December 22, 2000

US Department of Transportation (DOT)

Research and Special Programs-RSPA-00-7702 (HM215-D)

Docket Management Facility

400 Seventh Street S.W.

Nassif Building, Room PL-401

Washington, DC 20590-0001

202-493-2251 fax

RE: DOT Notice of Proposed Rulemaking, 65 Federal Register 205:63293-63435, Oct. 23, 2000

Docket # RSPA-00-7702 (HM215-D)

"Harmonization With the United Nations Recommendations, International Maritime Dangerous Goods Code (IMDGC) and International Civil Aviation Organizations Technical Instructions (ICAO TI): Proposed Rule"

TO THE DOT and RSPA:

We have concerns about the process, procedures, assumptions, incorporation by reference of significant and not-easily-accessible documents, and the lack of democracy in the development and adoption of the DOT proposed rules. Our technical concerns are with the radioactive portions of the proposed rule, those that involve radioactivity, radioactive materials, wastes, consignments, exemptions, criteria, testing, enforcement, etc. We neither endorse nor direct comment to the portions of the rulemaking pertaining to hazardous materials, although the procedural concerns could apply to the entire rule.

We demand that there be no reduction in current radiation and radiological protections and that current protections be increased if they are changed at all. NIRS opposes any changes that increase allowable concentrations or amounts of unregulated, deregulated, or exempted radioactive materials. We oppose any changes that weaken already existing standards, even though we may be critical of those existing standards. Greater public knowledge, involvement and access to rulemaking are essential.

In simplest terms, NIRS has serious problems with ST-1 and asks DOT to not adopt ST-1/ TS-R1 or ST-1/ TS-R1-containing-documents into the US code for international or any purpose. The world is already "harmonized" using the latest version of "SS-6." The US DOT essentially would be leading the international way to adopting intolerable changes in radioactive transport regulations, with minimal public knowledge or acceptance. Further, US adoption of these standards for international commerce will impact the domestic portion of international shipments into, out of and through the US. It will accelerate the pressure for DOT and the Nuclear Regulatory Commission to adopt the same standards for domestic nuclear transportation.

It may be time to reassess the nearly-automatic assumption of UN International Atomic Energy Agency (IAEA) recommendations into the US regulations. It may be time to question the closed, anti-democratic process by which UN agencies such as the International Civil Aviation Organization (ICAO), International Maritime Organization (IMO), and others, appear to adopt nuclear regulations, policies and documents from the IAEA, which subsequently become incumbent on independent nations. Whether or not those questions are to be pursued now, we strongly recommend that the US Department of Transportation reject ST-1 and any documents that incorporate it.

No international agency or government has officially made effective ST-1, now renamed TS-R1, to our knowledge. Although the International Maritime Organization (IMO) is allowing voluntary implementation as of January 1, 2001, that is insufficient reason to incorporate highly objectionable provisions into the United States regulations, essentially immediately. IMO will not officially require compliance until 2002. The International Civil Aviation Organization (ICAO) and European modal organizations are not making ST-1 effective until July 2001, at the earliest.

If DOT fails to reject the ST-1 and related provisions in its proposed rule, it will be leading the international way to adopting radioactive transportation standards that :

1. the public doesn’t even know about, but for whom there could be significant impact;

There has been no meaningful public notification, education or involvement in the development or acceptance of these regulations for international commerce.

2. are being adopted by reference without reasonable public access to the documents or to accurate summaries;

In the DOT proposed rule, the changes are repeatedly mis-characterized as being "insignificant," despite having potentially major health, environmental and economic impacts in practice.

3. weaken public protection and existing requirements in many ways [including but not limited to exempting radioactive wastes and materials from DOT regulation, weakening already-inadequate criteria for Type B (irradiated fuel and high level radioactive waste) containers]; and weakening them at a time when the amount of material and shipments projected are dramatically increasing in the US and internationally;
4. preempt existing state and local laws and regulations;

Even though this specific DOT proposed rule is for international commerce, the DOT’s adoption of ST-1 and ST-1-containing documents, will impact shipments in the US that are part of international shipments and will set the stage for domestic adoption of the same standards, as is planned this Spring 2001.

5. are being adopted effective January 1, 2001 (or as soon as they can be published in the Federal

Register thereafter) despite

1. less than one full work week for comments to be evaluated and taken into consideration by DOT personnel and management,
2. the fact that the international agencies with whom we are supposedly "harmonizing" do not require their implementation until mid 2001 and early 2002.
3. The fact that US can have difference with the international standards and DO have some currently and propose some. Whatever DOT adopts, it should refuse to accept new or increased exemption and weakening of radiation protection requirements.

PREEMPTION in the US

The US should not succumb to international pressures to weaken existing protections.

Further we should not adopt international provisions that will supercede or preempt state and local authority and existing laws.

There are 16 states and numerous local governments that are exercising their authority to require continued regulatory control over radioactive wastes and materials that have been deregulated or exempted from regulatory control by other entities. DOT’s adoption of exempt concentrations and quantities would conflict with those state and local legislative and regulatory requirements. Because DOT regulations expressly preemption state and local laws and regulations, the adoption of the exemption values could preempt existing laws and regulations.

EXEMPTIONS

Congress revoked the US Nuclear Regulatory Commission’s efforts to adopt exemptions—referred to as BRC or Below Regulatory Concern. The US Department of Energy, realizing the massive public opposition to deregulating radioactive materials has halted the release of even suspected-radioactively contaminated metals. The US Environmental Protection Agency decided not to set standards that would legalize reclassifying radioactive materials as "not radioactive," partly due to the public opposition, partly due to the lack of necessity. DOT, by adopting the ST-1 Table 1 exemptions, is codifying, for the first time into the US regulations, BRC-type numbers. The concentration numbers in column 3 of table 1 were developed by IAEA precisely for the radioactive "clearance" or release and "recycling" into commerce of radioactive materials from nuclear power, weapons, and fuel chain facilities.

NIRS does not endorse the existing 70 becquerel per gram concentration exemption level, however, we oppose any INCREASE in the exempt concentration levels. ST-1’s Table 1 column 3 which sets out radionuclide-specific exempt concentration for hundreds of radionuclides actually increases over 2/3 of the exempt concentration to greater than 70 bq/g, some by several orders of magnitude! For the much smaller number of radionuclides whose exempt concentrations go down below 70 bq/g, we would not object to tightening the regulations.

We question the practical ability to enforce the existing 70 bq/g exempt concentration limit. It appears much more difficult and expensive to actually verify hundreds of radionuclide-specific concentrations and to use the "rule of the fractions" to accurately enforce these levels. Even the US Department of Energy has voiced its concern about the "cost increases in… categorizing/classifying materials and wastes, revision of handling and operating procedures, radiation protection for employees, retraining …hiring additional employees, regulatory compliance… and transportation" if radionuclide-specific exemption levels are adopted. DOE estimated it would cost $600,000,000 to $4,000,000,000 to incorporate radionuclide –specific levels into their programs for scrap metal.

Criticism of the exemption provisions have been voiced in the past, but have not been heeded.

For example, the National Institute of Standards and Testing comments to DOT in April 2000, criticized the proposed new definition of "contamination" to apply only above a set level (.4 bq/sq cm) even if there is radioactivity below that level. NIST stated that "denying that such surfaces are contaminated creates credibility problems in terms of the common sense understanding of the term, even amung the technical community." NIRS opposes the "liguistic detoxification" that DOT is bringing into the US Code.

The DOT is re-classifying some radioactive materials as "not

radioactive" for transportation purposes. By exempting some of every

radionuclide from regulations and labeling, DOT is enabling radioactive

material to enter the marketplace and daily-use items and raw materials.

The US Department of Transportation (DOT), as of January 1, 2001, is

adopting, by reference, International Atomic Energy Agency (IAEA)

-suggested regulations, ST-1, that include

NEW EXEMPTIONS OF RADIOACTIVE MATERIALS AND WASTES from labeling and

regulation and other

WEAKENING OF NUCLEAR TRANSPORT REQUIREMENTS.

Two new columns are being added to the chart of radionuclides (isotopes

of radioactive elements). Column 3 lists Exempt Concentrations. These

are the very same concentrations that the nuclear establishment is

trying to get adopted in every country to allow radioactive waste

release and recycling. US DOT and the rest of the world all currently

have a uniform exempt concentration for any radioactive materials (70

becquerels per gram). NIRS does not support any level of exemption, but

this is the existing world value. Now, based on "science," the nuclear

establishment wants to change these numbers-and well over half of them

GO UP, thereby increasing the exempt concentrations for the majority of

radionuclides. NIRS questions and challenges the "science" being used to justify ST-1 exemptions.

In addition, Column 4 has been added to exempt given amounts or

quantities of radioactive materials in entire shipments. There are no

exempt amounts currently in the DOT or international codes. There should

be NO EXEMPT AMOUNTS added to these tables. Further, the amounts listed

appear to have the potential to result in doses near or exceeding

allowable worker inhalation doses in the US. (Internationally, workers

are limited to lower doses than in the US.)

There are interagency references between DOT and NRC, such that exemptions made by DOT could apply more comprehensively than considered by DOT in its adoption of definitions, concentrations, exempt amounts, and other provisions. The practical implementation will have greater impact than on DOT alone.

TYPE B CONTAINERS

We oppose any weakening or reduction in the requirements for Type B containers, which are used to transport irradiated fuel. In fact, for years, public interest groups and local and state governments have been calling for more rigorous criteria and actual cask testing. In ST-1 and, thus, DOT’s proposed rule, Type B container requirements are being weakened. This lowering of criteria is being considered at the same time that concern is growing that fuel damage can occur at considerably lower temperatures than previously assumed. It is now understood that if casks lose their inert atmosphere, cladding damage can occur at temperatures as low as about 600 to 800 degrees F, considerably lower than the 2,200 degrees F used in operating reactor analyses, and a range that is quite possible in transport scenarios.

OTHER ST-1 CONCERNS include

Weakening of requirements for uranium hexafluoride packaging

Type C containers and Low Dispersible Material

Weakening plutonium transport requirements

Grandfathering

Definitions

Process

NIRS opposes the adoption of UN Recommendations, ICAO, IMDG, ST-1, because of the specific provisions of ST-1.

Regarding these and the other documents being adopted by reference, we request copies be made easily publically available of :

-> International Civil Aviation Organization Technical Instructions

(ICAO TI) 2000-2001 edition

-> International Maritime Organization Dangerous Goods Code (IMDG Code)

Amendment 30

-> UN Recommendations - 11th revised edition

-> UN Manual of Tests and Criteria- Third revised edition

-> International Atomic Energy Agency (IAEA)'s "Regulations for the Safe

Transport of Radioactive Material No. ST-1," 1996 edition NOW RENAMED TS-R1

-> IMO's "International Code for the Safe Carriage of Packaged

Irradiated Nuclear Fuel, Plutonium and High-Level Radioactive Wastes on

Board Ships' (INF Code)--which is being made mandatory for

international transport as of Jan 1, 2001 through an amendment to

Chapter VII of the International Convention for the Safety of Life at

Sea, 1974

3 standards of the International Organization for Standardization (ISO):

->"ISO 1496--3 Series 1 freight containers--Specification and testing,"

1996 edition

->"ISO 4126-1 Safety valves-Part 1: General Requirements," 1991 edition

-> "ISO 6892 Metallic materials-Tensile testing," 1984 edition.

->American Society for Testing Materials (ASTM) "E112-96 Standard for

Test Methods for Determining Average Grain Size"

RE Adoption of the UN Manual of Tests and Criteria,

The following organizations formally requested a 6-month extension on the comment periods for the Nuclear Regulatory Commission and Department of Transportation proposed adoption of all or part of the UN IAEA ST-1 standards, including the HM 215-D rulemaking, and any proposals in addition to the IAEA issues. They have requested, of both DOT and NRC, availability to all pertinent documents followed by six months from that time to review them. That request is being submitted, separately, to the HM 215-D Docket # RSPA-00-7702.

Nuclear Information and Resource Service/

Comments Prepared by Diane D’Arrigo, Nuclear Information and Resource Service