December 20, 2000

U.S. Department of Transportation (DOT) RE: 49 CFR Parts 171-178, 180

Research and Special Programs Administration Docket No. RSPA-2000-7702 (HM-215-D)

400 Seventh St. SW Room PL 401 Notice of Proposed Rulemaking: RIN 2137-AD41

Washington, D.C. 20590-0001 Harmonization with UN Recommendations,

Dear Madam or Sir:

Please accept, take into positive consideration, and adopt in the DOT's

Final Rule on the Notice of Proposed Rulemaking cited above the following

comments and recommendations concerning 65 FR 63294 ff. These comments are

submitted on behalf of the Sierra Club, especially in so far as the

Proposed Rule, when finalized, may in any manner affect members of the

commenter's Pennsylvania Chapter and others. These comments focus

principally on the portions of the Proposed Rule concerned with radioactive

materials and wastes, but they may be applicable also to other materials

and wastes that are designated as hazardous. Our interests lie primarily

in the realm of protection of the natural environment from release and

dissemination of biologically injurious materials into the biosphere and

their adverse impacts on human health and safety and on the viability and

survivability of other forms of life that comprise the ecological system.

1. It is respectfully requested that the DOT extend the public comment

period on this matter for an additional 60 days following free public

availability, via the internet and in paper form, of all of the documents

that DOT proposes to incorporate by reference into these regulations. This

request is due to the complexity of, and the great difficulty in obtaining

access to, those international rules and other documents which are

incorporated by reference and adopted by DOT in its Notice of Proposed

Rulemaking. It is also due to the importance, longevity, and

irreversability of the potentially negative consequences of these actions

for people and the environment. Wording of the proposal [at Section

III.171.14] indicates that these provisions will not be finalized and go

into effect until October 2001. To our knowledge, there have not been

public hearings nationwide. It is important to afford potentially affected

members of the public the maximum possible amount of time to review the FR

Notice, to have free access to the referenced documents, and to submit

comment. There is adequate time for the DOT to do so.

2. It is inappropriate for an agency of the U.S. government to adopt

enforceable requirements, regulations, or guidance based on foreign

nations' or international bodies' regulatory requirements that are, or may

be, less protective of the health and safety of U.S. citizens and the

environment of the United States than are our own regulations at Federal,

Tribal, State or Municipal levels of government. Absent readily accessible

public availability of the numerous international documents cited in the

Section II Overview to be incorporated by reference only, the DOT is

denying to American citizens full access to the information necessary in

order for them to provide informed public comment on the issues. Such

opportunity is required under the 1946 Federal Administrative Procedure

Act; and U.S. citizens must be protected to the full

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extent of U.S. statutes and regulations. Such denial of access to

pertinent information by DOT is an arbitrary agency action and, indeed,

capricious and contrary to the intent of the APA statute.

3. Actions that in any way relax existing radiation protection standards

and regulations are insupportable and must be abandoned by DOT. The U.S.

DOT and its brother regulatory agencies -- instead of claiming a need for

"harmonization" with IAEA or other nations' rules that will result in

lessening the level of protection for the American people and environment –

should be leading the world to reduce public exposures to ionizing

radiation (and to other hazardous materials and wastes). Substantial

quantities of radioactive and other hazardous materials and wastes have

already been released, are found in transboundary trade, and are being

recycled into a host of consumer products without control. The Department

should be engaging with other agencies in identifying and reclaiming

contaminated materials to remove them from the ambient environment and

bring them back under regulatory control and isolation. This NPRM should

therefore be withdrawn and, at minimum, revised to prevent, not foster,

potential increases in exposure from transport and other related activities

as broadly defined in the Notice.

4. Moreover, under existing "free trade" agreements, there is a legitimate

public concern that requirements for U.S. compliance with NAFTA, GATT, and

WTO rulings may in the future necessitate the Department's weakening even

further its regulations governing the transport, storage, and other

management of radioactive (and hazardous) materials in international

commerce. This "harmonization" rule appears to be a giant step in that

direction. Instead, it is urged that the DOT adopt the Precautionary

Principle that provides for appropriate conservatism when human health and

safety and environmental quality are at risk. This NPRM is,

unquestionably, a move away from protectively conservative regulation in

the interests of the American people to whom Federal agencies are

responsible and answerable.

5. This Proposed Rule is a means to accomplish widespread deregulation,

release, recycle, and reuse of contaminated materials and wastes by the

exercise of exemptions and setting of floors on regulated levels of

contamination. The result will inevitably be additive and cumulative

exposures for members of the public to "low-level" radiation doses from

which recipients will derive no benefit to counterbalance the additional

risk of health damage. No consideration is given to the impacts of

additional exposures for other components of the biosystem, either for

their own sake or for their role in support of human life. International

"harmonization" does not justify overriding public health and environmental

protections for the American citizenry.

6. The Proposed Rule, by abolishing labeling and monitoring requirements

for what the agency deems to be "low-level" contamination, prevents

affected members of the public from knowing, measuring, or being able to

ascertain additive exposures that they will receive in small increments

which may also be incremental in their adverse impacts on the recipient's

health. There is no indication in the Proposed Rule that the DOT has taken

into account potential either [non-cancer, non-fatal] somatic or genetic

damage that may also occur from additive, cumulative, and synergistic

exposures to the contaminants in question. The impacts and costs to the

affected public of these factors must also be fully considered and included

in DOT rules.

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7. Nowhere in this Proposed Rule, which relaxes dose standards for the

public from both radiation and hazardous materials, has DOT shown that any

attention has been paid to the synergistic, interactive relationships

between and among the vast numbers and varieties of these biologically

damaging materials and wastes whose sequestration from the environment will

be decreased by promulgation of this rule. Without full, scientifically

validated analysis of the impacts of these complex relationships on human

health, at the minimum, it is clearly arbitrary for the DOT to claim that

the added risks are "trivial." For this reason, too, the NPRM must be

withdrawn.

8. It is noted, at Section IV.B. of the NPRM, that DOT claims Federal

preemption over the exemption of radioactive (and other hazardous

materials) under Executive Order 13132. The DOT avers that the proposed

rule would not have "substantial direct effects on the States, or the

distribution of power and responsibilities among the various levels of

government." Quite to the contrary, the transport of radioactively

contaminated materials through the States and across the lands of sovereign

Native American nations is indeed a matter of extreme interest affecting

those governmental entities. While a degree of uniformity is important,

each non-federal entity has conditions and responsibilities that may

require them to be able to promulgate and enforce regulations that exceed

those of DOT, and certainly the weaker ones being imposed by IAEA.

9. Furthermore, between and among Federal regulators, in light of EPA's

public radiation standards-setting responsibilities and the pending

completion in 2001 of NRC draft regulations and standards for release and

recycle ("Control of Release") of "low-level" radioactive materials and

wastes, and in view of the lack of such standards promulgated by EPA (which

is the agency having statutory authority to set exposure standards for

members of the public), it is clearly inappropriate and may be illegal for

the DOT to usurp the role of other regulatory agencies. This is not to say

that an NRC rule that allows the deregulation, release, or recycle of

radioactively contaminated materials or wastes is acceptable. But for the

above reason of preemption as well, this NPRM should be withdrawn.

10. In the opinion of critics of nuclear materials and waste

transportation, existing packaging requirements are insufficient to assure

public safety or environmental protection. Provisions of the Proposed Rule

that would decrease container and packaging quality are insupportable and

should be rejected by DOT. U.S. Customs officials and recipients of

transported materials now anticipate large increases in the traffic in

contaminated materials entering this country. They need broad authority to

prevent unsafe containers and packages in our transportation system, on our

highways, railroad, and airplanes. MOX fuels may become a source of

long-lived alpha contaminants in the highly probable event of serious

accidents during coming decades. There is no evidence that the DOT has

given adequate consideration to this hazard. It must do so.

11. Specific exemptions and exceptions from regulatory control are

especially troublesome for the public's interests in safety. For example,

at III., the Summary of Regulatory Changes: Part 172. Appendix B to Section

172.101, the new "Special Provision 139" allows radioactive material

"transported under special arrangement non-fissile or fissile-excepted"

with an IAEA

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Certificate of Competent Authority to be issued by the U.S. Competent

Authority" to have domestic transport "only under a DOE exemption." Here,

too, it appears that the overriding international "harmonization"

provisions authorize the internal domestic agency to exercise, in effect,

deregulation from U.S. federal rules meant to protect the public. Some

would view this as an abdication of our national sovereignty to promulgate,

exercise, and enforce Federal domestic rules and regulations intended to

protect our population.

12. At Section 172.203, DOT's proposed revisions appear to exempt low

specific activity material and/or surface contaminated objects from "the

requirement to add the appropriate group notation to the shipping

description." This, it is suggested, is tantamount to restoring NRC's 1990

"Below Regulatory Concern" Policy Statement that was revoked in part in the

1992 National Energy Policy Act. It is a DOT action that is not acceptable

to the public, and should, with the remainder of the NPRM, be withdrawn..

13. Of particular concern are the relaxations of conservative regulatory

control over air transport of nuclear materials and wastes. Plutonium and

MOX fuel shipments, in particular, pose extraordinary hazards in the event

of aircraft crashes. The DOT has not at all provided evidence that

existing or proposed containers are capable of withstanding crash impact

intact.

Under no conditions should the DOT enter into any "harmonization" of

regulations that reduces safety margins for transport of these materials.

At Section 175.78, it appears that DOT will also permit removal of "the

distinction between primary and subsidiary risk labels," adding "a new

provision to clarify that packages with multiple risks would not need to be

segregated from other packages bearing the same UN number." It is

suggested that this is also an unacceptable relaxation of control and

should be deleted from any revised rule that DOT might propose.

In the positive realm, we would encourage the Department, after withdrawal

of this Proposed Rule, to focus instead, and in concert with its fellow

agencies, on ways to improve further domestic and international nuclear

materials control, minimization of movement of radioactive materials and

wastes consonant with the primary goal of assuring their isolation from the

biosystem, more thorough severe accident testing, and development of safer

transport equipment, and cooperative efforts with the Tribes, States, and

Municipal governments to enhance nuclear safety by reducing even further

accident potentials.

To the extent that international commerce in nuclear and other hazardous

materials may prove unavoidable, uniform minimal standards applicable to

all should be augmented by allowance of more restrictive requirements by

national governments, and Tribal and State and municipal officials who are

the ones who know the areas for which they have primary responsibilities to

protect people and the land. Under no circumstance should a demonstrably

pro-nuclear agency, such as the IAEA, be granted preemptive regulatory

authority over the safety of our citizenry.

Recognition that there is no safe exposure to ionizing radiation is the

first principle of radiation protection and control, as was noted in the

1990 Report of the National Academy of Sciences'

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Committee on the Biological Effects of Ionizing Radiation. Despite efforts

of nuclear industry and weapons proponents to unseat the linear

dose-response hypothesis and return to a discredited notion of "safe

threshold" or adopt a similarly baseless theory of "hormesis," research

evidence increasingly confirms the health (and genetic) hazards of

low-level radiation exposures, particularly for the very young and elderly.

The role of the U.S. DOT in the development of sufficiently protective

control over transport of radioactive materials and wastes can be

enormously beneficial to the public if it is based upon an understanding

that the quality of life and of the environment for future populations as

well as for our own generation obliges strict adherence to the

Precautionary Principle. The costs of compliance with truly protective

regulations is a cost – and burden if necessary – that all generators of

radioactive and other hazardous materials and wastes must be required to

accept for the greater good and stewardship.

Finally, the Department of Transportation is earnestly urged to increase

and enhance its regulatory authority in the direction of stronger, not

weakened, requirements for minimization of release – preferably as close

to zero release as can be achieved. Do not base DOT actions on the

pleadings of costs by the generators; control of contaminants is a cost of

doing business -- of generating biologically dangerous materials and

wastes. Set restrictive regulations and let other nations follow our most

restrictive controls over transportation and they also may be inspired to

adopt more stringent regulations. It is significant to bear in mind that

minimization of the production and use of dangerous materials and wastes

will reduce the magnitude of the biologic mischief they can wreak. The

indirect exercise of its authority by this agency can contribute positively

to reducing these hazards. Those concerned for the quality of the

environment and its inhabitants will be willing allies in assuring safety.

In summary: these comments do not plumb the proposed Rule in depth, but

rather suggest some of the major faults with the rule. The public is

entitled to know what DOT proposes and to be heard in both a series of

public hearings nationwide and an opportunity to obtain the pertinent

documents and submit written comment to DOT. A wise course of action would

be to withdraw this defective proposal and recast it to increase, not in

any way decrease, regulatory control over the transport of the radioactive

and hazardous materials and wastes at issue.

Thank you for giving full consideration to these comments.

Sincerely,

Judith H. Johnsrud, Ph.D.

Pennsylvania Chapter of Sierra Club,

Chair of the Chapter's Energy Committee and

Committee on Radiation and the Environment;

Past Chair of the Sierra Club Energy Committee

and Nuclear Waste Task Force