Office of Civilian Radioactive Waste Management; Safe Transportation and Emergency Response Training; Technical Assistance and Funding

DEPARTMENT OF ENERGY

Office of Civilian Radioactive Waste Management; Safe

Transportation and Emergency Response Training; Technical Assistance

and Funding

AGENCY: Office of Civilian Radioactive Waste Management, Department of

Energy.

ACTION: Notice of inquiry; supplemental information.

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SUMMARY: The Department of Energy (the Department) intends to implement

a program of technical assistance and funds to States for training for

public safety officials of appropriate units of local government and

Indian tribes through whose jurisdiction the Secretary of Energy plans

to transport spent nuclear fuel or high-level radioactive waste. The

training would cover both safe routine transportation procedures and

emergency response procedures. The Department issued a Notice of

Inquiry in the Federal Register on January 3, 1995 (60 FR 99) which

briefly describes various options to delineate Section 180(c) of the

Nuclear Waste Policy Act policy and procedures. Members of the public

were invited to submit comments on the Notice of Inquiry. In the March

14, 1995, Federal Register (60 FR 13715) the Department extended the

deadline for comments to May 18, 1995. In a continuing effort to

include stakeholders in pre-decisional discussions, the Department has

developed additional information, presented below, that discusses

options for policy and procedures and their applicability to the

Section 180(c) mandate. The discussion below does not reflect final

Departmental policy. The Department welcomes comments in response to

this Federal Register notice on how best to implement the Section

180(c) program. Comments to the previous notice will also be

considered.

The Department intends to prepare a Notice of Proposed Policy and

Procedures for the Section 180(c) program in 1996.

DATES: Written comments should be sent to the Department and must be

received on or before September 30, 1995.

ADDRESSES: Written comments should be directed to: Corinne Macaluso,

U.S. Department of Energy, c/o Lois Smith, TRW Environmental Safety

Systems, Inc., 600 Maryland Avenue S.W., Suite 695, Washington, D.C.

20024, ATTN: Section 180(c) Comments.

Persons submitting comments should include their names and

addresses. Receipt of comments in response to this Notice will be

acknowledged if a stamped, self-addressed postal card or envelope is

enclosed.

FOR FURTHER INFORMATION CONTACT: For further information on the

transportation of spent fuel and high-level radioactive waste under the

Nuclear Waste Policy Act, please contact: Ms. Corinne Macaluso,

Operational Activities, Office of Civilian Radioactive Waste Management

(RW-45), U.S. Department of Energy, 1000 Independence Avenue, S.W.,

Washington, D.C. 20585, Telephone: 202-586-2837.

Information packets are available for interested persons who want

background information about the Office of Civilian Radioactive Waste

Management (OCRWM) transportation program and the Section 180(c)

program prior to providing comments. To receive an information packet,

please call: 1-800-225-NWPA (or call 202-488-6720 in Washington, D.C.)

or write to the OCRWM Information Center, Post Office Box 44375,

Washington, D.C. 20026.

Copies of comments received will be available for examination and

may be photocopied at the Department's Public Reading Room at 1000

Independence Avenue, S.W., Room 1E-190, Washington, D.C.

[[Page 36794]]

SUPPLEMENTARY INFORMATION:

I. Purpose and Need for Agency Action

Under the Nuclear Waste Policy Act of 1982, as amended (42 U.S.C.

10101 et seq.) (NWPA or ``the Act''), the Department of Energy is

responsible for disposal of civilian spent nuclear fuel and high-level

radioactive waste in a deep geologic repository. The Department is also

responsible for managing the disposal of spent nuclear fuel from

civilian nuclear power plants and high-level nuclear waste, and for

possible monitored retrievable storage of spent nuclear fuel prior to

disposal. Additionally, the Department is responsible for

transportation of spent nuclear fuel and high-level waste to the

Department's disposal or storage sites. To carry out these

responsibilities, the Department needs to implement Section 180(c) of

the Act. Section 180(c) of the Act states:

The Secretary [of Energy] shall provide technical assistance and

funds to States for training for public safety officials of

appropriate units of local government and Indian tribes through

whose jurisdiction the Secretary plans to transport spent nuclear

fuel or high-level radioactive waste under subtitle A or under

subtitle C. Training shall cover procedures required for safe

routine transportation of these materials, as well as procedures for

dealing with emergency response situations. The Waste Fund shall be

the source of funds for work carried out under this subsection. [42

U.S.C. 10175]

In the interest of obtaining input from the broadest range of

stakeholders, the Department began to develop the Section 180(c)

program by publishing a Notice of Inquiry in the Federal Register on

January 3, 1995 (60 FR 99). The Notice of Inquiry briefly described

various policy and administrative options the Department was

considering and invited members of the public to submit comments. In

response to comments requesting more information on these options, the

Department is presenting additional information in this Notice of

Inquiry.

The analysis presented here contains three main sections: Guiding

Principles for Section 180(c) Policy and Procedures, Options for

Section 180(c) Policy and Procedures, and Summary of Public Comments

received in response to the January 3, 1995, Notice of Inquiry.

II. Guiding Principles for Section 180(c) Policy and Procedures

Section 180(c) requires the Department to provide financial and

technical assistance for training. Within this mandate, specific

training elements must be addressed. Training must encompass procedures

for both emergency response and safe routine transportation for public

safety officials and appropriate units of local government and Indian

tribes through whose jurisdiction the Secretary plans to transport fuel

or high-level radioactive waste.

While the mechanism for distributing the funding and technical

assistance for training is not specifically provided for in the Act,

the legislative history (S. Rep. No. 152, 100th Cong., 1987) of this

section suggests that Congress intended for the Department to provide

direct funding to States and they, rather than the Department, would

determine how best to allocate the funds. The Department will retain

the responsibility of ensuring that Section 180(c) funds are

distributed consistent with the NWPA.

In addition, the Department has identified several guiding

principles that it intends to follow in carrying out the requirements

of Section 180(c). The following are not listed in any particular

order.

The Department recognizes that State, tribal, and local

jurisdictions vary in organizational and staffing structures,

philosophies on roles and responsibilities of public safety officials,

and levels of preparedness and training. The Department will strive to

develop a program with enough flexibility to accommodate the wide

variety of State, tribal, and local assistance needs associated with

NWPA shipments and Departmental responsibilities under Section 180(c).

Where possible, the Section 180(c) program should be

integrated into established Federal, State, and tribal training

structures.

The Department's responsibilities under other statutory

authorities must be considered in the Department's options evaluation.

These Departmental responsibilities exist under the Federal

Radiological Emergency Response Plan (FRERP), coordinated by the

Federal Emergency Management Agency, the Department's 5500 series

Orders, and other radiological emergency preparedness and response

programs.

The Department will strive to minimize the Section 180(c)

program's administrative burden on the Department and recipient

jurisdictions.

Distribution or use of Section 180(c) funds must be in

accordance with restrictions applicable to the Nuclear Waste Fund as

indicated in the NWPA.

III. Options For Section 180(c) Policy and Procedures

This section is divided into two parts. The first part discusses a

range of policy options that, when defined, will largely characterize

the scope of the Section 180(c) program. These policy options are

inextricably linked to how the Department will define the training

goals and terms relevant to Section 180(c). Therefore, the policy

options are discussed in terms of: (1) Emergency response training

goals, (2) Safe routine transportation training goals and definitions,

(3) Technical assistance definitions, (4) Eligibility criteria, (5)

Funding allocation formulas, and (6) Restrictions on use of funds.

Second part discusses the procedural options through which Section

180(c) assistance might be administered. These options include other

Federal training programs that the Department may be able to use to

meet Section 180(c) requirements and funding mechanisms that may be

used to distribute assistance.

A. Discussion of Policy Options

Emergency Response Training Goals

Jurisdictions have differences in philosophy, in division of

responsibility, and in levels of resources when planning for hazardous

materials emergency response procedures. Some jurisdictions want those

officials responsible for initial response action (``first

responders'') at the local level to have the highest levels of training

and equipment to prepare for all events. Conversely, other

jurisdictions direct resources to more specialized response

capabilities of regional or State hazardous materials response teams

and provide first-on-scene personnel and first responders with only

awareness training. The Department will take both these positions into

account when delineating the scope of the Section 180(c) program.

Safe Routine Transportation Definitions and Training Goals

The Federal government and State, tribes and local governments

currently engage in a range of activities related to safe routine

transportation and accompanying training. Part of setting the scope of

Section 180(c) will be identifying what in the existing range is

appropriate for NWPA shipments. Most safe transportation activities are

designated the responsibility of the shipper and carrier by Federal

regulatory action. However, States and tribes, in varying degrees,

perform conveyance inspections and impose restrictions and penalties as

part of safe transportation and its enforcement. The Federal government

carries out three types of activities related to safe routine

transportation. The Department of Transportation sets regulations for

driver qualifications, hours of operation,

[[Page 36795]]

labeling and placarding and related activities. They also conduct the

Motor Carrier Safety Assistance Program discussed later in this paper

that provides funding to encourage States to enforce uniform motor

carrier safety and hazardous materials regulations. In addition, the

Department of Energy has implemented stringent driver qualifications

and vehicle inspection standards for the eventual shipments to the

Waste Isolation Pilot Plant near Carlsbad, New Mexico. State and tribal

regulatory authority for safe transportation inspections or enforcement

is much more limited for rail transportation than for highway

transportation.

Some potential definitions of safe, routine transportation have

been developed by the Department and stakeholder groups. The two

definitions listed below may not be comprehensive and additional

activities will be considered when defining safe routine

transportation. Through such definitions, training needs may be better

identified and provided for in a Section 180(c) program.

Proposed definition from Strategy \1\ document: ``Safe, routine

transportation is the condition of incident-free transportation. It

involves the inspection and enforcement of shipments through State,

Tribal, and local jurisdictions. Safe routine highway transportation is

characterized by adequate vehicle, driver, and package inspection, and

enforcement of the Federal Motor Carrier Safety Regulations and the

Hazardous Materials Regulations. Rail and barge transportation

regulations include the Federal Railroad Administration and Coast Guard

regulations. Compliance with Nuclear Regulatory Commission requirements

for prenotification and physical protection also contributes to safe,

routine transportation.''

\1\ U.S. Department of Energy, 1992 Strategy for OCRWM to

Provide Training Assistance to State, Tribal, and Local Governments,

Office of Civilian Radioactive Waste Management, DOE/RW-0374P,

November 1992, Washington, D.C.

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Proposed definition from Transportation External Coordination

Working Group \2\: ``Safe Routine Transportation is the uneventful

movement, from origin to destination, of hazardous materials in a

manner that does not present an undue risk to human health or the

environment and is in compliance with applicable Federal, State, tribal

and local laws and regulations.'' If this definition is chosen, the

word ``hazardous'' will be replaced by the words ``radioactive waste''.

\2\ The Transportation External Coordination Working Group is a

group of national and regional organizations that participates in

the Department's efforts to identify significant issues related to

the transportation of hazardous and radioactive materials, recommend

activities to resolve those issues, and implement appropriate

activities as Transportation External Coordination Working Group

tasks. All meetings are open to the public.

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Technical Assistance Definitions

The Department needs to determine what constitutes ``technical

assistance'' as it applies to the Section 180(c) program. As with safe

routine transportation, technical assistance has been widely discussed

in the Transportation External Coordination Working Group and other

forums where the Department and stakeholders discuss transportation

issues. The following illustrate a range of possible definitions of the

term ``technical assistance''.

Proposed definition from Strategy document: ``Technical assistance

is assistance that the Secretary of Energy can provide that is unique

to the Department to aid training that will cover procedures for the

safe, routine transportation and emergency response situations during

the transport of spent nuclear fuel and high-level radioactive waste.

If a definition of technical assistance is provided in the

implementation of Section 117 of the Hazardous Materials Transportation

Uniform Safety Act (HMTUSA), OCRWM will use that definition for future

planning regarding emergency situations.''

Note: The Department of Transportation (DOT) does not provide a

definition of technical assistance in the HMTUSA regulations.

Proposed definition from Transportation External Coordination

Working Group: ``The term Technical Assistance as it is used in Section

180(c) implies that the Department of Energy will, in general, provide

planning guidance, training support, available definitions of technical

standards and criteria, practical support, and expertise to ensure that

State and tribal governments are trained for safe routine

transportation practices as well as capable of responding to spent

nuclear fuel and high-level waste transportation emergencies within

their jurisdictions. More specifically, activities may include aid in

developing, implementing, and evaluating readiness and response plans;

assistance in developing, conducting and evaluating exercises and

training programs, support for coordination between neighboring groups,

coordination between other government agency programs, and for public

information and education efforts; on-site response support in the

event of an accident or incident; and logistical and scientific

expertise for recovery, reentry, and remediation activities at an

emergency site. Technical assistance may include activities that

monitor and assess the capabilities of groups in order to make funding

decisions. Financial assistance or direct funding, however, is

considered to be beyond the scope of this definition.''

Proposed definition from the Council of State Governments

Midwestern Office: ``The term Technical Assistance as it is used in

Section 180(c) of the Nuclear Waste Policy Act means a variety of

activities designed to ensure that state, tribal, and local governments

are trained for safe routine transportation practices as well as

responding to transportation emergencies within their jurisdictions,

including but not limited to planning guidance, training support,

practical support, funding of pre-identified equipment, and

expertise.''

Eligibility Criteria

While the NWPA clearly directs the Department to provide technical

assistance and funds to States for training for public safety officials

of appropriate units of local government and Indian tribes through

whose jurisdiction the Secretary plans to transport spent nuclear fuel

or high-level radioactive waste, a key determination is the eligibility

of jurisdictions in light of the shipment schedule throughout the life

of the shipment program.

The Department has stated previously that implementation of the

Section 180(c) program will begin three to five years prior to

shipments. Although the Department has not yet selected routes or final

disposal or interim storage sites, current contracts with utilities

identify a sequence of acceptance from utility sites. Eligibility may

be tied to transportation activity within a jurisdiction.

Alternatively, all jurisdictions could receive assistance in the first

year and throughout a Section 180(c) program. The Department must

consider how eligibility may be tied to transportation activity both

before shipments begin and in those cases of years where there is no

transportation activity planned through a particular jurisdiction.

Funding Allocation Formulas

A funding allocation formula is another element of the Section

180(c) program whose definition might assist in establishing the scope

of the program. A funding allocation formula is often the primary tool

in a grants program

[[Page 36796]]

identifying the variables that affect the amount of funding to go to a

particular recipient. A formula may identify a percentage of a pool

that has been appropriated for an entire program or identify

qualification for predetermined amounts. The formula may identify a

single amount for each recipient or a series of smaller amounts for the

recipient to use toward specified goals.

For the implementation of Section 180(c), funding allocation may be

based on a variety of factors. Some of these factors include the

following:

Shipment miles. This is an estimation of miles that a shipment

would cover through a jurisdiction combined with the frequency of

shipments. A slightly different approach would include route miles.

This estimation is a measure of the length of a route through a

jurisdiction but does not include frequency of shipments. The two

measurements produce different results. Using shipment miles would

imply that two jurisdictions with routes of equal length would receive

different funding levels if one jurisdiction experienced a higher

number of shipments compared to the other.

Number of affected jurisdictions. Because training is targeted for

people rather than mileage, the identification of the number of groups

at the State, local, or tribal level that should receive assistance may

be an effective way to determine funding. Using this measure,

allocation could effectively mirror highly populated metropolitan areas

and less populated rural areas. However, the number of affected

jurisdictions may prove too difficult to defend, particularly when

considering the differing training goals of dissimilar areas. As an

example, areas of higher population may have more emergency response

personnel to train, but in general they may already be better trained

and have considerably smaller response areas. Rural emergency response

jurisdictions may cover considerably wider areas with a much smaller

response group.

Population may be a factor in funding allocation as it indicates

the number of people along a route of a particular shipment. However,

this implies areas of lower population would receive lower levels of

assistance and those with higher populations would receive more.

Including a measure of population in an allocation formula may be more

effective if used in conjunction with other measures.

Agreements between neighboring jurisdictions. In some cases, a

State or tribe not receiving funding in a given year may still share

some responsibility with neighboring States or tribes that do receive

funding. An allocation may include a provision for additional

cooperative activities in these cases. However, it is also conceivable

that States and tribes would be asked to rely on their existing

cooperative agreements.

Annual timing of funding. The Department has stated that

implementation should begin three to five years prior to shipments but

some recipients may want to apply the bulk of assistance closer to a

potential shipment date to ensure the highest possible training

retention. Assistance may be provided at the start of the program to

all recipients or it may be linked to transportation activity in a

recipient's jurisdiction. A combination of these two possibilities may

provide basic assistance for all recipients at the program's start and

additional, more specific assistance based on transportation activity

within the jurisdictions.

Designation of a proportion of the assistance for training in

specific areas. For example, funding could be divided by the formula

for training in each mode of transportation, i.e., rail or highway.

Likewise, it could be divided into assistance for routine

transportation training and assistance for emergency response training.

The Department may also choose to leave decisions to recipients on the

specific areas of funding.

Restrictions on Use of Funds

A Section 180(c) program may include some restrictions on the use

of funds to ensure that the Department's intentions for direction and

administration of the program are met. Any restrictions will also

impact the program's scope.

Funding restrictions may affect the choice of training courses,

division of funds for local governments, or coordination activities.

Training costs may be limited to tuition for Department-approved

courses, or recipients may be able to develop or choose their own

training programs with their funding allocation. The Department might

simply suggest a course list to recipients. The Department may limit

the percentage of an allocation to be spent on administrative

activities or specify a percentage that must reach a local or regional

level. Some specification for sharing funds with neighboring

jurisdictions may be included, particularly where Memoranda of

Understanding (MOU) or mutual aid agreements exist between

jurisdictions for emergency response activities.

Some direction may be included governing the use of funds to

purchase equipment. While the Act states that financial assistance is

for training, some have argued that training is only valuable in

conjunction with equipment that will be used. The Department may

develop a list of approved equipment for use, develop a list of

approved equipment for training, or restrict equipment purchase to a

percentage of discretionary funding. Similar choices may be made

regarding travel costs for training of individuals and travel and

salary costs for trainers.

Restrictions may be identified that address the timing of funding

use. For example, recipients may be required to use allocated funds

within each year, within some specified time, or within the life of the

program. An alternate option is to annually reimburse approved expenses

by each recipient.

B. Discussion of Procedural Options

The following section discusses the Department's current research

on procedural options for a Section 180(c) program and the existing

Federal programs that could be used as funding mechanisms or to provide

technical assistance. Also, the section discusses ways to combine

elements of existing options to create new programs for funding and

training. An analysis of each procedural option is included in terms of

the intent of the NWPA and the stated goals of the Section 180(c)

program. The options can be considered either as avenues through which

to administer Section 180(c) or as models that the Department could

emulate.

The existing Federal training programs are discussed in terms of

their safe routine transportation and emergency preparedness

activities, and ways in which they are administered. Options discussed

include: (1) the Department of Transportation's Hazardous Materials

Transportation Act grants, (2) the Department of Transportation's Motor

Carrier Safety Assistance Program, (3) the Department of

Transportation's Federal Railroad Administration's State Participation

Program, (4) current DOE training programs, (5) the Federal Emergency

Management Agency's Comprehensive Cooperative Agreement program, (6)

cooperative agreements and grants, (7) Department-wide or OCRWM

assistance programs, and (8) combinations of options from previous

groups.

[[Page 36797]]

1. Department of Transportation, Research and Special Programs

Administration,

Interagency Hazardous Materials; Public Sector Training and Planning

Grants

This program of Federal grants is primarily considered in this

document for its applicability to emergency response training for

highway shipments.

DOT's Research and Special Programs Administration (RSPA) has

developed a program for reimbursable training and planning grants (49

CFR Part 110). The program was established by the Hazardous Materials

Transportation Act (HMTA), as amended by the Hazardous Materials

Transportation Uniform Safety Act of 1990. It is intended to enhance

existing State, tribal, and local hazardous materials transportation

emergency preparedness and response programs by providing financial and

technical assistance, national direction, and guidance that enhances

overall implementation of the Emergency Planning and Community Right-

to-Know Act of 1986 (EPCRA). The program scope is broader than that of

Section 180(c), covering all hazardous materials, not just radioactive

materials. The program is supported by fees collected from a

registration program for shippers and carriers of certain hazardous

materials.

RSPA has issued a list of activities eligible for funding under

this program. States and tribes must complete application packages

which require specific information on the intended use of a proposed

grant. Applications are reviewed semi-annually and approved or declined

by an RSPA grants administrator.

Applications include detailed descriptions of proposed programs of

planning or training. For training grants, the application includes a

letter from the governor of the State or from the tribal government

with authorization for a particular State agency or tribal organization

to receive or administer the grant; a statement explaining current

practices for collecting fees on the transportation of hazardous

materials and whether such fees are used to support hazardous materials

transportation; a statement outlining individuals who will be

responsible for coordinating and administering the program; a detailed

narrative of goals and objectives; a statement of work, associated

costs, and schedule; and a description of major costs.

For planning grants, the application includes a certification for

compliance with EPCRA; a statement of aggregate expenditures for the

previous two fiscal years; an agreement to make 75% of the grant

available to Local Emergency Preparedness Committees (LEPC) or their

designees; other specifics on who will administer the grant and how;

and a statement that the State Emergency Response Commission has

reviewed the grants application.

The recipient agency is required to provide 20% of direct and

indirect costs, acceptable in funds or in labor and equipment

equivalents. Although limited needs-based advances are allowable in

some cases, in general the grants are reimbursed. An existing grant is

not a commitment of future Federal funding. Training and/or planning

grants have been awarded to 50 States, 5 territories, and 11 Indian

tribes. Indian tribes had been restricted to only receiving planning

grants, but as of 1995 will also be eligible for training grants.

As directed within the HMTA, allocation criteria for both training

and planning grants are based on the needs of applicants. A portion of

the grants is set aside for separate distribution to tribes. Allocation

factors include objective criteria and criteria based on performance,

compliance, and innovation. Some factors considered in allocating funds

include: number of hazardous materials facilities, types and amounts of

hazardous materials transported, population at risk, frequency and

number of incidents reported in past years, high mileage transportation

corridors, whether fees are collected on transportation of hazardous

materials, and whether such fees are used to carry out purposes related

to this activity. This places the burden on RSPA to identify the most

needy applicants in the application review process and reflect their

assessment in each award.

Assistance under Section 180(c) is not needs-based but provided to

each jurisdiction along NWPA transportation routes. The Department will

identify a program-specific basis for Section 180(c) funding

allocation.

2. DOT, Federal Highway Administration, Office of Motor Carriers, Motor

Carrier Safety Assistance Program

The Motor Carrier Safety Assistance Program (MCSAP) is primarily

considered in this document for its applicability to training for safe

routine transportation procedures for highway shipments.

DOT provides Federal funds to the States for a variety of

commercial motor vehicle activities that encourage each State to

enforce uniform motor carrier safety and hazardous materials

regulations through MCSAP. The program was established in the Surface

Transportation Assistance Act of 1982 and reauthorized in the Motor

Carrier Act of 1991 (Title IV of the Intermodal Surface Transportation

Efficiency Act of 1991). Present funding levels exceed $80 million.

The objective of MCSAP is to reduce the number and severity of

accidents and hazardous materials incidents involving commercial motor

vehicle carriers by substantially increasing the level and

effectiveness of enforcement activity and the likelihood that problems

affecting, or potentially affecting, safe vehicle operations will be

detected and corrected. More specifically, States use MCSAP funds to

train personnel to inspect vehicles and driver records, conduct reviews

of carrier operations, and promote public awareness of commercial

vehicle laws and safety. Also, States may use funds to support truck

weight enforcement, drug interdiction activities, uniform truck and bus

accident reporting, Commercial Drivers License enforcement, hazardous

materials requirements training, research and development, public

education, and enforcement of State traffic laws in conjunction with

MCSAP roadside inspections.

Uniformity and compatibility of State regulatory requirements

affecting interstate and intrastate carriers is a primary goal of the

MCSAP. As a prerequisite for MCSAP funding, the Federal Highway

Administration requires that States adopt or agree to adopt interstate

and intrastate regulations which are compatible with Federal safety

regulations. Currently, 48 States and 4 Territories actively

participate in MCSAP but not Indian tribes.

To receive basic MCSAP funding, a State must first agree to adopt

and assume responsibility for enforcing the Federal Motor Carrier

Safety Regulations (49 CFR parts 390-399) and highway related portions

of the Federal Hazardous Materials Regulations (49 CFR parts 107, 171-

173, 177, 178 and 180) or compatible State regulations. Each State must

also submit annually a State Enforcement Plan for the conduct of an

effective safety program. The Federal Highway Administration uses this

plan as a basis for monitoring and evaluating performance of the State.

The Federal Highway Administration, through regulations in 40 CFR

350, lists other specifics for basic grant approval and identifies in

more detail the contents of the State Enforcement Plan including

requirements of State participation in North American Uniform Driver/

Vehicle Inspection

[[Page 36798]]

standards and other Commercial Vehicle Safety Alliance programs. (The

Commercial Vehicle Safety Alliance is a national organization that has

developed uniform inspection procedures, and trains inspectors in these

procedures.)

Available MCSAP funds are distributed in three separate grants:

Basic, Supplemental, and Special. Basic grants are given to each State

with an approved State Enforcement Plan according to an allocation

formula based on the most recent reliable data concerning the following

factors in equal proportion: road mileage, vehicle miles traveled,

number of commercial vehicles over 10,000 pounds, population, and

special fuel consumption. Supplemental grants are used to encourage

innovative, successful, cost efficient or cost effective programs and

may include emphasis areas identified through consultation between the

Federal Highway Administration and States. To be eligible for a

supplemental grant, a State must qualify for a basic grant. Special

grants are awarded for activities that help States meet the

requirements of eligibility for basic grants; or for States already

participating in the basic program, to develop the prerequisites for

expanded activities not presently part of their basic programs. Special

grants are also available for research or data collection activities.

To be eligible for a special grant, a State need not qualify for a

basic grant.

MCSAP reimburses States for 80% of eligible costs identified in the

State's State Enforcement Plan. The other 20% must be provided by the

State. Eligible costs are defined in 49 CFR 350.29 but include salaries

and benefits of inspection and enforcement personnel, recruitment

costs, training, equipment, vehicles, uniforms, motor fuel and oil,

communications equipment, travel costs and per diem, and special

inspection equipment, among others.

3. DOT, Federal Railroad Administration, State Participation Program

The Department has studied this program as a possible avenue to

provide training for safe routine transportation procedures for rail

transportation.

Initial responsibility for the inspection of hazardous material

shipments by rail, which travel on private property, historically has

been placed with the railroads. Government oversight of these type of

inspections has been shared by both the Interstate Commerce Commission

and the Federal Railroad Administration. To date, States and tribes

have played a limited role in these inspections and no monetary Federal

assistance is currently provided in regard to the performance of the

inspections. Following passage of HMTUSA, the Federal Railroad

Administration promulgated regulations on State participation in

railroad safety inspections and investigations concerning

transportation of hazardous materials.

The State Participation Program (49 CFR Part 212) for inspector

training began in 1992. State participation is voluntary. The Federal

Railroad Administration pays for each State participant's travel

expenses, per diem allowance, and course tuition associated with any

conferences, seminars, workshops or classroom training. The State is

then required to provide salary and benefits for the trained inspector

who is expected to spend fifty percent of his/her time conducting

Federal Railroad Administration-related inspections. Federal Railroad

Administration training does not include provision of gear or

equipment.

The Federal Railroad Administration trains inspectors in five

disciplines: track, motive power and equipment, operating practices,

signal and train control, and hazardous materials. In 1995 there are

283 Federal Inspectors and 60 safety discipline specialists spread

across the eight standard Federal regions. Currently, 30 States

participate in the program with 134 State inspectors encompassing all

five safety disciplines.

The number of both Federal and State inspectors who receive

training in any given fiscal year is dependent upon two factors. These

factors are the training budget allocated to the Federal Railroad

Administration as an agency and the reallocation of the training funds

within the Federal Railroad Administration which determines the

training offered and the number of inspectors, both State and Federal,

who will attend the training. If the cost of training all the

perspective Federal and State inspectors in a single fiscal year would

place a drain on the training budget, then the participation in

training is limited.

Prior to applying for the Federal Railroad Administration inspector

training program, a State employee must meet the minimum apprentice

level requirements as stated in 49 CFR Part 212. The Federal Railroad

Administration will work with the apprentice applicant to gain the

necessary field experience in order to become certified as a Federal

Railroad Administration inspector under the auspices of the State

Participation Program.

4. Current DOE Training Programs

Current Department training programs are considered in this

document as possible sources of training for all aspects required of a

Section 180(c) program, regardless of chosen funding mechanisms.

The Department of Energy has an extensive infrastructure with which

to train personnel for safe transportation of radioactive materials,

compliance with Federal regulations, and preparedness and response to

radiological materials accidents at fixed facilities and during

shipment. The following discussion describes the current divisions of

responsibility within the Department for transportation and emergency

response policy, current training programs for transportation-related

activities, and the applicability of these to a Section 180(c) program.

This is not a comprehensive description of the Department's programs

but rather an outline of those training programs with potential

relevance to a Section 180(c) program.

The Department maintains a radiological accident response

capability for the Federal government. The Department's Assistant

Secretary for Defense Programs manages the Radiological Assistance

Program and ensures that the necessary emergency plans, procedures, and

resources are developed and maintained. Qualified Radiological

Assistance Program teams are located in ten regions of the United

States ready to respond when summoned by any other Federal agency,

State, tribe, local government official, private industry

representative, or private citizen. The Department's Office of

Nonproliferation and National Security is responsible for coordinating

the development and operation of the overall Departmental Emergency

Management System, including maintenance of an Emergency Operations

Center. The Department also provides this capability in support of the

Federal Radiological Emergency Response Plan, which outlines the roles

and responsibilities of all Federal agencies in situations involving

radioactive materials.

Within the Office of Environmental Management, the Office of

Transportation, Emergency Management, and Analytical Services is

responsible for setting Departmental policy on transportation matters.

As part of this responsibility, the Office of Emergency Management (EM-

26) Emergency Management Team administers the Transportation Emergency

Preparedness Program, to coordinate all non-weapons transportation

emergency preparedness

[[Page 36799]]

across the DOE complex. The Transportation Emergency Preparedness

Program was established in 1991 to coordinate the development and

maintenance of uniform policies and approaches for Department programs

and field offices responsible for transportation emergency preparedness

activities.

The Department is also involved in activities at national

laboratories and regional operations offices around the country that

require employees and contractors to be trained in proper handling/

treatment of radioactive materials in routine and emergency situations.

Transportation operations personnel must be trained to meet the same

Department of Transportation, Environmental Protection Agency, and

Nuclear Regulatory Commission regulations required of all shippers of

hazardous materials. Because of the variety and magnitude of such

activities, the Department has developed a number of training courses

that deal with radioactive materials. Many are offered to State,

tribal, and local public safety officials as well as Department and

contractor personnel.

Section 180(c) program development could use existing Departmental

courses in several ways. Whether funding were received through the

Federal Emergency Management Agency, DOT, the Department, or some

combination, the training programs could be modified to accept State

and tribal members and train for NWPA shipments. The courses may be

required, approved, or simply suggested by Section 180(c) policy.

Department training may provide the added benefit of consistent,

accurate training. The Department offices that share responsibilities

for the Department's transportation and preparedness policies and

infrastructure, Defense Programs, National Security and Non-

Proliferation, and Environmental Management Offices, will be consulted

as the Section 180(c) program is developed. Any training that is

provided under Section 180(c) will be most effective when it enables

civil safety officials understand and work better within the existing

Departmental and Federal systems.

5. Federal Emergency Management Agency, Comprehensive Cooperative

Agreements

The Department has studied this program as a possible avenue to

channel financial and technical assistance for all aspects of the

Section 180(c) mandate.

The Federal Emergency Management Agency has been charged with

building and supporting the nation's emergency management system. The

Federal Emergency Management Agency is responsible for coordinating

emergency planning, preparedness, mitigation, and assistance functions

for the Federal government. As part of that mission, the Comprehensive

Cooperative Agreement mechanism channels financial and technical

assistance to State, tribal and local governments. The Comprehensive

Cooperative Agreement program (Public Law 95-224, Federal Grant and

Cooperative Agreement Act of 1977) is a possible mechanism through

which Section 180(c) assistance could be administered.

Each Comprehensive Cooperative Agreement program (the Federal

Emergency Management Agency currently administers about fifteen

different Comprehensive Cooperative Agreement programs) can be tailored

to meet specific needs of the recipients and the requirements of the

authorizing legislation. Other agencies, including the Department of

Defense and the Environmental Protection Agency, have used

Comprehensive Cooperative Agreements to deliver funding and technical

assistance to meet the needs of their programs and their statutory

obligations.

There is considerable flexibility in the Comprehensive Cooperative

Agreement and Cooperative Agreement programs that would help cover

several of the statutory mandates of Section 180(c). The money could be

sent to a designated State or tribal emergency response agency and then

passed through to the agency responsible for safe transport activities.

The Federal Emergency Management Agency already has the means to

earmark funds as Nuclear Waste Fund money, making it easier to monitor

proper use and effectiveness of the program. Lastly, the Comprehensive

Cooperative Agreement program allows each statement of work to be

different to suit recipients' unique needs within the program's

parameters.

Whether the Department uses the Comprehensive Cooperative Agreement

process as a funding mechanism, the Federal Emergency Management

Agency's lead agency responsibility for coordinating Federal emergency

management makes it a candidate source for technical assistance under

Section 180(c). The Federal Emergency Management Agency has lead agency

responsibility for monitoring hazardous materials planning and training

under the Hazardous Materials Transportation Uniform Safety Act of

1992, for the Federal Radiological Preparedness Coordinating Committee,

and for the Radiological Assistance Committees.

The Federal Emergency Management Agency submitted a proposal to the

Department for administration of the Section 180(c) program. Their

proposal is referred to in the Summary of Public Comments in this

notice and will be considered along with other comments received in

response to the January 1995 notice.

6. Cooperative Agreements and Grants

Two basic mechanisms are used by Federal agencies to distribute

funds to State and tribal governments: cooperative agreements and

grants. The Federal Grant and Cooperative Agreement Act (P.L. 95-224)

outlines the proper use of each type of mechanism. Grants primarily

indicate a transfer of funds, while cooperative agreements imply more

substantial involvement between parties. Grant mechanisms can be

further subdivided into categorical grants, block grants, and direct

payments for a specified use. A Section 180(c) program may make use of

any of these mechanisms.

Cooperative agreements reflect a more interactive relationship

between the Federal government and a State or local government or other

recipient. As with grants the principal purpose of the cooperative

agreement relationship is the transfer of money, property, or services

to the State or local government or other recipient to accomplish a

public purpose of support authorized by Federal statute. But unlike

grants, substantial involvement is anticipated between the Federal

agency and the State or local government or other recipient during the

planned activity.

Although grants usually present less of an administrative burden

than cooperative agreements, Section 180(c) policy may require

increased interaction between some recipients and the Department.

Cooperative agreements generally require more communication between the

Department and the recipient jurisdiction to develop scope of work,

monitor activities, and complete reporting requirements. Grants can be

narrowly focused in purpose and well defined so that once an

application has been approved the Department's role is limited with the

recipient jurisdiction having more flexibility and fewer record keeping

and monitoring requirements.

The Office of Civilian Radioactive Waste Management currently has

cooperative agreements with ten regional and national organizations. A

cooperative agreement mechanism could be utilized to administer Section

180(c) funds to State and tribal recipients. While it might add a layer

of bureaucracy and increase administrative costs, it may reduce the

long range costs to the Department.

[[Page 36800]]

The Department could use a combination of grants and cooperative

agreements based on the recipient jurisdiction's level of preparedness.

In general, cooperative agreements could be established with recipients

who lacked basic public safety infrastructure, while a grant program

could be established for recipients with more developed

infrastructures. This approach could help address the lack of working

infrastructure for safe routine transportation and emergency response

in some jurisdictions and the fact that many existing Federal programs

do not currently fund tribes as they do States.

The combination of cooperative agreements and grants would allow

for increased involvement between the Department and the recipient

jurisdiction when necessary while not requiring it of all participants.

Once a basic level of preparedness had been reached, a jurisdiction

could transfer to the grant program. With this option the Department

could define a basic level of preparedness and identify applicants

accordingly, or allow each applicant to determine the type of funding

mechanism most appropriate to them.

7. Department-Wide Assistance Program or OCRWM Assistance Program

The options discussed above can be considered either as avenues

through which to administer Section 180(c) or as models that the

Department could emulate. If none of the options are seen as sufficient

to meet the statutory requirements of Section 180(c), it is possible

that the Department could develop an assistance program to consolidate

all activities of similar nature. In a more directed approach, OCRWM

could create its own assistance program tailored for Section 180(c).

Under a Department-wide program, OCRWM would participate with other

Departmental offices in establishing a program to coordinate provision

of financial and technical assistance across all Department of Energy

programs. The assistance could be designed to address training needs

for both emergency response and safe routine transportation of

radioactive materials for States and Indian tribes for the whole range

of DOE nuclear shipments. These shipments include NWPA shipments,

transuranic waste shipments to the Waste Isolation Pilot Plant,

defense, and other Departmental shipments.

This approach presents a comprehensive program covering both safe

routine transportation and emergency response for both States and

tribes. It would promote coordination, increase efficiency, consistency

and uniformity throughout the Department; and allow for a high degree

of Departmental control and oversight. One potential difficulty with

this approach would be that different Departmental offices responsible

for shipping work under different legal requirements that may not be

compatible. A Departmental assistance program would also require a

commitment of resources to consolidate the functional programs that

have traditionally operated relatively independently. A Departmental

program may also adversely impact the current schedule for developing

the Section 180(c) program.

OCRWM could develop and implement its own program, specifically

tailored to Section 180(c) requirements. The benefits of this approach

are that OCRWM could develop a program focusing solely on NWPA

requirements. This offers greater flexibility in designing funding

mechanisms and funding formulas. The disadvantages include duplication

of State and tribal training within the Department and overlap efforts

of other Federal agencies.

8. Combination of Elements from the Previous Groups

In order to encompass safe routine transportation and emergency

response training, for rail transportation and highway transportation,

and for State and tribal recipients, a combination of procedural

options may be most effective. There are many ways to combine the

options to meet the Section 180(c) requirements.

Some options discussed above have the potential to meet all of a

Section 180(c) program's mandates while others have the potential to

cover only a portion. If the Federal Railroad Administration and the

Motor Carrier Safety Assistance Program are used to implement Section

180(c) safe routine transportation training, then a further combination

of options will be necessary. Emergency response training procedures

and tribal government participation requirements would be met through

other avenues.

Current Department programs, the Federal Emergency Management

Agency's Comprehensive Cooperative Agreements, a Department-wide

program, or an OCRWM-wide program offer the best choices for

implementing a complete Section 180(c) program through a single option,

but even here combinations are possible. If funding and technical

assistance are distributed through the Federal Emergency Management

Agency, current Departmental training programs could supply the

necessary training courses.

Other combinations are certainly possible and may include options

not discussed in this paper, such as using funds to obtain training

from private sources and from carriers of hazardous materials.

IV. Summary of Public Comments

The Department received 36 comments in response to the January 3,

1995, Notice of Inquiry. Comments were received from several State

agencies, an Indian tribal government, a tribal organization, county

governments, national transportation safety organizations, national and

regional state government organizations, one Federal agency, a nuclear

energy business organization, a utility and two citizens. The

commenters held very diverse opinions; no single theme for implementing

Section 180(c) was apparent.

The following section discusses general categories and summarizes

major points of comments and the Department's response, where

appropriate. The Department will provide more-detailed responses to

these comments and any additional comments resulting from this Notice

of Inquiry; Supplemental Information when the Notice of Proposed Policy

and Procedures is issued in early 1996.

Major Issues

A. Section 180(c) Policy

The commenters raised many topics related to defining final Section

180(c) policy. Although the Department recognizes that these topics are

closely related and overlap each other, this section divides those

topics into the following subsections: general themes for a Section

180(c) program, safe routine transportation, emergency response

procedures, technical assistance and equipment, and funding

eligibility, allocation and restrictions.

General Themes

A number of commenters offered ideas about the philosophy and

general structure of the program. These ranged from developing a needs-

based type of program to one that offers assistance for an additional

incremental level of training in existing hazardous materials

transportation training.

Several commenters requested a program that assesses the current

capabilities of jurisdictions, assesses the needed level of readiness

for NWPA shipments, and then provides Section 180(c) assistance to make

up the difference. They suggested that planning grants could fund

jurisdictions to complete the capabilities assessment.

[[Page 36801]]

Then, implementation grants could be provided to carry out the

identified activities.

Another general theme urged the Department to take into account the

low level of risk presented by spent nuclear fuel and high-level

radioactive waste shipments and proportion the assistance and training

accordingly. They maintained that current hazardous materials

transportation training for safe routine and emergency response

procedures is sufficient to handle any situation that may occur.

Creating a Section 180(c) program that went beyond the current

hazardous materials transportation training would send a message that

the NWPA shipments are more hazardous than they really are.

Separate from the issue over the basis for distributing assistance,

several commenters recommended using the State Emergency Planning

Committees and the Local Emergency Planning Committees as points of

contact to decide who should receive assistance and to determine the

needed level of training.

Other frequently occurring comments urged the Department not to

ship or to limit the number of shipments until a Section 180(c) program

is in place. This comment was often made in conjunction with the

comment that the Department has an obligation to accept waste in 1998,

and if Congress identifies a storage facility, shipping may well begin

in 1998 or shortly thereafter. In addition, these commenters urged the

Department to accelerate Section 180(c) implementation and to ask for a

Section 180(c) budget allocation in the 1996 budget request to

Congress.

Several commenters encouraged the Department to quickly announce

potential routes. They argued that jurisdictions need to know as soon

as possible what routes will be used so that they may begin planning

immediately for shipments and be prepared if shipping occurs prior to

the year 2010 currently targeted by the Department.

Safe Routine Transportation

Several definitions of safe routine transportation were offered.

These often included activities commenters thought should be included

in training for safe routine transportation. One commenter endorsed the

Transportation External Coordination Working Group definition while two

commenters wrote more expansive definitions to include combinations of:

alternate route analysis, inspection and enforcement training, en route

contingency plans, transportation infrastructure improvements, shipment

notification and tracking, escorts, public information, and development

and distribution of training curricula and course materials.

Not all comments referred to safe routine transportation directly,

but identified the need for escorts and a satellite tracking system.

The Conference of Radiation Control Program Directors questioned the

need for escorts as an expensive option considering the actual level of

risk compared to other hazardous material shipments. The National

Conference of State Legislatures called for the Department to examine

the possibility of response teams travelling with the shipments. The

tracking system was encouraged as a way to build trust in the safety of

the shipments and work more closely with the corridor jurisdictions.

Emergency Response Procedures

Several commenters offered either definitions of emergency response

procedures or offered activities that they thought should be covered by

training for emergency response procedures. Frequently, the Department

was asked to delineate the responsibilities of each response level in

case of a spent nuclear fuel transportation incident or accident. Only

then would the best funding mechanism be identified.

It was frequently commented that emergency response training for

local public safety officials should be integrated into existing

hazardous materials training. A couple of comments pointed out that

current hazardous materials training was sufficient for local

responders because the response requirements for radiological incidents

fall within the requirements for other hazardous materials shipments.

Contradictory comments were received concerning training for

hospital personnel. One commenter argued that training for hospital

personnel was not necessary, while others comments ranged from the need

to provide simple awareness training to specialized decontamination

equipment and training.

Eligibility Criteria

Comments on eligibility criteria focused on which jurisdictional

level should be eligible to apply for funds. Some argued that local

governments should be eligible to receive funds directly. They argued

that this would reduce administrative costs and give local governments

more control over the assistance. Several counties simply requested

that they be guaranteed an amount of funding and given some discretion

in using the assistance. Other commenters said only States and tribal

agencies are eligible to apply for assistance.

Some commenters made suggestions regarding how the timing of NWPA

shipments through a jurisdiction impacts eligibility. The Western

Interstate Energy Board defined an eligible state or tribe as host and

corridor states or tribes through which shipments under the NWPA are

planned within six years. Others said training should begin one to

three years prior to shipment.

The point was also raised that tribes near corridor jurisdictions

should be eligible for assistance, since their lands and people would

be at risk in case of a transportation accident or incident.

Funding Allocation Formula

Once eligibility criteria are determined, the total assistance

available will have to be allocated among the eligible parties.

Commenters were fairly specific in their views of how funds should be

allocated. A frequent comment was that funds should be allocated

according to the shipment miles through a jurisdiction. The Western

Interstate Energy Board commented that annual implementation grants

should have 75% of the funds allocated according to shipment miles and

25% allocated to ensure minimum funding levels and program

capabilities. They defined shipment miles as the product of the

expected number of shipments multiplied by the distance of such

shipments. The Nuclear Energy Institute countered that the number of

shipment miles through a jurisdiction does not automatically make a

jurisdiction more impacted and therefore does not qualify them for

additional assistance. They requested that the Department allocate

funding to incrementally increase preparedness above what exists,

rather than build a new radiological response capability.

The Southern States Energy Board suggested that funding should be

allocated to each eligible jurisdiction based on a formula that

includes both the number of routes miles in the jurisdiction and the

population at risk along the shipment route(s), with consideration

given to existing capabilities.

The HMTA Training and Planning Grants approach (discussed on pages

8 and 9 of this notice) to allocating funds was also suggested as a

model.

Allowable Use of Funds

The Notice asked stakeholders what types of activities should be

allowed once funding has been allocated. This discussion often overlaps

with the discussion of program scope and the

[[Page 36802]]

definition of key terms. Several State agencies and organizations said

that States and tribes should be the ones to prioritize needs and

decide who needs training. They argued that recipients need wide

latitude in deciding how to spend funds because of the varying levels

of preparedness, divisions of responsibility, and other differences

among jurisdictions. Many commenters, however, said that the final

allocation of funding should guarantee a specific portion of the

funding for local governments to use as they see best.

Another comment argued that the DOT Research and Special Programs

Administration grants program provides a good model for allowable

activities. These regulations require recipient jurisdictions to

describe existing programs and explain how the requested funds supply

necessary improvements to the existing capabilities. They also provide

for monitoring of the program's effectiveness.

Another frequently mentioned point was that the Section 180(c)

program should not require any matching funds from the jurisdiction in

order to receive assistance.

The final Section 180(c) program will indicate what, if any,

restrictions there will be on the use of funds. Most likely, the types

of activities that the Department will consider in this area include:

what, if any, equipment a jurisdiction could purchase; what, if any,

training courses would be mandated or recommended; and what, if any,

percentage of funds would have to be distributed to local public safety

officials as opposed to State, tribal, and regional officials.

Technical Assistance and Equipment

Several commenters discussed the definition of technical assistance

in addition to equipment issues. All the comments that included

definitions of technical assistance identified the need for equipment

in that definition. Therefore, these topics are being discussed

together in this section.

Some commenters suggested that the Department use the

Transportation External Coordination Working Group definition of

technical assistance cited in the text above. Another suggested using

the Department's 1992 Draft Options Paper definition, also cited above.

Other suggestions were more broad in their application, encompassing

such things as emergency response equipment, inspection equipment,

assistance in route planning, emergency response plan development,

course development and exercises, tracking capability, equipment and

training for hospital personnel, 24-hour access to Federal radiological

safety personnel, carrier qualifications, and funding, among others.

The Conference of Radiation Control Program Directors questioned

the need for equipment, especially for local responders. They argued

that the low risk of these shipments does not justify a response

capability beyond what currently exists. The Federal Emergency

Management Agency, on the other hand, offered their assistance to the

Department in providing technical assistance and equipment to

responders through their role as providers of emergency and disaster

preparedness for State, tribal, and local governments.

One of the broader views on equipment came from the Council of

State Governments-Midwestern Office. They believe the Department should

supply funding for equipment, its maintenance and calibration, and that

States should have funding to purchase computer software and hardware

to assist with monitoring and response activities.

Concerns of Rural and Tribal Governments

Many comments reflected concerns of jurisdictions in rural parts of

the country and of tribal governments. Issues of concern to tribal

governments are often very separate because of their sovereign nation

status. However, in many instances, concerns overlap with those of

rural jurisdictions.

Comments received that dealt directly with tribal issues reiterated

the Department's responsibility to work with tribes on a government-to-

government basis and to fulfill the Department's Trust responsibility

towards tribal governments. One comment encouraged the Department to

begin direct communications with tribal governments near reactor

locations to address their particular concerns. The Department was also

encouraged to contact tribal governments who may not know they could

have NWPA shipments crossing their lands.

The Department was also encouraged to take extra steps to address

the lack of infrastructure and resources on many of the tribal lands

that will be crossed by NWPA shipments. This should include providing

resources to allow tribes to participate in the OCRWM program and to

begin early to build an emergency response infrastructure for those

tribes lacking basic infrastructure. One comment urged expansion of the

cooperative agreement with the National Congress of American Indians to

help facilitate communication with tribal governments.

Other commenters made suggestions about how a Section 180(c)

program could address the concerns specific to rural areas. Rural

jurisdictions often rely heavily on volunteer public safety personnel

with high turnover rates, they serve large areas with few staff, have

few resources for training, and little or no ability to travel to

obtain training. The commenters encouraged the Department to offer

training in the community where the local responders reside and to

guarantee that certain levels of training and equipment would be

supplied.

Both tribal governments and rural local and state governments

expressed concern about lack of infrastructure or basic funding and

personnel to build infrastructure. The transportation emergency

response workshops sponsored by the National Congress of American

Indians through their cooperative agreement with the Department of

Energy, are a way to address tribal concerns. This preliminary type of

awareness training may help provide some of the basic knowledge and

know-how commenters mentioned as lacking.

How much training and assistance is available for any eligible

jurisdiction will depend on how Section 180(c) policy is defined. What

training goals are set for what level of public safety official will

give an indication of the assistance available at various governmental

levels. These types of decisions will also determine whether the

Department provides funding for the State and tribe to distribute as

they see fit, whether certain portions of funding are required to be

spent at the local level, whether training is proscribed at one or two

locations around the country, or whether the Department sends materials

to the local jurisdiction for their own self-study.

The Department has made no decisions regarding Section 180(c)

policy or the associated definitions and activities discussed above.

These comments and others received throughout the development of the

Policy and Procedures will be considered in the Department's decisions.

B. Section 180(c) Procedures

Of the options for implementation outlined in the Preliminary Draft

Options paper and the January Notice of Inquiry, no clear-cut choice

was identified in the comments. Some commenters suggested additional

sources to consider for implementation procedures, and a few suggested

new combinations of existing options.

[[Page 36803]]

One theme found among comments on procedural options was the

request to minimize the administrative burden on all parties. Depending

on the perspective of the commenter, this appeared as requests to

either enhance or avoid existing programs. The theme also surfaced as

requests to limit layers of bureaucracy and administration through

which funding must be passed.

(1) Use Established Federal Agency Programs Other Than the Department's

From the State perspective, the Texas Department of Public Safety,

Division of Emergency Management commented that receiving additional

assistance through an existing and familiar program would be the least

administratively burdensome. The Federal Emergency Management Agency

Comprehensive Cooperative Agreement program, and the Research and

Special Programs Administration program, under the Hazardous Materials

Transportation Act were both mentioned as good options to avoid

multiple Federal agency coordination requirements. New assistance

programs, some felt, would create new administrative burdens.

The Federal Emergency Management Agency commented extensively with

descriptions of their current regulatory authority to monitor and

assess emergency plans and preparedness and a proposal for how they

could administer the Section 180(c) program. This agency has current

training programs and expertise in the emergency management field.

Although a commenter criticized the agency for placing emphasis on

preparations for nuclear attacks rather than transportation incidents,

the Federal Emergency Agency stressed their all-hazards approach to

preparedness that includes radioactive materials shipments within the

larger scope of emergency preparedness.

The Nuclear Energy Institute commented that a separate program for

Section 180(c) in addition to the Research and Special Programs

Administration under the Hazardous Materials Transportation Act program

will force utilities to pay twice for emergency preparedness. They

suggested that working with RSPA could address this issue.

Both tribal and non-tribal commenters identified problems

associated with existing Federal programs and a dissimilar approach to

tribal assistance. Many concluded that the Department will need to

address tribes in separate agreements. Also, it was suggested that the

Department explore more current funding mechanisms used by tribes such

as the Department of Housing and Urban Development Community

Development and Block Grant Program.

Many county commenters expressed concern that any additional

involvement of the Federal government would detract from the amount of

funding ultimately destined for training costs and equipment. Others

cited a diminished focus on NWPA shipments, Nuclear Waste Fund issues,

government downsizing, or added administration as negative aspects of

this option. The Commercial Vehicle Safety Association also pointed out

that it may put expertise and training further away from the intended

delivery point.

(2) Establish Agreements With State, Local, Tribal, and Other

Organizations

This option prompted a variety of interpretations. Some identified

the potential improvements in regional cooperation and efficiency as

the biggest benefit to establishing agreements with organizations.

Agreements or Memoranda of Understanding between recipients, agreements

between the Department and recipients, or agreements between the

Department and regional or national coordinating organizations were all

discussed. Overall, State and regional coordination was identified as a

benefit.

This option, specifically through an additional agreement with the

National Congress of American Indians, was indicated as a potential

solution to the Department ensuring up front consultation with tribal

recipients. It was suggested that expansion of cooperative agreements

with tribes would be beneficial, particularly in light of the

differences between tribes and other recipients governments.

Many commenters, however, after praising the benefits of

cooperative agreements pointed out that their development is a lengthy,

involved process and may take too long to implement effectively. Two

specifically cited the Waste Isolation Pilot Plant program, which has

developed over six years and only involves seven States substantively.

Also, this option was named as an unnecessary administrative layer that

would take away from total funding to be spent on training.

Some other organizations were suggested for total or partial

implementation or training support. The Association of American

Railroads' Technical Training Center in Pueblo, Colorado is well suited

to train emergency responders for rail incidents and is currently in

operation. The Commercial Vehicle Safety Alliance has worked closely

with the Department to develop enhanced uniform inspection standards

and train inspectors.

(3) Establish a Department-Wide Grant Program

Response to this option was mixed. Some called it inappropriate or

difficult, citing the Nuclear Waste Fund issues of commingling funds or

the inability to coordinate with the diverse shipping campaigns of the

Department in a timely manner. Another commenter noted that the fewer

points-of-contact between the Department and stakeholders would be

beneficial.

One comment praised the current training courses offered at the

Nevada Test Site and encouraged the Department to include them in

Section 180(c) training. Another commenter suggested a review of the

Waste Isolation Pilot Plant project as an effective implementation of

similar goals. However, it was noted that this project targeted a

smaller and better identified group, and modifications would be

necessary.

(4) Establish an OCRWM Grant Program

Many commenters saw this option as the most direct funding option.

Some pointed to a minimized bureaucracy and administration, increased

flexibility, and a resultant reduction in competition with other

funding priorities as benefits of distributing Section 180(c)

assistance without involving other programs. Also, the diversity of

recipients and increased Department control and accountability were

mentioned as benefits.

The Western Interstate Energy Board commented on this option

favorably, provided that such a grant program incorporates flexibility

to allow States to coordinate the training and funding. The Southern

States Energy Board and the National Conference of State Legislatures

both identified this option as favorable if additional national or

regional coordination efforts were also supported.

Many county commenters interpreted this option as similar to the

direct payments made to local governments through Yucca Mountain

oversight programs. They were generally in favor of options that assist

local governments as directly as possible.

(5) Use Elements From the Previous Four Groups

Two commenters agreed that a combination of OCRWM grants and

regional/national group cooperative agreements would be best. This

could provide the proper degree of direct contact between the

Department and recipient governments while also

[[Page 36804]]

encouraging national or regional planning, coordination, and

uniformity.

It may be necessary to apply a combination of options to encompass

the wide array of objectives outlined in the NWPA. This range was

discussed above in part III.B.8, Combination of Elements from the

Previous Groups.

C. Applicability of Section 180(c) to Private Shipments

Many States, counties, and regional groups urged that the Section

180(c) program should apply to all commercial spent nuclear fuel or

defense high-level radioactive waste shipments ultimately destined for

a NWPA facility, whether or not those shipments are transported to and

stored on an interim basis at a private facility. Commenters cited that

any large-scale shipping campaign of such materials will have virtually

the same impact on States and tribes as that envisioned in the NWPA.

The Department does not currently have the legal authority to

implement a program of financial and technical assistance for shipments

other than those outlined by the NWPA. However, the many comments on

this issue have been noted.

D. Policy Development Process

A few commenters questioned the Department's plans to issue a

Notice of Policy and Procedures rather than establish the program in

regulations. They voiced concern that implementation of Section 180(c)

through regulations is necessary to ensure stability through changes of

leadership within the Department and that an interpretation of policy

and procedures is ``less robust.'' An expedited rulemaking process was

suggested to accommodate time constraints.

The Department's response to these comments is that development of

the Interpretation of Policy and Procedures has followed and will

continue to follow Notice and Comment Procedures of the Federal

Rulemaking process. At some future date the option of converting Policy

and Procedures to a rulemaking may be acted upon. In development,

however, it was the Department's intent to remain flexible in order to

work through unforeseen problems without rulemaking requirements.

V. Conclusion and Request for Submission

This paper has presented a discussion of options for Section 180(c)

policy and procedures. The subjects discussed here should not be viewed

as the only potential options for the program. Comments received on

this Notice and continuing research on these options may still identify

aspects of the program not discussed here that will be included in the

Notice of Proposed Policy and Procedures, which the Department intends

to publish in 1996. The purpose of this document has been to share with

stakeholders the research to date and request additional comments from

interested parties.

The Department solicits comments from the public on all aspects of

Section 180(c) implementation.

Issued in Washington, D.C., July 12, 1995.

Daniel A. Dreyfus,

Director, Office of Civilian Radioactive Waste Management.

[FR Doc. 95-17627 Filed 7-17-95; 8:45 am]

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