8.
City Council Work Session
- Meeting Date:
- 10/10/2017
- Co-Submitter:
- Sterling Solomon
- From:
- Caleb Blaschke, Assistant to the City Manager
TITLE
Uranium Transportation Update.
STAFF RECOMMENDED ACTION:
Council Discussion.
EXECUTIVE SUMMARY:
Background:
On June 6, 2017 the City of Flagstaff received a petition asking Council to: 1) Establish a resolution to oppose transport of uranium ore and other radioactive materials from Canyon Mine to the White Mesa Mill near Blanding Utah; or, 2) Explore creation of an ordinance opposing transport of uranium ore through Flagstaff roadways. The petition was brought before Council on July 5, 2017. At that meeting, Councilmembers Putzova and Barotz requested Uranium transportation through Flagstaff be discussed as a Future Agenda Item. Below is staffs response on whether the City of Flagstaff has jurisdiction over the transport of uranium within City limits.
Overview:
Federal law preempts cities from specifically regulating the transport of uranium, unless federal legislation delegates such regulatory authority. Cities may in some cases designate alternate or preferred routes for the transport of hazardous materials such as uranium, however. Cities also have responsibility for responding to emergencies involving hazardous materials.
The federal government exercises general preemption over state and local governments in the regulation of transportation of radioactive materials and waste. The authority to do so is primarily contained in Article VI, paragraph 2 of the United States Constitution, commonly referred to as the Supremacy Clause; the Atomic Energy Act of 1954, 42 U.S.C. § 2011, et seq (“AEA”); the Hazardous Materials Transportation Act, 49 U.S.C. § 1801, et seq (“HMTA”); the Energy Reorganization Act of 1974 which established the Nuclear Regulatory Commission, 42 U.S.C. § 5841, et seq; and the Federal Railroad Safety Act, 45 U.S.C.§ 431, et seq.
While additional research is being performed by legal it currently appears no exceptions allow the City to attempt to regulate the transport or containment of uranium because under the Atomic Energy Act, the federal government occupied the entire field of nuclear safety so that most state and local efforts concerning nuclear safety are preempted. In Pacific Gas and Electric Co. v. State Energy Resources Conservation and Development Comm’n, 461 U.S. 190, 212, 103 S.Ct. 1713, 1726 (1983), the United States Supreme Court held that the federal government has occupied the entire field of nuclear safety concerns, except for limited powers that are expressly delegated to the states. Any state (or municipal) regulation which is inconsistent with federal law in the field of nuclear materials is preempted because of the Supremacy Clause of the U.S. Constitution. Jersey Central Power and Light Company v. Township of Lacey, 772 F.2d 1103, 1110 (3rd Cir. 1985).
The Hazardous Materials Transportation Act preempts state and municipal regulations concerning hazardous materials, including radioactive materials. The federal Department of Transportation has determined that any delay in transportation may reduce safety, and therefore such regulations are preempted. The Arizona Department of Transportation (“ADOT”) regulates radioactive material, including uranium, as a hazardous material. See: ADOT, Arizona Commercial Driver License Manual, Hazmat Section 9. In some cases, states or municipalities may require carriers transporting radioactive material to use major city thoroughfares or designate alternate routes, as long as the requirements are not inconsistent with federal law. States and cities may apply “rule of the road” restrictions that apply to all vehicles to hazardous materials vehicles without being inconsistent with federal law. In addition, if the routes to be utilized by trucks transporting uranium through the City of Flagstaff are state routes, ADOT would have primary authority over them and ensuring their safety.
Because federal law generally preempts cities from specifically regulating the transport of uranium, it appears the City may not prohibit the transport of uranium on city streets. However, the City may in conjunction with ADOT address the transport of uranium in the same way other types of hazardous materials are addressed. The City may also be able to designate preferred routes to be taken by trucks transporting uranium ore from the mines to out-of-state processing plants and additional conversations with ADOT and the Arizona Attorney General's are underway on this subject.
The United States has an agreement with the International Atomic Energency Agency (IAEA), implemented through 10 CFR Part 75, that covers uranium processing facilities and mines. Material accounting and control information is collected by the covered facilities through the USNRC, and the facilities are subject to inspection by IAEA personnel on an ad hoc, routine, or special inspection basis (10 CFR § 75.8).
Packaging design requirements are regulated by the USNRC, and it has responsibility for establishing requirements for the design and manufacture of packages for radioactive materials (10 CFR Part 71) The U.S. Department of Transportation (USDOT) regulates shipments while they are in transit, and sets standards for labeling and smaller quantity packages in accordance with their hazardous contents.
On June 6, 2017 the City of Flagstaff received a petition asking Council to: 1) Establish a resolution to oppose transport of uranium ore and other radioactive materials from Canyon Mine to the White Mesa Mill near Blanding Utah; or, 2) Explore creation of an ordinance opposing transport of uranium ore through Flagstaff roadways. The petition was brought before Council on July 5, 2017. At that meeting, Councilmembers Putzova and Barotz requested Uranium transportation through Flagstaff be discussed as a Future Agenda Item. Below is staffs response on whether the City of Flagstaff has jurisdiction over the transport of uranium within City limits.
Overview:
Federal law preempts cities from specifically regulating the transport of uranium, unless federal legislation delegates such regulatory authority. Cities may in some cases designate alternate or preferred routes for the transport of hazardous materials such as uranium, however. Cities also have responsibility for responding to emergencies involving hazardous materials.
The federal government exercises general preemption over state and local governments in the regulation of transportation of radioactive materials and waste. The authority to do so is primarily contained in Article VI, paragraph 2 of the United States Constitution, commonly referred to as the Supremacy Clause; the Atomic Energy Act of 1954, 42 U.S.C. § 2011, et seq (“AEA”); the Hazardous Materials Transportation Act, 49 U.S.C. § 1801, et seq (“HMTA”); the Energy Reorganization Act of 1974 which established the Nuclear Regulatory Commission, 42 U.S.C. § 5841, et seq; and the Federal Railroad Safety Act, 45 U.S.C.§ 431, et seq.
While additional research is being performed by legal it currently appears no exceptions allow the City to attempt to regulate the transport or containment of uranium because under the Atomic Energy Act, the federal government occupied the entire field of nuclear safety so that most state and local efforts concerning nuclear safety are preempted. In Pacific Gas and Electric Co. v. State Energy Resources Conservation and Development Comm’n, 461 U.S. 190, 212, 103 S.Ct. 1713, 1726 (1983), the United States Supreme Court held that the federal government has occupied the entire field of nuclear safety concerns, except for limited powers that are expressly delegated to the states. Any state (or municipal) regulation which is inconsistent with federal law in the field of nuclear materials is preempted because of the Supremacy Clause of the U.S. Constitution. Jersey Central Power and Light Company v. Township of Lacey, 772 F.2d 1103, 1110 (3rd Cir. 1985).
The Hazardous Materials Transportation Act preempts state and municipal regulations concerning hazardous materials, including radioactive materials. The federal Department of Transportation has determined that any delay in transportation may reduce safety, and therefore such regulations are preempted. The Arizona Department of Transportation (“ADOT”) regulates radioactive material, including uranium, as a hazardous material. See: ADOT, Arizona Commercial Driver License Manual, Hazmat Section 9. In some cases, states or municipalities may require carriers transporting radioactive material to use major city thoroughfares or designate alternate routes, as long as the requirements are not inconsistent with federal law. States and cities may apply “rule of the road” restrictions that apply to all vehicles to hazardous materials vehicles without being inconsistent with federal law. In addition, if the routes to be utilized by trucks transporting uranium through the City of Flagstaff are state routes, ADOT would have primary authority over them and ensuring their safety.
Because federal law generally preempts cities from specifically regulating the transport of uranium, it appears the City may not prohibit the transport of uranium on city streets. However, the City may in conjunction with ADOT address the transport of uranium in the same way other types of hazardous materials are addressed. The City may also be able to designate preferred routes to be taken by trucks transporting uranium ore from the mines to out-of-state processing plants and additional conversations with ADOT and the Arizona Attorney General's are underway on this subject.
The United States has an agreement with the International Atomic Energency Agency (IAEA), implemented through 10 CFR Part 75, that covers uranium processing facilities and mines. Material accounting and control information is collected by the covered facilities through the USNRC, and the facilities are subject to inspection by IAEA personnel on an ad hoc, routine, or special inspection basis (10 CFR § 75.8).
Packaging design requirements are regulated by the USNRC, and it has responsibility for establishing requirements for the design and manufacture of packages for radioactive materials (10 CFR Part 71) The U.S. Department of Transportation (USDOT) regulates shipments while they are in transit, and sets standards for labeling and smaller quantity packages in accordance with their hazardous contents.
INFORMATION:
Council Goals: Social Justice.