklvn I
h
.Tanaica Bay Verrazanc Narrows Bridge I
\\
4 FEDERAL REGl$fER, VOL. 43, NO. T7-THUR$D4Y, AF1!L 20.1778 i
ee 8
NOT1 cts 16361 Arrrwntz D code, as repealed and re nacted by resotu.
'nse f.asues raised by your letter concern HzAli SE371CIs AcertsrnAnoft tion adopted on the fif teenth day of Novem.
ber, nineteen hundred seventy three and the valid!!F of three assertions.
" " "T O' ""'
fued with the city c!crk ou the twentieth 1..yhc AJacrfton lAal 49 C/R I 3S7.3 is in-Rt.sottrrions A7tts day of November, nineteen hundred seven. tended to reestre compitance wit 4 loccJ re.
ty three, be and the same hertby is amend. strictions (Ang are fantamount to a ban on (Ae transportation of rodtocettoe materials IPublished in 'The C!ty Itecord. Tuesday' ed. to be printed together with erplanatory January 20.1976.1 notes, to read as follows:
(Arouch or in f.he toent furtsdictics (c) This section shan not apply to rad!.
In adopting 5 397.3 on March 31,1971. the At a meeting of the Board of Health of allon sources shjpped by or for the UJ1.
Director of FHWA's Bureau of Motor Carrt.
the Department of Hea;th held January !$,
Government for military or national securt. er Safety (BMCS) made the folloiring state-1976, the following rnolution was adop'ed; ment:
ty purposes or which are related to natjonal hsoked. That section 175.111 of the New I397.3 merely applies to eehicles Tora City Health Code, as repealed and defense. Notring herein shall be construed transporting hazardous Insterials, a rule as requiring the disclosure of any defense reenacted by resolution adopted on the fif.
information or restricted dass as defined in which has been in force for interstate carrt.
teenth day of November, nineteen hundred ers generally for man? years (see 49 CFR seventy three and fued with the city clerk tre Atomic Energy Act of 1954 and the 1392.3). No undue burdens appear to have Energy Reorgan!zation Act of 1974 as on the twenueth day of November, nineteen amended.
resulted from requiring those same carriers hundred seventy three, be and the same to obey local and State lawis. The culy nov.
hereby is amended by adding a new subsec. Norts.-Bubsection (c) was amended by res. elty in restating the rule in Part 3M la that tion t D thereto, to follow submetton (k) oluuon adopted on January 15.1976, to con-it will now apply to intrastate snovements of thereof, to be printed together with es.
I harardous matertals by interstate carriers.
planatory notra. *.o read sa foUows-by t re on The ciarm that this actico will impose new (1L Notethstanding the foregoing prori.
&s Mtkn That this redutbn and unbearable obligations appears to be an stons of this section. a Certificate of Emer. shan take effect immediately*
perstatement. M N M Masch 13. W.
gency Transport issued by the Commission.
A I#D' '*EI*
'ne full meaning of the staternent that "
er or his designated representative shall be PAT 1tICIA J. CARUSO.
- * * $ 39"f.3 merely applies to vehicles trans.
required for each shiptnent, to be transport.
ACff378tCTEf4f7*
porting hanrdous materials. a rule which ed through the etty or brought into the city' has been in force * *
- tor msnv years (see of any of the following materials:
Arrm C 49 CFR l 392.2)" becomes clear when the re.
(1) Plutonium isotopes in any quantity and form exceeding two grams or 20 curtes.
orrtes or ntr srcRrraRY or raJutsPOararloff 11Lionahlp between Parts 392 and 397 is un.
derstood. These Parts both contain drtVtng whichever ta less; (2) Uranium enriched In the isotope U-235 wasittscroN. D.C sosee and parking rules appl!cabler to motor carrt.
exceeding 25 atomic percent of the total Pma L Brnass. Ese*
ers (common, contract, and prtente) who uranium cvantent in quantitles where the U-G nerc1 Cbun,cf engage in interstate or foreLu commerce.
235 content exceeds one kilogram; N.uclear Regidatory Commission The rules in Psit 392 are of a general Any of the actinides (Le., elements g asMngton, D.C nature and are to be complied with by (3) with atomic number 89 or greater) the activ.
motor carriers without regard to the proper.
MAY 12.1978*
ty being transported. The rules in Part 397 Ity of which exceeds 20 curtes; Dr.am MR. BrRACss: This !s in response to are additional drtvtes and parting rules con.
(4) Spent reactor fuel elements or mixed your letter of March 16. 1976 requesting sgdereg oecessary go enau7e tge aage tr fission products associated with such spent the Department of Transportation s (DOT)portatlon of hazardous materials by motor fuel elements the activity of which exceeds interpretation of 49 CFR ll397.3 and 397.9 20 curtes; or hn heemm two Federal Highway Administration betng transported a motor carrter must (5) Any quantity of radioactive material specified as a "Large Quantity" by the Nu.
(FIIWA) regulations dealing with the safe comply with the driving and parking rules clear Regulatcry Commluton in 10 CFR transportation of hazardous materials in of both Part 392 and Part 397.
Part '!1. entitled " Packaging of Radioactive commerce. The regulations at issue are con.
Sectico 392.3. referred to in the above Material for Transport.a tained in 49 CFR Part 397-Transportation statement, has ken reNrnaw l 392.3
}
of Hazardous Materials; Drtetng and Park. and is, except fo* minor language differ.
Norts -Subsection (1) was added by resolu-ing Rules, and read as follows:
ences identical ta 49 CFR $ 397.3. The sub-t tion adopted on January 15.1976, to require state and local latts, ordinances, stance of present 9 392.2 has been in exis.
9 397.3 P
the approval of the Commissioner or his and regulations.
tence (under various other section designa.
designated r=presentative through the issu.
Every motor vehicle contaNnt hazardous tions) since 1952. Whatever the set.tlon des.
ance of a Certificate of Emergency Trans. materials must be driven and parted in com.
port for the transport or the bringing into pliance with the laws, ordinnnees. and regu. ignation.11 has a2 rays been embodaed under s
a part entitled " Driving of Motor Vehicles" this city of specified large quantitles of p1U 1stions of the juttsdletion in which it ta having the same appucab111t?- as prrw.nt tonium, enrtebes. uranium and other actin. being operated, unless they are at variance Part 392.
ides and spent reactor fuel elements which with specific regulations of the Department Although I397.3 was not adopted until a srett hazard to pubtle of Transportation which are applicable to 1971, there did exist for many years prior to would present health in this densely and h!ghly populated the operation of that vehicle and which 1971 other regulations (Part 397 and its pre.,
city. It is Intended that such Certificate will impose a more stringent obligation or re.
i be issued for the most compellinf resuk3ns straint, decessor Part 1973 relating to the driving c
1 397.9 Routes, and parking of Inotor veh!cles which trans.
invohing urgent public policy or national (a) Unless there is no practicable alterna. port ha=ardous materials. *1te sawon of security interests transcendine pubile health and safety concerns and that eco-tive. a motor vehicle wh!ch coctains hazard. I 397.3 was inade, along with other changes 4
nomic consideration alone will not be ac.
ous materials must be operated over routes to Part 31F7. In an effort further to reduce
' O' ceptab;e as Justification for the Lasuance of which do not go through or near heavily the level of riats involved in the mcvement such Certificate. Such Certtileates are also populated areas, places where crowds are as.
of hazardous materials. By adopting $ 397.3 intended to be issued for hectocurie and kl.
sembled, tunnels, narrow streets, or alleya. the BMCS wave specific recognition, as the locurte cobalt-60 and ce4tum 137 teletherapy Operating convenience is not a basis for de.
ICC had under i 392.2 with regard to gener.
sources employed in therapeutic radiology termtntng whether it is practicable to oper. al driving rules, to the limits of Federal Oovernment authority and capab!Ilty to es.
and biomedical research or educational pur.
ate a motor vehicle in accordance with this paragraph.
tablish rules governing all phases of the p
poses and for medical devices designed for driving and parting operations of motor ve-E individual human applicatlon (e.g., cardiac (b) Before a motor carrier requires or per.
mits a motor vehicle containing Class A or hicles e-mW b-dous materials. As pacemakers) containing plutonium 238, pro-methium 147 or other radjonctive material. Class B explosives to be operated. he must stated by the Director. BMCS, on March 13 prepare a written plan of a route that com-1971. "The only novelty 2n restating 8.he rule
- Ihis subsection la not intended to apply to small quantitles of spedited radiometive ma.
piles with the rules in paragraph (a) of this (1392.21 in Part 397 la that it will now apply 3
>g tertals intended for therapeutic radiology section for that vehicle and must furnish a to intrastate movementa of hazardous mate.
6 and biomedical research or educational pur. copy of the written plan to the drtTer. How.
rials by interstate carriers."
Y poses.
ever, the driver may prepare the written Because Parts 392 and 397 both contain plan as agent for the motor carrier when parking and driving rules and since $ 397.31s
' j*
Resolved further. That subsection (c) of the driver begins his trfp at a location other simply a restaternent of $ 392 2. differing section 175.111 of the New York City Health than the carrier's terminal.
only in that it has a limited application to motor carr$ers transporting hazardous mm.
t-g HDERAL 9EGt!TfR, YOL 43, No. TT-THttt3 DAY, APit!L 20, 1978
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16$62 HOTICM might be called the mechantcz of driving Bec.
terials, the scope of compUance with State 2.03 Reckless driving forbidden.
and handling of vehicles.
2.061 Spe"d must be resscnable and pru-In s6 more steent interpretation issued on and local laws, ordinances, and regujations that can be re<2utred under the language of October 23.1975 (40 FTt 50671), t.he FHWA's dent.
5 397.3 cannot be broader than that required 2.062 legaj limits must be observed.
Dureau of Motor Carrier Safety saJd the fol.
2.063 Reduced speed.s during periods,af lowing with terpect to the scope of f 392.2 under i 392.2. An b1storical view of I 392.2 is (as before stated.1192.3 is the predecessor therefore necessary.
darkneas.
The present form of I 392.2 was first seen 2.065 Traffic s!rns, signals, markings or de-of I 392.2%
(with citnor language dLfferenceo as part of vices must be obeyed.
Since this rule La contained in Part 392 a major revision to the Interstate Com.
2.11 Keep to rtsht.
and not among the " General" regulat.lons in merte Cocunission's Motor Carrier Salety 2.121 Mainemmr adequate space between Part 390, the Bureau tales the position that Regulatfora (49 CFR Parts 190-197) pub.
It was intended to reiste to State and local vehicles.
2.122 Pollowing too closely.
driving laws s.nd regulations roughly comps-ushed on May 15.1952 (17 FR 4422L8 The predecessor of I392.2 was contained in Part 2.133 No gear changes on crossings (pre-rahle to those in Part 392, including safe 192-Drtung of Motor Vehicles:
cautions at railroad grade crnae).
Ioading, but not to include State laws and i 192.3 Drtetng rules to be obeyed.
2.134 All drivers must ascertain that the regulations relating to other matters.
coum ts car (precau nsat e d Because O mt 1392.2 canst M read grade crossings).
Inore broadly than to require compliance cor ce nt a
o d re ulations of the furtr, diction in which it La 2.143 All drivers must ascerthin that the with nrate and local laws, or."=~ and na relating to the "mecMes of D **" ""
- F*8' driving and handling of vehicles of the a.nces.
d regula na are e
ce h
bridgest specific regulations of this Commlulon 2.15 Other users of highways must not be type esmtained in Part 392, a.nd since the sh ch lmpose a greater affirmative obligs-endangered.
scope of compuance with Stage stad locaJ tion or restraint.
2.161 Vehicle must be in proper podtion laws, ordmarm-and regutartana that can be required under the language of f 397J In the IC., Report (54 MCC 337) setting for making turns.
forth the general basis and purpose of the 2.162 Extrerne caution to be exercised in cannot be broader than that required under Way 15.1952 amen %nents to their Motor making turns.
I 392.2. I must conclude that $ 397.3 cannot Carrier Sat
.y Rerulations, the Commission 2.163 No "U" turn on curve or crest of be read more broadly than to require com-stated the fotosing with regard to amended grade.
p11ance with State sad local lani, ordin-P*ft 194-2.17 Special care in overtaking or passing, ances, and regulations relating to (be "me-A number of driving rules in the proposed 2.18 Overtaking must not be prevented by chanics of driving and handItnst of vehicles
- rettslon of this part are objected to on the speeding up, of the type contained in Part 397.
rround that they are in conflict with certain 2.20 Overtaking and passing buses.
It la my opinion that local restrfetions State las s, local ordinances and police reg.
2.25 Not more than i >ur road-lighting that are tantamount to a ban on the trans-ulauons. It is riot out intention to occupy lamps to be illuminated.
portatJon of radioactive matertals through this field eithe't exclusively or in any gTest 2.21 Minimum visibility requirement for or in t.be local juttsdiction cannot be consid-detall so as tn supersede or duplicate local road Ilg hting lamps.
cred to be related to the mechanics of driv.
driving reguf stlons, and in only a very few 2.28 Spotlight must not blind other users ing and handling of vehicles of the type con-compelung.nstances such as. driving while of the highway.
tained in Ps.rt 397 and, as such, are not re-under the influence of alcoholle beverages.
2.32 Lamp [s] or flag [s] on projecting load. quired to be complied with under i 397.3.
stopping of certain vehicles at railroad By deleting the above sections from the
- 2. De assertion (Aal the *%o practicable crossings, and placing of emergency signal 3 final rule the Commission did not intend cliermattoe"pfvetso of 49 CTA I 397.3 refers for stopped or dissbled vehicles, do we think that motor carriers be free from regulatorT to alternate modes of transportution, as well it necessary to prescribe ruks c/ fats nature.
control with regard to that category of regu-as cliernattpe motor echtete routes.
We hate rettetoed the proposed rettsson lations. The deletion of those sections and The express language of $31rf.9(a) speaks tettA (Ats in mind and tcit.A a feto creep.
the adoption of i192.3 were effected in rec.
to this issue:
lions such as indicated. CAose rules tehtch ognition of the interest State and local au.
smuld fait into the cafesory o/ State or local thorities have with regard to the driving Unless there is no practicable alternative, a destsng regulations are not being adopted.
and handung of motor vehlcles *11 thin their motor peAtcle * *
- must be opertted coer Instead ice are prescribing a rule which pro-Jurisdictions. Requiring motor carriers to routeJ whkh do not go through or near vides that rnotor vehicles shall be driven in comply with State and local driving last, or-heavily populated areas. * *~*. or alleys.
mecordance with the laws. ordinances, and dinances, and regulations did no more than (Enzphasis supplied.)
regulations of the Jurtsdtetton in which they illl the gap in the Federal drtMng rules left Sec*lon 397.94) thus addresses itself to are being operated, except to the extent by the deleted sections. As such. 9192.3 wa.s the behaylor of motor txhicles and indicates that spectile regulations of this Commiuton intended to require compt ance with State that the operators of those vehicles are to impose a greater af!Lrmative obligation or and local laws, ordinances, and regulations choose less populous routes. To interpret restraint. (Emphasis supplied.154 MCC 337 of the type addressed by the deleted sec.
$ 397.9(a) to require a motor carrier to con.
tions identified above and did not require tider other than motor transportatica as a 348.The rules that "f all into the category of compliance with State and local Isrs ordln.
State or local driving regulations" that "are ances, and regulations relating to other mat. **practJeable alternative" would take that, section beyond the scope of the particular not being adopted" number 22. In the pro.
ters.
This conclusion has been supported by statutory authority under which it was posal of January 3,1951, they are identified both the ICC and the FifWA. I direct your That, authority is limited to regulaf fnr for issued G8 U.S.C. 834 and 49 U.S C. 304)-
s.s follows:
attention to a March 14, 1955 opinion (I,-
250771 by the Director of ICC's Bureau of the sa.fety in h!ghway transportation.
' Prior to the 1952 amendment to Part 19; Motor Carriers. The opinion was given in re-C1carly the regulation could have gone so the only reference to complying with State sponte to a question of whether carriers far as to prohibit the transportation of has.
and local driving laws was with regard to subject to the Commission's Motcr Carrier sidous materials "* *
- through or near Safety Regulauons may be required to beartly populated areas. * * *. or alleys." A speed limits in no event shall a motor vehicle be comply with hours of service requirementa motor carrter would then have the alterna-driven in or through any State, legal subdi.
of the State of New York while engaged in tive of finding sa alternate snotor vehicle vtalon thereof, the Dtstrtet of Columbia, or operations in interstate or foreign com-route or refr=Nne from carrying the mate-any area under the control of the Federal merce. It appears from the opinion that ria.I.That tbe rulemmenr anthority was not, Government at a speed greater than that New York was relying on I192.3 as the besta exercised to that extent in i 397.9(al is made permitted by such State. legal subdivision for requiring the carrier to comply with the clear by the language of the section.
thereof. District of Columbia or th? Feder. State law. The opLnlon reads in part as fol.
It is therefore my opinion that the "no practicable s.lternative" proviso of 49 CFR al Government.
lows:
When the 1952 Amendment to Part 192 You are correct in your assumption that i 397.9 Le not intended to require a consider-vs.s proposed on January 3.1951 (16 FR 23).
section 102.3 was intended to require com.
stlon of the practicabtLity of transportation the then existing requirement of compig. pliancc with State and local dr!Mng rules of modes alternate to the motor vehicle.
snee with State and local speed limits was the kind contained in Part 192. unlesa a
- 3. 7he casettion (Act beaJ restrictions on retained (see i2.062 of January 3.1951 pro.
contparable Commiuton regulation imposes the transportation of radiometive matencls posal at 16 FR 26). When the proposals were finaltzed on May 15,1952, i192.3 as a greater affirmative obligation or restraint., through a metropolitan area, tchen tanta-You will tote that Part 192 covers what mount to a ben, merely effectuate fAe policy shown above. was adopted.
s FEDERAL Riol5TER. VOL. 43. NO. 77-THUR$0AY, MRIL 20. 1978 4
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'NotlCES embodied in if CTR 16963 Asetkly popidated creasliohen transportsnyJf f.9 of avoiding the riaks assodated irfth those materials when transported in sa:orrfarww witJ DOT Ac.rartfotu matertala associated with the transportation of haz.The DOT recognizes that certain risks are th y
ardous materials and has, by regulation. motor vebicles. This is consistent eritt my taken 4teps to reduce those rtaka to a level conclusion that 1397.9(a) does not require a that will ensure safety in transportation, consideration of the practicabIljty of trens.
Certain matertals, regardless of packaging portation modes alternata to the motor ee.
and handling precautions. present so great a bicle in order to avoid those areas.
risk to safety that they are prohlDited from Because 1391.9ta) does not to so far s?
prohibiting betnr transported in commerce.e However, hazardous materials "' '
- ththe motor transportation et I 397.9(a) addresses itself to those materials that are not prohibited from being trans.
heartly populated areas. * *
- rough or neaJ
. or alleys",1 ported. That section reflects the DOT's de.
must conclude that a local restriction estab-tertnination under its statutory responsibil. 11shing such a prohibition cannot be said to lly (18 UAC. 834 and 49 UE.C. 304) that effectuate the policy of that sectJon.
Sincerely.
'For esample of prohibited materials, see 49 CFTL 11172.5,173.21 and 173.51.
JonN HAa? D.Y.
[FR Doc.78-10540 FIIed 4-19-78; 8:45 amJ s
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