L.B. Finds Law Won’t Back Fuel-Rod Ban : Mayor Says City Can’t Bar Shipments, but Has Right to Insist on Safety

This city does not have the legal authority to prohibit federal shipments of highly radioactive nuclear waste through its port, Mayor Ernie Kell said Tuesday.

“We will not challenge their authority on a legal basis,” Kell said following a briefing of the City Council by City Atty. John Calhoun. “I don’t think if they say they’re coming through, we could interfere with interstate commerce.”

Kell said, however, that the city does have the right to insist that the shipments are handled safely. “And I doubt very much that they can satisfy all of our concerns and fears,” he said.

Calhoun declined comment on whether the city could stop shipments of spent fuel rods the U. S. Department of Energy wants to bring to Long Beach beginning in late March.

In a previous interview Calhoun had said, “I never concede that a case is on all fours until I’m absolutely convinced that it’s on all fours.”

‘Very Limited Authority’

But City Councilman Tom Clark, who also attended Calhoun’s Tuesday briefing, said: “There’s no question that we have very limited authority. How limited remains to be seen.”

Harbor commissioners, who also met with Calhoun this week, said they remained uncertain about their legal right to reject the nuclear cargo.

Citing public concern about safety, James McJunkin, port executive director, notified the Energy Department two weeks ago that he would not allow 18 shipments of used fuel from an experimental nuclear reactor in Taiwan to be unloaded here for trucking to South Carolina for reclamation.

McJunkin said city ordinances give the Long Beach the right to stop the cargo. He was backed by the City Council and the Harbor Commission.

Energy Department officials disagreed with the city’s position, saying that they did not need local permission to bring the nuclear waste through the port. But they say they haven’t yet decided whether to force the issue here.

Kell emphasized that the City Council continues to oppose the shipments. The mayor said he personally does not want the nuclear rods in Long Beach and doubted whether the Energy Department would force them through the city. To do so, he said, “would be a pretty blatant exercise of authority.”

Meanwhile, city and port officials have agreed to meet with the Energy Department next week in a public session to discuss safety and technical aspects of the shipment plan. The meeting will be held at 2 p.m. Thursday at the Harbor Department offices.

Federal officials have “wanted to come out and conduct these educational meetings,” McJunkin said. “I think this meeting will emphasize the safety data.”

“We need to get more information and see if maybe this is an issue we can reconcile,” Clark said. “It has been very frustrating not knowing more about the specific proposal. The federal government has really been very secretive.”

Even before Kell’s comments about the city’s legal position, there were indications that it would be difficult for the city-run port to refuse to unload the federal cargo.

Calhoun acknowledged in an interview on Friday that cities and states generally have been unsuccessful when challenging the federal law that governs transport of hazardous materials and preempts inconsistent state and local regulations.

Specifically, Calhoun said he was aware of an unsuccessful 1981 attempt by New York City and the State of New York to keep the Energy Department from shipping spent fuel rods from a Long Island laboratory through the streets of Manhattan.

In that case, local laws had prohibited the shipments through such a densely populated area. But they were eventually allowed under the Hazardous Materials Transportation Act, which was passed by Congress in 1981 to eliminate confusion caused by dozens of local and state statutes that controlled shipment of toxic wastes. New York City won in federal district court but lost on appeal, and the U. S. Supreme Court refused to hear the case in 1984.

But Calhoun said there may be important differences between the New York case and the situation in Long Beach.

Concern Over Disruption

“One thing the port is extremely concerned about is the amount of disruption of the normal activity of the port and the city if this type of shipment does occur,” Calhoun said.

McJunkin said disruption of port activity would seem likely if the shipments come through.

“Given the excitement and rejection of this by the community, we would certainly have to believe there would be sizable demonstrations,” he said. “And if you look at the port, about 10 people could lay down on the freeway and the whole port would stop.”

Disruption could come, too, if local longshoremen refuse to handle the nuclear cargo, McJunkin said. Local 13 of the International Longshoremen’s and Warehousemen’s Union has asked its international unit to oppose the unloading of nuclear rods at any West Coast port.

“And certainly, the notoriety makes this a terrorist target,” McJunkin said.

He allowed, however, that the shipments themselves would not disrupt port business. “We would not have to create a special environment,” he said. “There would be inspections and precautions, but we wouldn’t need any more physical gear.”

McJunkin said he had talked with officials at the port in Portsmouth, Va., which has handled Energy Department fuel rod shipments for many years. “They explained that the handling was routine,” with the 15- to 25-ton shipping casks moved by the same cranes that unload other types of containerized cargo, he said.

Whatever the city’s legal strategy, it faces an uphill battle in trying to stop the fuel rod shipments, said several attorneys who have handled cases where federal law has overridden local regulation.

“Frankly, I suspect it’s going to be difficult for the state or local governments to regulate this,” said Anthony Summers, a deputy attorney general who, as counsel to the California Coastal Commission, has dealt with preempting federal law.

“The situation is very clear-cut if Congress acts and says, ‘We have control here,’ ” Summers said. “If that happens, that takes care of it. . . . And, generally speaking, the federal government has taken sole jurisdiction over questions dealing with hazardous waste and nuclear material.”

Attorneys who handled the 1981 New York City case also said there is little room to challenge federal transportation law.

“Congress had the power to preempt local rules; we didn’t challenge that,” said Ezra Bialik, assistant New York state attorney general.

New York attorneys did argue that the Department of Transportation rule regulating the Energy Department’s spent fuel shipments violated the very federal law under which it was drafted.

“The Hazardous Materials Transportation Act was enacted by Congress to further safety, and the federal government was using it to reduce safety,” Bialik said.

Second, the attorneys insisted that a 1970 federal law required a detailed environmental impact statement on the New York shipments because an accident could cause death and billions of dollars in damage.

Neither argument prevailed.

“I think the most (Long Beach) can do is to delay the shipments and make sure the safest route and mode of shipment are followed,” said Barry Schwartz, a lawyer for New York City in the 1981 case. “I don’t think anybody has been successful in actually stopping these shipments.”

Long Beach, however, can act in several ways to make sure the shipments are as safe as possible, said Marvin Resnikoff, a nuclear physicist for the Sierra Club’s New York-based Radioactive Waste Campaign.

Some states have gained concessions from shippers of waste, he said. For example, Pennsylvania receives $1,000 for each cask of fuel rods routed through it, with the money going to train and equip emergency units which would handle a spill of the nuclear material, he said.

States also have a hand in selecting the route of the cargo and could mount a challenge to shipments if they can show that federal officials have not chosen the safest route for it, Resnikoff said.

Long Beach could also follow the path of New York City in successfully demanding that federal officials calculate the probability of a catastrophic accident involving the fuel rods, he said. (Federal officials estimated in the New York case that a major accident or sabotage serious enough to cause deaths and extensive property damage would occur only once in every 300 million years because of the durability of the steel-and-lead shipping casks. No radioactive material has ever leaked from casks carrying spent nuclear fuel, federal officials say.)

Another strategy could be researched, Resnikoff said. The city could demand in court that the federal government provide $2 billion to $3 billion in liability insurance to protect against a catastrophic accident. The federal government’s own studies found in the New York case that such an accident might cause $2 billion in damage, he said. The Energy Department has only $500 million in liability insurance, he said.

“I think (an insurance demand) would be extremely difficult for the DOE to counter,” Resnikoff said. “And it would definitely throw the whole thing into court and leave it there for several years.”

Aside from legal arguments, McJunkin and others opposed to the shipments said, they hope and suspect that Department of Energy officials may back away from the Long Beach route to avoid more controversy.

“I have a feeling this may all end up being less of a legal issue and more of a political one,” said Steven Aftergood of the Committee to Bridge the Gap, an anti-nuclear group based in Los Angeles.

“Does the Department of Energy want to force this stuff down people’s throats even though it’s going to be a front-page issue up and down the coast,” he said, “or will they want to take an alternative path?”