ML17305B491

Forwards 890222 Commission Approved Policy Statement of Cooperation W/States Re 910107 & Concerning Generating Station.Az Corporation Commission Denied Permission to Attend Enforcement Conferences

ML17305B491
Person / Time
Site:	Palo Verde
Issue date:	04/25/1991
From:	Martin J NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION V)
To:	Yaquinto G ARIZONA, STATE OF
References
NUDOCS 9104300147
Download: ML17305B491 (24)

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UNITED STATES NUCLEAR REGULATORY COMMISSION REGION V 1450 MARIA LANE,SUITE 210 WALNUTCREEK, CALIFORNIA94596 APR 25 1991 Gary Yaquinto Director, Utilities Division Arizona Corporation Commission 1200 West Washington Phoenix, Arizona 85007

Dear Mr. Yaquinto:

We have reviewed your letters dated January 7 and April 9, 1991 concerning the Palo Verde Nuclear Generating Station (Palo Verde).

In the first letter, you requested that a technical member of the Arizona Corporation Commission (ACC) staff be allowed to attend meetings that the Nuclear Regulatory Commission (NRC) holds with representatives of Arizona Public Service

Company, as related to activities at Palo Verde.

We in the NRC recognize the Corporation Commission s interest in Palo Verde, and it is our intent to cooperate with the ACC, to the extent appropriate, to satisfy your described needs.

In the interest of fostering cooperation, on February 22, 1989, the Commission approved a Policy Statement on Cooperation with States (copy enclosed).

In accordance with the Policy Statement, representatives from the ACC are welcome to attend all public meetings we hold with Palo Verde, including Systematic Assessment of Licensee Performance (SALP) meetings and the Region V

quarterly Licensee Management Meetings.

We will alert the State to these meetings so that ACC representatives will have an opportunity to attend, if desired.

Certain NRC meetings such as enforcement conferences and inspection entrance and exit meetings with NRC licensees are not open to the public.

The Commission's Policy Statement provides that State representatives may partici-pate in inspection entrance/exit meetings only if there is a written State/NRC agreement or Memorandum of Understanding (MOU) developed through the State Liaison Officer (SLO) satisfying the criteria described in that Policy Statement.

In particular, it allows for stIch attendance where State representatives have assisted the NRC in the inspections leading to those meetings.

The NRC policy to restrict attendance at enforcement conferences and inspection exit meetings was established to encourage NRC licensees to be completely candid and self-critical.

In our view, this candor is essential to our safety mission, and we are concerned that completely candid and self-critical dialogue may be hindered by the presence of a licensee's economic, regulator.

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APR 85 199l Notwithstanding the policy to have closed enforcement conferences, the Commission's Policy Statement permits State representatives to attend enforcement conferences where information relevant to an enforcement action is obtained by a State representative during an inspection under a State/NRC inspection agreement.

In addition, when other special circumstances

warrant, the Director, Office of Enforcement, may authorize the Regional Administrators, on a case-by-case

basis, to permit State personnel to observe an enforcement conference.

Whether to allow State personnel to observe an Enforcement Conference would depend on whether they might further the purpose of the conference by providing special information or insight.'or example, attendance might be appropriate where the enforcement action involves naturally occurring radioactive material or an entity holding an Agreement State specific license and an NRC general license.

However, normally the attendee from the State is expected to be from an office of operational or radiation safety and not from a rate-setting office.

It is important to emphasize that the factual information which forms the basis for holding an enforcement conference is normally'provided to the SLO and the ACC in advance of the conference by way of the inspection report.

In addition, after the conference, the NRC provides the State a brief summary of the conference that includes handouts provided by the licensee.

Finally, the resulting enforcement action and associated correspondence is provided to the State.

In view of the above, I

am not granting ACC representatives permission to attend enforcement conferences.

In addition, I have no basis to grant a

general authorization for State personnel to attend other closed meetings.

However, this office will consider observation of specific enforcement conferences and other closed meetings by appropriate, knowledgeable personnel on a case-by-case

basis, consistent with the Policy Statement, where there are compelling circumstances arguing for such observation.

With respect to your request to be briefed on the safety of Palo Verde, I have directed my staff to contact you.

If you have any questions with regard to this response or desire to meet to further discuss the issues that have been raised, please contact Roy Zimmerman of my staff.

Sine

ely, o

B. Martin Regional Administrator

Enclosure:

Policy Statement on Cooperation with States

II I

POLICY STATEMENTS0 ENCLOSURE 1

54 FR 7530 Published 2/22/89 Eifcctlve 2/22/89 10 CFR Part 50 Cooperation With States at Commercial Nuclear Power Plants and Other Nuclear Production or Utilization Facilities; Policy Statement ADENcv: Nuclear Regulatory Commission.

AOTIDN:Final policy statement, stIMMARY:The Nuclear Regulatoty Commission (NRC) believes that tire agency's mission to protect the public health and stifety and the environment can best be served by a policy of cooperation with State governments which unites the common goals of the NRC and the States. In accordance with this policy statement. the NRC willkeep Governor-appointed State Liaison Ofliccrs routinely informed on matters of interest to the States, and NRC will respond in a timely manner to State requests for information and State recommendatiuns concerning matters within NRC's regulatory jurisdiction. If requested.

the NRC willroutinely inform State Liaison Officers of public meetings between the NRC and its licensees and applicants. In order that State representatives may attend as observers, and NRC willallow State observation of NRC hispcction activities. The NRC willconsider State proposals to enter into instruments of cooperation for Slate participation in NRC inspection aclivities when ihese programs have provisions to ensure close cooperation with NRC. The NRC willnot consider State proposals for instruments of cooperation to conduct inspection programs of NRC-regulated activities without close cooperation with, and oversight by, the NRC. This policy statement is intended to provide a uniform basis for NRC/State cooperation Iis it relates to the regulutory oversight of commercial nuclear power plants and other nuclear production or utilization facilities.

Instruments of cooperation between the NRC and the States, approved prior to the effeclive date of this policy statement willcontinuo to be honored by the NRC.

EFFEcTIV8 DATE:February 22. 1989.

FOR FURTHER INFORMATIONCONTACTI Carlton C. Kammerer, Director for State, Local and Indian Tribe Programs, Office of Governmental Affairs. U.S. Nuclear Regulatory Commission, Washington, DC 20555, Telephone: (301) 492-0321.

SUPPLEMENTARV INFORMATION:

I. Background The Atomic Energy Act of 1954 (the Act) was amended in 1959 to add section 274. "Cooperation With States."

Section 274 of the Act provides the statutory basis for NRC/State cooperation in nuclear matters and prescribes the framework for State regulation of certain nuclear materials.

Thc focus of section 274 is primarily on protecting the public from radiological hazards of source. byproduct, and special nuclear materials below critical mass. Under section 274. the Federal Government, primarily NRC, is assigned exclusive authority and responsibility to regulate the radiological and national security aspects of the construction and operation of any nuclear production or utilization facility. except for certain authority over air emissions later granted to States by the Clean AirAct.

The NRC has had extensive formal and informal interaction with the States throughout its history. The Agreement State Program, under section 274b of the Act. is an example of a formal program where the NRC relinquishes its regulatory authority over certain radioactive materials to the States.

There are currently 29 Agreement States

"'egulating approximately 65 percent of those licensees nationwide that use or manufacture those types of radioactive material. The Agreement State Program operates under two Commission Policy Statements.

one for'eritering into seclion 274b agreements and one for periodically reviewing Agreement State radiatiun control programs for adequacy in protecting public health and safety and for compatibility with NRC

'rograms.

This policy statement supports continuation oF the'Agreement State Program and is not meant to affect it.

This policy statement is not intended to affect rights to notice and to participate in hearings granted to States by statute or NRC regulations.

Under 10 CFR Part 9, Subpart D. the NRC has provided procedures for handling requests for an NRC representative to participate or provide information in judicial or quasi-judicial proceedings conducted by States or other courts and agencies. This policy statement supports these procedures and does not affect them.

Under 10 CFR 50.SSa. the NRC has recognized the role of thc States within the Amcriccn Society ofMechanical Engineers Boiler and Pressure Vessel Code (ASME Code) System. This policy statement does not affect thc State and NRC relationship as laid out in the ASME Code.

The State Liaison Officer Program, established in 1976. provides a focal point in each of the 50 States and the Commonwealth of Puerto Rico for communication between NRC and the States. The Governor-appointed State LiiiisonOfficer is intended to bc the principal person in the State to keep the Governor informed of nuclear regulatory matters of interest to the Governor. to keep other State officials informed of these matters, and to respond to NRC inquiries.

Other areas in which NRC and States have worked together include environmental monitoring around the premises of nuclear power plant facilities and participation in the Conference ofRadiation Control Program Directors. Inc., which addresses radiological health in areas such as diagnostic and therapeutic X-rays.

radioactive materials, and other related activities.

Under. subsection 274l of the Act. the Commission is authorized, in carrying out its licensing and regulatory responsibilities to enter into a Memorandum of Understanding (MOU) with any State to perform inspections or other functions on a cooperative basis as the NRC deems appropriate.

According to the legislative history of section 274. subsection 274i clarifies the Commission's existing authority under subsection 161f which enables the NRC to obtain the services of Stale personnel to perform functions on its behulf as may be desirable.

NRC has entered into MOUs with several States under. subsection 274i of the Act. MOUs have helped to facilitate environmental review during construction of nuclear power plants. At one point. there was a perceived need to broaden the basis, for formal cooperative instruments with States under subsection 274i beyond that of water quality MOUs. As a resu) t. general or "umbrella" MOUs were negotiated, with subagreements on specific issues such as low-level waste package and tr;insport inspections. Two unique agreements were negotiated with Oregon; one concerning the sharing of proprietary information regarding the Trojan facilityand the other covering coordination of the State and NRC PS-P R.83 April28, 1989 (reset)

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POLICY STATEMENTS r< sidcnt inspector programs at 'frojan.

Additionally. the NRC has documented the protocol that States must follow to be permitted to observe cert<tin NRC activities in "letter agrcctnents."

In recent years. States have <uk<:n tbc initiative to monitor more closely commercial nuclear power plants und other nucleet production or utiliztttinn facilities within, and adjnccnt to. their State bounrlaries by becoming better informed and, in some cases, mote involved in activities related to the regulation and operation of those facilities. It was this increased interest by States to become more urtively involved in NRC activities that caused tbe NRC to re.cxamlnc those agreements previously negotiated with States and to determine a uniform policy f<tr how further State proposals should be handled. In developing this policy statcmcnt to bc used to respond to future Stale proposals, the Commission, recognizing that the tcgulutory responsibilities assigned exclusively to the NRC by the Act cannot be delegated, has considered: (1) Those activities it deems appropriate for States to conduct on a cooperative basis and are desirable for State personnel to perform on behalf of the NRC: and (2) its oversight responsibility to ensure that NRC standtirds. regulations. and procc<lures are mct where State represcntativcs carry out NRC functions. Further. it is the Commission's intention to provide uniformity in its handling of State rcquesls.

II. Summary of Comments ttttd NRC

Response

On June 13. 1988. the Commission's Policy Staten<ant on Cooperatinn with States at Commercial Nuclear Power Plants and Othe~ Nuclear Produrtion or Utilization Facilities was published in thc Federal Register for public contm'cnt (53 FR 21981.) The comment period expired July13,1988. In the Federal Register notice. the Commission stated that thc "proposed policy willbe followed in the interim, exrept for those paragraphs in thc policy statement and Implementation section dealing with State proposals for instruments of cooperation for participation in inspectinns and inspection entrance and exit meetings. The Commission willnot act on these specific types of Slate proposed instruments of coopt.ratiun until the corn<nant period expires anti the policy statement is published as a fin <1 pohry statement."

I'hu NR(: received 28 letters of comment; fourteen from members und representatives of the nucleur paw<.r industry, including electric utilities aud

'lletr counsel. thirteen from various State offices and one from a public interest group.

Stnle Commer<ts Most of the State offices expressed support for the NRC's policy "to rouperate fullywith State governments as they seek to respond to the expectations of their citizens that their health and safety be protected and that there be minimal impact on the environment as a result ofactivities licensed by Ihe NRC." In the opinion of these States. the NRC policy statement would. a<nong other things. enable the NRC to malt<tain uniformity in its relations with all the States. strengthen Federal State cooperation, reduce duplication of effort. encourage the development of a unified NRC(State position on matters of joint concern.

avoid the perception of dual regulation und Improve nuclear safety. By giving "host" States. i.e., States in which an NRC licensed facilityis located. a greater opportunity to participate with NRC in matters involving the use of radioactive materials. including the use of those materials in nuclear power reactots located within the State. States would become better informed about the doy.to.day activities of NRC licensees.

With the opening of these avenues of communication. NRC licensccs would be made more aware of State concerns in reletod areas.

Two States stated thol they are prepared to entur into a joint inspection program with NRC at this time. One State expressed no immediate Interest but indicated that it might wish to participate in such e program in thc future. This State was supportive of the six conditions specified in the Policy Statement as prerequisltes to Stale participation in NRG inspections and inspection entrance and exit meetings in accordance with the provisions of an instrument of cooperation entered into with NRC. One State indicated that it would appreciate routine notification of NRC inspcctiun activities and public meetings affecting tlie Stdte. One State supportedwhile another State oppctsed, independent State inspections of federallyrcgulated facilities. Thc stated reasons for opposing such inspections were that they would confuse the regulated sector and would require the expenditure of scarce State resources in an urea in which there is already ttdequttte Federal enforce'ment. Noting the possible difficultyof securing needed funda for such inspections. one State recommended that the policy statement include suggested means of funding State inspections.

Noting that State needs for interaction with NRC arc cspncially important in areas which are substan>tially affected by NRC actions but for which the State has central responsibility (e.g., rate-making.'mergency preparedness.

environmental protection) several States expressed concern regarding thc extent to v hicb their differing needs and responsibilities would be accommodated under the NRC policy.

Some States expressed the view th;<I because ofdiffering nature of State responsibilities. States might find it diff<cult to qualify for a Federal(St<tte instrument of cooperation. One State suggested that the policy statentcnt affirmatively recognize "the value of cooperation between the NRC and the Slates in atcas where there is mutual interest but differing goals and responsibilities." Another State suggested that State representatives should be permitted to participate us observers in NRC enforrcment. policy.

exit or other meetings whenever the matters addressed involve issues of concern to the State.

Several States objected to that portion of the policy statement which would channel all communication between NRC and a State through the State Uaison Officer on the grounds that this procedure is too restrictive. Noting the needs of various State agencies to maintain a continuing relationship and ongoing dialogue with NRC, these States recommended that the policy statement be modified to allow for mora than one State contact.

The comnlents submitted by the Oregon Department of Energy reflect Oregon's experience in implementing the provisions of a 1979 State law requiring the presence of a State inspector at the site of the Trojan Nuclear Facility in accordance with the provisions of an agreement relating to resident inspectors entered lntn between NRC and the Oregon l)apartment nf Energy (ODOE) in January 1980.

Pursuant to thcsc arrangements.

OUOE partiripatcs In many of NRC's regulatory'ctivities at Trojan. Based on its experience over the past eight years,"

ODOE Is of the opinion that "personal Inter<tctlon with plant staff is essential in gaining the information needed to accurately assess and influcr>cc plant safety." According to ODOE. this experience demonstrates that Stale and NRC regulatory programs can be complementary without being

'ur exsntt>le. for nine ye>>re lh>> t<cw Yo<L t>ut>tic Sorrier Commission hes h>>d st>>it toe>>ted ul the Nine hliic Point s><c end unlit r>>r~n<ly sl shuruhun>

inr the tn>rt>ose o[cuns<n>r<iun mon>turin<< inure>><

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April28, 1989 (relet)

PS PR.84

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POL[CY STATEMENTS duplicative ond that State.Federal interaction on plant safety Issues hos been very productive. In its comments, OOOE also states:

There have been no tnstences where Oregon hss misinterpreted NRC safety requirements. Oregon regulators have never rcdirccted thc licensee's attention to crees not consistent with NRC safety priorities.

And cur sgrccmcnt with ihe NRC prevents such problems from occurring. It states:

"ifODOE finds it nccessttry to direct the operators ofTrojan to take ection. ODOE shsii obtain NRC's prior agreement that such articn docs nct have an adverse effect on picnt or public safety."

Fxprcssing appreciation of NRC's cooperative npproach to Oregon's rt:gulutory program and noting that Oregon has worked hard to build and maintain public confidence that State and Federal regulatory programs assure sttfc operations at Trojan, ODOE expressed its belief that this relationship has benefited NRC and that dilution of the State's regulatory role to the level in the draft policy statement would not be in the best interest of the public.

Citing concerns relating to the operation of the Peach Bottom nuclear power reactor. located in Pennsylvania only three miles north of the Maryland-Pennsylvania border, Maryland expressed the view that the benefits accorded States under the policy statement should not be limited to "host" States. but should also be extended to all States within tcn miles of a nuclear power plant.

One State expressed general concern with the provision in tho policy statement which would require Stutes, us a condition of entering tnto un Instrument of cooperation with NRC for the purpose of State participation in inspections and inspection entrance and exit meetings, to recognize "the Federal Government. primarily NRC, as having the exclusive authority and responsibility to regulate the radiological and national security aspects of the construction 'and operation of nuclear production or utilization facilities, except for certain authority over air emissions granted to States by the Clean AirAct." [53 FR 21982. june 13. 1988.) This State dcclured that it "wilinot concede that the I'ederol government has unqualified und unspecified authority over these mutters where public hcnlth, safety and environmental concerns are at risk."

Noting that in 1985 it had entered into an agreement s with NRC Region Y which in iiersitilunrc with tide ugteemtint, 8tsis p>tsnnnrl huvr. alii.ndcd NRC invprrtnt's cttit ntretintts. shuti d fttfotm:ttfnnon envitnmnrntut moniloting, participated in significant mrclings established a mutually acceptable procedure for the exchange of information concerning maintenance, engineering, quality assurance.

security, emergency planning and operation of nuclear power plants located in tha State, this State stated that it "will review the final policy statement adopted by the Commission to propose changes in the existing agreement which may be mutually productive."

Several States questipned the need to require State programs carried out under an instrument of cooperation to specify "minimum education, experience, training. and qualification requirements for State representatives which are patterned after those of NRC inspectors." In the opinion of some States, the standard of knowledge and training appropriate for State observers need not be as stringent as that for State Inspectors. Other States expressed the view that the training and educational requirements applicable to Federal and State personnel need not be Identical but should instead bear some

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reasonable relationship to the differing jurisdictional responsibilities of the Federal government and the States. Qna State questioned the provisions of the policy statement characterizing rtunlified Slate representatives as those "knowledgeable in radiological health and safety matters." This State potnted out that "[i]fthe intent of this definition is to exclude persons from disciplines other than radiological health and safety, tt willunreasonably limitstole Involvement '

'."Rndthat "jt]his narrow a definition would contradict tho spirit. ifnot the intent. of the objective of furthering federal Isto te cooperation."

In addition. the State commenters recommended that the policy statement be revised in the followingrespects:

~ The policy stctenfenl should recognize the unique and diverse communico iion needs of various State agencies end allow for more than onc State contact.

~ The policy statement should ttffirmetivclyrecognize the value of cooperation between NRC end the States in areas where there is mutual interest but differing goals and responsibilities.

~ The policy statement should be brosdcned to recognize the Ststcs'eeds for interaction with the NRC in arcns ciintrul to State responsibilities. but substuniisiiy ciiccicd by NRC actions.

~ The second paragraph of the Implementation section should bc revised by inserting thc followingsentence between the fifthand sixth sentences In thc't paragraph:

"ARcra positive asscssmcnt.

State inspectors'nspections mcy be conducted ttt twren pliinint'tn;tgrmcttt petsrmnei cnii scnlut teptrscnlatives uf NRC snd worked jointlywith NRC on emetgcncy tcspunsc drills snd ettetufscs.

Individuallycnd would be coordinated with the NRC resident inspector."

~ The policy statement should be rcviscd to accord cli States located within ten mites

'f u commercial nuclear power reactor the same rights und responsibilities accorded to thc State tn which the reactor ts st ted.

~ Thc policy statement should include suggested meens by which c Slate could obfain funding for iis inspection program.

Public Interest Croup Comnicnts The comments from the public interest group expressed support for the policy statement because ifoffers some important opportunities for State involvement in tire protection of the health and safely of citizens and commended the NRC for taking the initiative in pursuing cooperation with States.

Industry Comments Fourteen comments were received from representatives of the nuc!ear power industry. including one from a major industry organization, two from legal counsel on behalf of fifteen electric utilities holding NRC operating licenses for nuclear power plants. and eleven from individual electric utilities holding NRC operating licenses; three of the latter were also included in the group of electric utilities represented by legal counsel.

For the most part. the industry commenters acknowledged the legitimate concerns of the States in being kept well-informed of NRC's activities with respect to the regulation of commercial nuclear power plants.

The industry commenters also expressed general support for the Commission's overall goal of promoting and enhancing NRCIState cooperation.

One conunenter expressed the view that "policics which aid qualified State representatives in improving their understanding of the design and operation of'

'commercial nuclear power plants) are beneficial to all parties and should be encouraged." One commenter characterized the policy statement as "a timely reaffirmation of federal preemption ln the area of nuclear safety. which properly focuses on state observation and participation In NRC meetings and inspections." One conuncnter expressed affirmation support fot the Commission's stated position that in those instances in which inspections were conducted by State representatives, "ja]llenforcement action willbc undertaken by the NRC

~ hn inilustty mtmmentet noted that inihn +ac uf a iuittiruhirfsrility,the Commission might find it nrc ssuty to diiai with the runtxtns uf alt States located wnhin Su indcs iifuie ingestion pitthwuy.

PS.P R.85 Aprl]28 1989 (reset)

POLlCY STATEMENTS iau FR 31983. )une 13. 19NI)

Thc industry cornmcnters wore in substantial disrrgrecment. however. as to how this goal might best be achieved.

Two comnrenters expressed unqualified support for the policy statement as published june 13, 1988, one stating that the policy sta'tement correctly muintains the current balance between Federal and State authority in the field of nuclear regulation, thc other urging that the Commission promulgate the policy statement in final form as soon as practicable. Two commenters<

considered the policy statement's six criteria for an accep!able State prrrposrrl for entranre into an NRC/State instrument of cooperation rel sting to nuclear power plant inspections to bc reasonable and appropriate. However, one of these commenters wag concerned that the policy statement does not address how the NRC willenforce its authority should a Slate r<<prescntativc exceed the scope of his/hcr authority under an instrument of cooperation. ln order to assure continuing comlrliGnce, thc commenter recommended that either the policy statement or the instrument of cooperation provide for some sort of periodic review.

Several commenters expressed contrary views. One commenter did not believe a policy of allov:ing State participation in routine insp<<ction activities to be necessary or in the best interest of the NRC or its licensees.

Another commenter expressed the view that legitimate concerns of States regarding the safety and operation of nuclear power plants could be addressed in the currently prcscrib<<d licensing process. However, this commenter was also of thc opinion that the NRC should proceed on a case by-case basis'f it furls State input is s ifrh>> NRC should deridr. io proceed in this manner. rh<<commenter rs~srmnrendvd thai the fuliowingguidelines should be foiiowed:

'I'he NRC should:

~ consider s Stare's concerns resenting safety of u nuclear power plant responding. when necessary.

wirh sn inspection which would inciudc Srstr.

observers:

~ provide u Srurc with rimeiy infotmnrion tegsrding its concerns. pmviding the infnrrnurion is noi ptoprictery or does noi pertain ro secutily mnlrets:

~ inciude Stare tepresenrulion in public mr.stings with the iiccnsees:

~ obtain Stere assistance when such ussisruncr would be s bencfu ro the NRC in ir~ reguiarory dories: snd

~ have complete oversight of Stale sclirilirs rrgntding nuclear safety.

1he NRC should nou

~ prrmir indcpendcni Stoic inspection programs or rl'views' dries;nr rr sponsibuiry for performing NRC inspcclinns lo Srsle represenl<<trves.

essential. The commenter also notrd that thc policy statement as published for comment is ambiguous and that

"{t)hisambiguity can lead to a situation where a State. for whatever reason,

'ould hinder the NRC ln its regulation of nuclear power."

Most commenters endorsed the second paragraph of the policy statement which provides that the NRC will(1) continue to keep Governor-appointed Slate Liaison Officers routinely informed on matters of interest to States. (2) respond in e timely manner to a State's requests for information and to its recommendations concerning matters v;ithin the NRC's regulatory jurisdiction, (3) upon request, routinely inform State Liaison Officers of public mcotings between NRC and its licensees and applicants in order that State representatives may attend as observers, and {4) upon request, permit State representatives to observe but not

to participate actively in specific inspections and/or inspection entrance und exit meetings where State representatives are knowledgeable in radiological healIh and safety matters.

ln the opinion of the commenters. these provisions constitute both an appropriate and an adequate basis for achieving thc desired communication and cooperation between the Commission and the States, Two commenters expressed a willingness to have State representatives present at public meetings with NRC licensees.

These same two commenters favored giving States timely information provided thc information in question did not relate to proprietary or security matters.

Viewing the observrrtion process us a logical first rrtep to ultimate participation in NRC inspection activities, one commenter expressed concern that State representatives should be allowed to observe NRC inspections and/or NRC inspection entrance and exit meetings solely on the approval of an NRC Regional Administrator. ln thc opiniott of the commenter, observation by State representatives should be delayed until Ihc State and NRC have signed a formal instrument of cooperation.

Most industry commenters, including the respective legal counsel retained by electric utilities holding NRC operating licenses, opposed. in whole or in part.

those portions of the policy statement which seek to achieve the goal of NRC/

State cooperation by delegating to the Strrtes any part of the Commission's authority to conduct inspections at nuclear power plants. ln particular. the commenters objected to the provisions of the policy statement which relate to Stair. proposrrls to enter into instruments of cooperation for State participation in NRC inspections of commercial nuclear power plants end in NRC inspection entrance and exit meetings, and the types ofinspection activities which qualified State representatives may be permitted to perform. Some of the commenters opposed any type of State inspection program, whether conducted independently or under continuing NRC oversight. Other coinmentcrs vrcre

'rincipally concerned about those passages of the policy statement which.

in their opinion, carry "the clear implication '

that there willbe occasions on which State representatives willbc allowed to conduct their own inspections'at nuclear generating plants 'on behalf of thc NRC.

unrrccompanied by NRC representatives." 'wo commenters who opposed independent State inspection programs indicated a willingness to accept State participation in NRC inspections as long as the State representatives were always accompanied by a qualiTied NRC inspector. One of these commenters suggested that the role of State representatives at an NRC inspection should be the same as that accorded NRC consultants.

Thc commenters who opposed any type of State inspection program.

whether conducted independently or under continuing NRC oversight.

strongly urged the Commission to provide specifically that no State radiological hea'lth and safety inspertions of NRC-licensed commercial nuclear power reactors willbe permitted. independent or otherwise. In their view. the role of State representatives should be strictly limited to observation of. or participation in. entrance and exit meetings. Noting that implementation of this aspect of the policy statement would make the regulatory process unncccssarily complicated and redundant under the policy NRC staff would be required both to qualify State inspectors and to assume full responsibility for the manner in which State inspectors conduct any subsequent activitiesthe commenters based their objections on legal, policy and practical grounds.

According to these commenters. the Atomic energy Act of 1954, as amended.

gives the NRC exclusive responsibility

'ccording ro onc commenter."'

'hc pniicy

~ruremcni complerety fstts io establish thc legal uurhoriry of Stare reprcscnrsrivcs ro stone inspect nuciesr safrry ucrivrrirsin rhe wet*ofthe putfcy sisremenh'on behalf uf the NRC:"

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April2B, 1989 (reset)

PS-P R-86

POLICY STATEMENTS for regulating the radiological and national serurity aspects of the construction and operation of nuclear production and utilization facilities, Therefore, under the doctrine of Federal preemption, States arc without legal authority to conduct inspections of nuclear power plants for the purpose of protecting thc radiological health and safety of the public. Dy the same token.

NRC is also precluded from dclcgating to other persons, including States, any of its regulatory responsibilities respecting such facilitics. including, among others, the responsibility of inspecting cominercial nuclear power reactors. The commenters are also of the virw that drlegation of inspection authority to State representatives as proposed in the policy statement exceeds the srope and intent of section 274 of the Atomic Energy Act of1954 ~ as amended. In the opinion of these commenters, section 274! of the Act does not provide an in<i.pendent legal basis for entering into agr>icmcnts with States. but must bc read in the context of section 274 of which it is a part. Under the provisions of section 274b, States are only authorized to enter into agreements to regulate materials, specifically. source, byproduct. special nuclear material and low.level radioactive waste. Section 274c of the Act, which reserves certain authorities to the Commission. makes clear that the responsibility for regulating nuclear power reactors from the standpoint of radiological health and safety remains with the NRC. In view of these statutory provisions. it is the ronsidcrcd opinion of'thc'commenters fiint.under existing law. section 274i "should properly be read to permit only inspections related to '

'aterials" and to allow "NRC to enter 'instruments of cooperation'nly with respect to licensed activities other than commercial nuclear power reactors (e.g.,

materials licensees) or with respect to matters other than radiological health and safety (e.g.. certain environmental matters.)" Section 274l should not be read as authorizing NRC to enter into agreements with States under which States willconduct inspections of commercial nuclear power plants for

NRC, The commenters also viewed the provisions of the policy statement inviting States to enter into instruments of cooperation with NRC for the purpose of participating in NRC inspections und inspection entrance and exit meetings as contrary to law because such urrangements constitute dual or concurrent regulation. As the legislative history of section 274 of the Atomic Energy Act of1954, as amended. makes clear, it was the intent of section 274 that regulatory authority either be exercised by the Federal government or by the States, but not by both.

The commenters also objected to the provisions of the NRC policy statement respecting the use of State inspectors at nuclear power plants in accordance with NRC/State instruments of cooperation on the ground that despite these arrangements such activities could have negative implications for public health and safety. According to the commenters.'permitting States to participate in NRC inspections would greatly increase the likelihood of divergent Federal and State interpretations of regulatory requirements which would. in turn.

create uncertainty and confusion, inject an unsettling and destabilizing element into the regulatory process and result in significant delay in the resolution of specific problems identified during an inspection. In connection with this objection, the commenters noted thc parallel concerns expressed by NRC "that independent State inspection programs could direct an applicant's or licensee's attention to areas not consistent with NRC safety priorities, misinterpret NRC safety requirements, or give the perception ofdual regulation." (53 FR 21981

~ June 13, 1908.)

As an example of the practical difficulties that might be encountered, the commenters pointed to the Commission's own recent experience with its emergency planning regulations which accorded State and local

~

governments a substantial role.

According to the commentrrs. 'history has shown that those regulations have

.resulted in State.imposed delays on reactor operations. and ln one case, a finished power plant apparently willbe tom down before it ever operates." The commenters also expressed the view that these difficulties could engender frictions which ifleft unresolved could defeat the avowed purpose of the Commission's policy to enhance co opera tion with the Sta tes.

Claiming that the policy stafement does not appear to address any clear need and that its implementation is unlikely to result in any significant benefits other than greater coordination of Federal/State activitibs, thc commenters pointed out that arrangements for State participation in NRC inspections undrr iqstruments of cooperation would be expensive and would likely result In cfficfent utilization of rote payer resources. For example.

NRC personnel would be required to devote time and rcsourccs to training, qualifying, man>>ging and communicating with State personnel and to overseeing the State's program.

In addition to paying for time billed by NRC, NRC licensees would likely be called upon to provide on. site facilities and services for State pcrsonncl participating in nuclear power plant inspections comparable to those provided to NRC rcsidcnt inspectors.

States would be required to bear thr direct costs. e.g., hiring expenses, salaries, employment benefits. of hiring and maintaining a cadre of individuals qualified to conduct inspections of commrrcial nuclear power plants. In thc opinion of one commenter, it would be less wasteful and more cost effective to have a fcw NRC inspectors with appropriate training and expertise than to have many States acquire these capabilities. In this connection. the commenter questioned whether NRC would bc able. in view of continuing budget constraints, to give State inspectors proper training and maintain un appropriate level of oversight of State inspectors and State inspection programs.

Several commente'rs criticized thc policy statement because it failed to address such practical problems as how the NRC willjudge the adequacy of a State inspection program and how the NRC willassure the competence of State inspectors and whether these determinations willbe made by the Regions or at NRC Headquarters.

In the opinion of the commenter, uniform interpretation of the policy statement could best be assured by including> a drtailcd desrription of an adequate State program and specifying minimum qualifications for State inspectors.

One commenter recommended that thc policy statement provide for arbitration as a method of resolving problems in those instances in which a State rcproscntative or State inspector is less than I'ullyqualified. Another commenter requested that,NRC licensees be infornicd whenever a State initiatives negotiations with NRC regarding an instrument of cooperation so that the licensees could participate in the process.

One commenter noted that in the case of a particular facility, it might be necessary for the Commission to deal with the concerns of several States. for example. States located within 50 miles of the ingestion pathway, instead of limitingCommission consideration to the concerns of the State within which the facilitysite is located. Another commenter had no objection to keeping

<<ppropriate reprcs'cntatives of neighboring States apprised of regulatory activities at a specific facility PS-PR-87 April28, 1989 (reset)

I

POL)CY STATEMENTS t>ut urged that the on. site presence of State personnel be limited to representutives of the State in which the facilityis located.

Three com<nenters expressed the view that the NRC should closely monitor and periodically evaluate the implementation of whatever policy is finallyadopted and any instruments of cooperation executed thereunder to assure that tbe program is effective. that there is no misapplication of authority.

and that the best interests of the Nation are being served.

ln addition, the industry comniunters recommended that the policy statement be revised in the followingrespects:

~ Thc policy statement should provide specifically that no State radiological health snd safety Inspections of NRC.licensed commercial nuclear power reactors wlH be perniitted. Independent or otherwise.

~ The policy statement should strictly limit the role of State representatives to observation of. or psrticipatio'n in. NRC entrance and exit inectings. Thc additional quvliAcations sppllcablo to State representatives as currently incorporated in the polirystatement (e.g.. thut State representatives should be knowledgeable) should bc retained.

~ The policy statement should provide th<<t State representatives may participate in NRC inspections only as observers, <<nd may not alone Inspect NRC.<cgulatcd activities (even lfthose inspections would be conducted with the co< pere<ion of the NRC and In accordanre with NRC Inspection procedures).

The policy statement should prohibit State.

disclosure of inspection findings both before and aficr release of the)g'RC inspection rcport.'

~ The policy statement should <<pprise pr>tentially affected licensees end uppliconts that their Stato Is pursuing an instrument of cooperation with thc NRC ond provide for these liccnsccs and opplicunts an opportunity to comment on drafts of Instruments of cooperation <turing negotiations between thc NRC and the Stale.

~ The policy statement snuuld specify how thc NRC willenforce its authority should u State rcprcscntetlve exceed the scope of his/

her authority under an instrunicnt of cooperation.

~ The policy statement should provide for renegotiation of existing Instruments of cooperation between thc NRC and the States ot the earliest opportunity. to bring the existing agreements into conformance with the policy stutenwnt.

~ 'lhts rccovimcnduitvn wus bused on<ho commenter'a vic>> that the release by s State vl underlying inspect ton date. notes. obis<vs<guns uod findings even after rctcssc of an NRC tospcctivn esp>et could be peeludictut to the NRCa toapecttvn und enforcement process. particularly tf the tnfvrmallvn rclcus<d by the Stale s ppcsrcd vn tia face tobe Inconsistent to nny wuy with the uhimaie tiodtoga of the NRC Inspection eevvii. Another cvmomnier a<at<<J it<a< Siuia ubac<<<e<a ahuutd tge re<iuirvd nvi iu d<vu!ge uoy information vgg<ulned wi<huut pdvr r1eurnnce Igy ibv NRC.

~ Thc policy statement should explicitly.

limitany "on site-presence of Stale personnel to represenu tlves of the State In which the facility is located.

l<lifC ifmponse

'ntroduction As the preceding summary indicates, thc commenters offered several sug estions for modifying the policy statement and expressed concerns on a variety of matters. including. among others: legal issues; the effect which implementation of the policy statement could hove on NRC licensees: tho use of State Liaison Officers as the preferred channel of communication between the States und NRC; the nature of State participation in NRC inspections.

including the advisability or inadvisability of State'participation, the qualifications of State representatives, the status to be accorded representatives of adjacent States. and the handling and use ofinformation obtained during an NRC Inspection. The commenters also expressed concerns regarding the role, ifany, to be accorded applicants for or holders of NRC licenses for commercial nuclear power reactors and other nuclear production and utilization facilities during ongoing negotiations between NRC and a State regarding the terms of a NRC/State instrument of cooperation.

Legal Issues.

We turn first to the commenters'egal concerns that the portfons of the policy.

statement which provide forState participation in NRC inspections at commercial nuclear power plants end in NRC inspection entrance and exit meetings in accordance with the provisions of an NRC/State instrument of cooperation are contrary to law because such activities are precluded by the doctrine ofFederal preemption and beyond the scope of section 214 of the Atomfc Energy Act of 1954, as amended.

Section 161 of the Atomic Energy Act of 1954, as amended, sets forth the general powers of the Commission in, licensing or regulating any of the activities aulhorized by the Act.

including the licensing and regulation of utilization and production facilities.

Section 161f (42 U.S.C. 2201(f)) which is identical to section 12(a) of tlie Atomic Energy Act of 1948 and has remained unchanged since February 1l, 1954 when it was reenacted into public law (Pub. L 103, 68 StaL 949) provides:

Scr 181. General provisions.In the performance of its functions the Commission is outhorlzcd tn-

f. with the consent of tho vgency cour< mud. utilize or employ the services or personnel of any Government agency or any Slate or local government. or voluntary or uncompensated personnel. to perform such functions on its behalf ss <nay s ppesr desirable:

This provision. standing alone, gives the Commission broad discretionary authority to enter into arrangments with States respecting inspections at nuclear power plants, including arrangements pursuant to instruments of cooperation as described in the policy statement.

in 1959. at the time of the enactment of the Federal/State Amendment which added section 2N to thc Atomic Energy Act of.1954, Congress clariifiied this authority in section 181f by providing in 1he first.sentence of section 2741 that The Commisslonin conying ourirs licensing ond regulolory responsibilities under this Act is authorized to enter into agreements with any State. or group of States. to perform inspections or other functions on a cooperative basis as the Commission deems appropriate. (Emphasis supplied.)

The legislative history of section 274'ontains na evidence that the first sentence in section 2NI was intended to limitthe broad scope of the Commission's authority in section 161f to those matters over which the States were authorized to assume regulatory authorit'y in accordance'with the proilslons of section 274b agreements.

The legislative history merely indicates that one permissible way in which the.

Commission may exercise its authority under section 18lf ia "'

Io enter into agreements with any State, or group'of States. to perform inspections or other functions on a cooperative basis as lhe Commission deems appropriate." For the foregoing reasons, the Commission disagrees with the conclusion of the commenters that sectfon 2Ni does not provide an independent legal basis for entering fnto agreements with States.

The commenters'bjections that the provisions of the policy statement relating to State participation in NRC inspections at commercial nuclear power plants pursuant to an f><RC'/State instrument of cooperation are contrary to law by reason of the doctrine of Federal preemption are equally without meriL Federal preemption. which is based on the Supremacy Clause of the Cons titu tion. resolves controversies which arise as a result of the conf)ictfng d<<mands of Federal and State laws.

y I ylh I'gtl g I'g y

g aeciivu Z74. see NUREC <uss. Final Task Force k<'tu><< u<g the As<emeco< Siutea P<oseam. t)rm mt>ve terr he<<< o<lia A eat>~Ciutty Sp h~hm April28, 1989 (reset)

PS-PR-88

0 r

POLICY STATEMENTS 14ere there is no conflicting State law.

The only document of concern is a policy statement prepared by a Federal agency which states in the clearest possible terms that It willbe implemented at both the State and Federal level in strict accordance with applicable law.~ Since, as the above analysis shows, the policy statement Is within NRCs statutory authority. there is no preemption issue.

A related concern expressed by a State commenter was that any formal acknowledgement by a state of NRC's legal authority. as recited in tha first of the six conditions enumerated In the policy statement, might be viewed as a relinquishment by a State of some purt of the State's rightful authority to protect the health, welfare and environment of its citizens. It is not the purpose of the policy statement to alter the respective responsibihties of the Federal government and the States or to require the States to concede to the Federal government any areas of the legitimate State responsibility. The only purpose of the policy statement is to describe the ground rules under which representatives of States can participate in NRC inspections and related meetings, a Federal function.

Accordingly, it is both reasonable and appropriate that the Commission should Identify in the text of the policy statement the legal authority on which its policies and regulatory activities are based, and to ask the States to recognize that the inspections which they willba participating in are FederaL not State.

Inspections. As furthe'r evidence of tha fact that it is not the purpose of the policy statement to encroach on the lawful exercise of State prerogatives, the Commission willcontinue its prior practice of Including a general provision in agreemcnts entered into with States under section 274I of the Atomic Energy Act of 1954, as amended, which states that nothing in the agreement is intended to restrict or expand the

~ For example. ihe policy siatemeni elTizmaiively "Izjecognizes ihe Fcderat Government piimarily NRC. as having the exdusivc euihnziiy and zcspnnsibiliiy io regulate the zadlnlngical end zisunnal secuiliy aspeCts of ihe cnnsizuciinn amt operation of nuclear produclinn or uiilizsiion feciliuas. except for certain suihnziiy over uir amiss ines grsiited to Sie ice by ihe Clean hlz hct;

'"the pniicy sistemcni also Idenufies six elements which must be induded iu ~ stale proposal for en Instrument of cooperation in ceder to assure

'the pznpnssi's consistency with the provisiuns of section Zrac nf Ihe hinmic Energy hci nf lese. as emenifed. Seciinn zyec provides in pan Ihui "Inja egzecment entered Into puzsueni tn subsection b.

shell provide fordi~niinuance of sny auihniliy and the Commission shall raisin auihnriiy and responsibility wiih zespeci io regulation nf-(Z) ihe ceusiiuction and upezsunn of any pioducilon or utilization faclllly:'

statutory authority of either NRC or the State.

Implementation of Policy Statement Effect on NRC Licensees:

Costs'ccording to Industry commenters..

implementation of the provisions of the policy statement respecting the use of State inspectors at nuclear power plants in accordance with NRC/State Instruments of cooperation Is likely to have a negative effect on public health and safety. In the opinion of these commenters, permitting States to participate In NRC Inspections would not only create the appearance of dual regulation but would also greatly increase the likelihood of divergent Federal and State interpretations of regulatory requirements. The resulflng uncertainty and confusion would Inject an unsettling and destabilizing element into the regulatory process and could significantly delay efforts to resolve specific problems Identified during on inspection.

State commenters expressed contrary views. In the opinion of these commenters, implementation of the NRC policy statement would foster uniformity, strengthen Federal. State cooperation, reduce duplication of effort, encourage the development of a unified NRC/State position on"matters ol joint concern, avoid the perception ofdual regulation and improve nuclear safety.

Based on its experience with State resident inspectors at the Trojan Nuclear Power Plant in Oregon," which has demonstrated that complementary State. Federal interaction on plant safety Issues can be productive. the Commission believes that the concerns expressed by the Industry commenters may be unwarranted, The Commission reiterates its commitment;as stated in the Implementation section of the policy statement. to'perform a formal review of a memorandum of understanding (MOU) between NRC and a State relating to State Involvement In NRC Inspecjions

' 'ot less ihsn six months after the effective date Iofthc hiOVI',; to evaluate implementation of the MOVand resolve sny problems Identified. Final agrcementa willbe subject io periodic reviews and may be amended or modified upon~ittcn agreement by both parlice <<nd may be terminated upon 30 days written notice by either party.

'In view of this commitment, as well as the Commission's announced intent that activities undertaken to implement the policy statement shall be carried out In close cooperation with and be subject to oversight by the NRC. the Commission has concluded that these provisions in the policy statement address the concerns raised by the Industry commenters and that,at this time no change in the policy statement Is warranted.

State azfl industry commenters also expressed concerns regarding the costs of Implementing the policy statement.

Noting that States might experience difflcultyin obtaining needed funds, one State recommended that the policy statement include suggested means of funding State inspections. Industry commenters were concerned that implementation ol the policy statement would result In the assessment of higher regulatory fees.

The Commission does not intend to charge licensees additional fees for regulatory activities because those activities are conducted in accordance with the provisions of the policy statement. Nor does the Commission expect or intend any increase in regulatory costs as a result of adopting and promulgating the policy statement.

In view of these circumstances. the concerns expressed by the industry commenters do not appear to be well founded.

Although requested to do so. 1he Commission has declined to revise th' policy statement in order to address the topic of possible sources of State funds.

This position is consistent with the underlying policy of the 1959 Fedcral-State amendment to the Atomic Energy Act of 1954. as amended, which makes no provision for the expenditure of Federal funds for the purpose of administering State regulatory programs.

Communication through State,LIaison Offlcers Several States objected to that portion of the policy statement which would channel all coinmunicaflon between NRC and a State through the State Liaison Officer on the grounds that this procedure Is too restrictive. Noting the needs of v'arious State agencies to maintain a continuing relationship and ongoing dialogue withNRC, these States recommended that the policy statement be modified to allow for more than one State contact.

The Commission Is well aware of the varying interests of States in the activities of commercial nuclear power plants and of the number ofdifferent State agencies with direct responsibility for various aspects of those activities. It Is precisely because this s!tuation exists that the Commission has adopted a policy which requires that all inquiries.

and requests from States respecting observations and Inspections at,-

commercial nuclear power plants and all information from NRC to States respecting these matters be channeled PS-PR-89 April28, 1989 (reset)

POLICY STATEMENTS through a single point. namely the offlce of the State Liaison Officer. Thfs arrangement not only assures tho Commission that NRC information of interest to the States willbe sent forward to those State agencies that need to know, it also assures interested State agencies that their requests and inquiries willbc handled in a uniform and busfnesslike manner. Since the primary purpose of the policy statement is to articulate the manner in which the Commission plans to conduct Its business in this area and to provide guidance to NRC Regional Offices which willassure that these matters are handled uniformly, it is neither necessary nor appropriate to modify the policy statement to elaborate further on

'he differing na'ture or wide variety"of

'tate responsibilities.

For the foregoing reasons. the Commtssion has made no change in the provisions of the policy statcmcnt which relate to communication through State Liaison Offices. The Commission has also concluded that the policy statement adequately 'reflects the complementary Interests and responsibilities of the

'States and that no changes relating to

'this matter are needed.

State Attendance at and Participation in

'RC Inspections

'iting the likelihood of increased complexity, confusion and uncertainty'n.

the regulatory process and the possibility of an attendant reduction in thc safety of nuclear power plants, rnotit of the industry commenters opposed allowing State representatives to participate in NRC inspections and stated that in no event should Slate representatives bc allowed to perform independent inspections or reviews.

As noted earlier, the Commission believes that the concerns of the industry commenters regarding u possible decrease In nuclear safety may be unwarranted. At the same time, the Commission wishes to make quite clear that the policy statement does not contemplatr. and should not be interpreted as authorizing States. using State radiological health and safety standards, to conduct independent health and safety inspections of commercial nuclear power plants.

As explained in the policy statement, the NRC inspections and assoriated entrance and exit meetings which State representatives willbe permitted to attend as observers or as participants.

for the purpose of assisting NRC, willbe conducted under the close and continuing surveillance of the NRC and in strict accordance with Fedcrttl..

standards and regulations. Thc presence of the NRC is essrntial not only beciiuse tillcommunications with the licensee must be made through the NRC but also because the NRC is solely responsible for taking any needed enforcement action. Ifinformation relevant to an NRC enforcement matter is obtained by a State representative during an inspection and subsequently made available to the NRC, it ls expected that the State representative would be.

invited to attend the enforcement conference. Moreover. State assistance, including testimony at any enforcement hearing. may be needed to carry out'RC's enforcement program.

related matter concerns the role to be accorded State representatives who wish to attend or participate in entrance and exit meetings and inspections of'.

nuclear power reactors located in adjacent States. Despite disagreements

'on the criteria to be used to identify adjacent'States.

there was a general consensus among commenters who addressed this issue that representatives from adjacent States should be permitted to attend meetings and inspections subject to the same conditions that apply to representatives from the host State.

The Commission believes that interstate cooperation should be encouraged and willendeavor to do so.

After the Commission has gained some practical experience in implementing the present policy which is limited to.

cooperation between'NRC and "host" States, i.e.. States in which an NRG licensed facilityIs located, the Commission may reconsider the question of whether and to what extent the policy statement should be broadened to encompass cooperative arrangements between NRC and "adjacent" States.

The policy statement makes clear that State representatives must be properly qualified to undertake their assigned roles, whether as participants or observers. Although State representatives who only observe need not bc as knowledgeable technically as State representatives who actively, participate in inspections. they must have some general understanding of the nature of nuclear power for the observation to be mcanlngfu).

Consistent wflh those provisions of the policy statement which contemplate that State representatives willbe qualiTied to perform any tasks they may be assigned, it is thc expectation of the Commission that. subject to specific guidelines contained in the formal instrument of cooperation entered into between NRC and a particular State, the extent to which State representatives may be permitted to participate In an NRC inspection willbe determined in each instuncc by the NRC represcntativc authorized to conduct the Inspection in light of the particular qualifications of the State representative accompanying the NRC inspection team. While thc Commission recognizes thc importance of specifying minimum qualifications for State inspectors, as suggested by onc of the commenters. it is of the opinion that'his matter can best be dealt with in the.

context of each NRC/State instrument of cooperation when the qualiflcatlons of individuals who may be able to perform this function for the State arc

,likely to bc better known. In its present form, the policy statement provides ailequate general guidance on this'atter.

For these same reasons.

the

..Commission has also declined to adopt the suggestion of a State commenter to add an additional sentence concerning State tnspectors to the second paragraph of the Implementation section.

~

Accordingly. the Commission has made no changes in the policy statement In response to those comments.

Several commenters expressed the view that the policy statement should prohibit State disclosure of inspection findings after as well as before the NRC inspection report Is publicly released.

Commenters also expressed concern about the disclosure by State representatives ol any underlying data obt'ai'ned or any notes'or ob'servatlons made while attending or participating in an NRC inspection. The Commission is of the opinion that insofar as State representatives are apprisbd of this information as a result of their involvement in NRC's regulatory activities. that State representatives should be required to meet the same standards as their NRC counterparts regarding information disclosure.

Opportunity for Public Comment on NRC.State Instruments of Cooperation Relating to Inspections at Commercial Nuclear Power Plants The Commission has given considerable thought to the'suggestion of some of the industry commenters that potentially affected applicants lor NRC licenses and NRC licensees should be notified that their State is pursuing an instrument of cooperation with NRC and be accorded an opportunity, during ongoing negotiations between NRC and the State. to submit public comments on the draft Instrument of cooperation before it ls finallyagreed to by NRC and the State. The Commission recognizes that the subject matter of these instruments of cooperation is of great interest to nuclear power plant applicants and licensees, who are. of April28, 1989 (reset)

PS-PR-90

POLICY STATEMENTS course. the entities that willbc inspected.

Consistent with Commission practice respecting other types of Federal/State agreements. any proposed agreemcnt negotiated by NRC and a State under the provisions of this policy statement willbe published in the Federal Register for public comment. At that time.

ticcnsees and other interested persons willhave an opportunity to comment on the proposed Memorandum of Understanding or Subagreement before it is executed by NRC and thc State in final form.

Conclusion For the foregoing reasons and after careful consideration of the comments submitted, the Commission has concluded not to change the text of the policy statement as publishrd for comment on june 13. 1908 (53 FR 21981),

Accordingly. the Commission hereby adopts and republishcs that policy statement as a final statement of policy.

The Commission further declares that the final statement of policy in its entirety is effective immediately.

, III.Statement of Policy It is the NRC's policy to coopcratc.

fullywith State governments us they seek to respond to the expectations of their citizens that their health and safety be protected and that there be minimal impact an the environment as a result of activities licensed by the NRC. The NRC and the States have complementary responsibilities in protecting public health and safety and the environment.

Furthermore. the NRCls committed to the full and timely disclosure of matters affecting the public and to the fair and uniform handling of all agency interactions with the States, the public, and NRC licensees.

Accordingly, the NRC willcontinue to keep Governor-appointed State Liaison Officers routinely informed on matters of interest to the States, The NRC will respond in a timely manner to a State' requests for information and its recommendations concerning matter

'within the NRC's regulatory jurisdiction.

Ifrequested, the NRC willroutinely inform State Liaison Officers of public meetings between NRC and its licensees und applicants in order that State representatives may attend as observers. Additionally, at the State' request. State representatives will be able to observe specific inspections and/or inspection entrance and exit meetings where State representatives are knowledgeable In radiological health and safety matters.

The Commission recognizes that the involvement of qualified State representatives in NRC radiological health and safety programs hue the potential for providing additional safety bcnefiL Therefore, the NRC will consider State proposals to enter into instruments of cooperation for State participation In inspections and inspection entrance and exit meetings.

State participation in NRC programs would allow qualified State representatives.

either individuallyor as a member of a team, io conduct specific inspection activities in accordance with NRC standards. regulations. und procedures in close cooperation with the NRC. State activities willnormally be conducted under the oversight of an authorized NRC representative with the degree of oversight dependent upon tha activity involved. In the proposal to enter into an instrument of cooperation, the State inust identify those activities for which cooperation with the NRC is desired. The State must propose a program that: (1) Recognizes the Federal Government, primarily NRC. as having the exclusive authority and responsibility to regulate the radiological and national security aspects of the construction and operation of nuclear production or utilization facilitics. except for certain authority over air emissions granted to States by the Clean AirAct; (2) is in accordance with Federal standards and regula tions; (3) specifies minimum education, experience, training. and qualifications requirements for State representatives which are patterned after those of NRC fnspectors: (4) contains provisions for the findings of State representatives to be transmitted to NRC for disposition: (5) would not impose an undue burden on the NRC and its licensres and applicants; and (6) abides by NRC protocol not to publicly disclose inspectiontmdings prior to the release of the NRC inspection report.

Consistent with section 274c of the Act, the NRC willnot consider State proposals for instruments of cooperation that do not include the elements listed above, which are designed to ensure dose cooperation and consistency with the NRC inspection program. As a prartical niattcr. the NRC is concerned that independent State inspection programs could direct an applicant's or liccnsce's attention to areas not consistent with NRC safety priorities, misinterpret NRC safety requirements.

or give the perception of dual regulation.

For purposes of this policy statement, an Independent State inspection program is one fn which State representatives would conduct inspections and assess NRC-regulated activities on a State' own initiative and authority without'lose cooperation with, and oversight by, an authorized NRC representative.

Instruments of cooperation between the NRCand the States, approved prior to the date of this policy statentent will cuntinue to be honored by the NRC. The NRC strongly encourages those States holding these agreemcnts to consider modifying them, ffnecessary, to bring then into conformance with the provisions of this policy statement.

IV. Implementation As provided in the policy statement the NRC willroutinely keep State Liaison Officers informed on matters of interest to the States. In general, all State requests should come from the State Liaison Officer to the appropriate NRC Regional Office. The NRC will moke every effort to respond as fullyes possible to all requests from States for information on matters concerning nuclear production or utilization facility safety within 30 days. The NRC will work to achieve a timely response to Stats recommendations relating to the safe operation of nuclear production or utilization facilities. State representatives are free to attend us observers any public meeting between the NRC and its applicant and licensees.

The appropriate Regional Office will routinely inform State Liaison Officers of the scheduling of public meetings upon request. State requests to observe inspections and/or inspection entrance and exit meetings conducted by the NRC require the approval of the appropriate Regional Administrator.

NRC willconsider State participation in inspections and the Inspection entrance and exit meetings. where the State-proposed agreement identmes the specific inspections they wish to assist NRC with an provides a program containing those elements as described in the polfcy statement. NRC may develop inspection plane along with qualified State representatives using applicable procedures in the NRC inspection Manual. Qua)ified State representatives may be permitted to perform inspections in cooperation with, and on behalf of, the NRC under the oversight of un authorized NRC representative. The degree ofoversight provided would depend on the activity.

For instance. State representatives may be accompanied by an NRC representative initially.in order to assess the State inspectors'reparedness to conduct the inspection individually. Other activities may be ronducted as a team with NRC taking the leod. Allenforcement action willbe undertaken by the NRG PS-PR-91 April28, 1989 (reset)

C I

]I

Thc Commission willdccid>> poliry nmt ters related to a rccments proposed under this policy statement. Once the Commission has decided the policy on a specific type of ogreemenk similar State-proposed agreements may be approved, consistent with Commission policy, by the Fe>>cutive Director for Operntions in coordination with the Office of Governmental and Public AITairs. A State.prnposed instrument of cooperation willbe ducumente<l in n formal MOU signed by NRC and Ihc State.

Once the NRC has decided to enter into an MOV for State involvement in NRC inspertions. a formal review. not less than six months after the effcctiv>>

diito. willbe performed by the NRC to evaluate implementation of Ihe MOU and resolve any problems identified.

Final agreements willbe subject to periodic reviews and may be amended or modified upon wrigen agreement by l>oth parties and may be terminated upon 30 days written notice by either party.

Additionally. once State involvemetlt in NRC ortivities at a nuclrar production or utilization facility is approved by the NRC. the State is responsible for meeting all requirements of an NRC licensee and opplicant related to personal safety and unescorted access of State rcprcscntatives at lhe site.

Dated at Rnckvillc. Maryland. this 15th day of February 1989.

For the Nuclear Renulatory Commission.

Snmael ). Chllk.

Secretary nfthe Cnmniissinn.

54 FR 7897 Published 2/23/89 Dfecttvo 3/27/89 Statement of Policy on Utlgatlon of TM)-Re)ated Issues In Power Reactor Operating Ucenso Proceedings; Revocation of Superseded Policy Statement Concerning TMI.Related Procedures Aa EHcvi Nuc)ear Regulatory Commission.

acTtoH: Policy s!atement; revocation of policy stutemeiit.

sUMMARYIThe Nuclear Regulatory Commissiort is issuing an updated policy statement on the manner in which the applicant and any intervening party to an NRC operating license proceeding can raise a challenge to those requirements imposed upon ulilities seeking an operating ))cense as a result of the March 1979 accident at Three Mile Island. Unit 2. In addition, the Commission is revoking another policy statement relating to requirements Imposed after the Three Mile Island accident as superseded by subsequent agency action.

POLICY STATEIVIENTS EFFEGTIvE oATE: March 27, 1989.

FOR FURTHER IHFORMATIOHCOHTACT:

Pau) Bo))werk. Senior Attorney. Office of the G>>neral Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555. Telephone: (301) 492-1834.

SUPPLEMEHTARY IHFORMATIQHl Following the march 1979 accident at Three Mile Island, Unit 2 (TM)-2), the Commission took a numbor of regulatory mcasurcs desigred to provide the appropriate mechanisms for assimilating the regulatory changes resulting from TMI-2into the ongoing process for facility)icensbtg. Principal among these was the Commission's issuance of policy guidance on how the regulatory requircmcnts imposed as a result of the TMI-2incident were to bo considered in the context of ongoing adjudicatory lirensing proceedings and its suspension and later revision of the existing rule by which tbe initial decision of an Atomic Safety cnd Licensing Board authorizing issuance of a construction permit or an operating license v'as considered to be hnmcdiately effective. In the years since thc accident, however. the Cormnission has taken a variety of responsive regulatory actions that raise quostions about the continuing efficacy of its earlier policy statements concerning litigation ofTMI-related issues and the suspension of the immediate effectiveness rule. Since the accident, the agency has ldentified venous "lessons learned" from the TMI-2 accident, wh)ch ure cmbodicd in NUREG-0737, "Clarification ofTMI Action Plan Reouirements" as well as specific licenses and orders. It also has implemented changes to update regulatory requirements on the basis of these "lessons." Sec. e.g.. 10 CFR 50.44 (hydrogen control); 50.47, 50.54(s), and Appendix E to Part 50 (emergency planning); 50.54(w) (property insurance):

Part 55 (operator training). The NRC staff has advised the Comm)ssion that all regulutory changes needed to implement NURFG-0737 have been completed and thai compliance with, existing regulations and orders is a sufficient response to all oppHcab)c TMI-2accident "lessons learned." As a resull, tho Commission now believes further action is appropriate regarding the policy established by several policy statements published after,the TMI-2 accident and discussed below.

I. Commission Policy on L)t)got)on of TMI-Relatod Issues in Power Reactor Operat)ng License Procoodings Current Commission policy on the appropriate parameters for applicant and intervenor litigation of TMI-related issues in operating license proceedings is set forth in a Commission Policy Statement. Cl.)-80-42. 12 NRC 854 (1980)

(45 FR 85236; Dec. 24, 1980). However, the implementation ofTMI"lessons learned" and other events have rendered much of the background discussion in this 1980 policy statemerit outdated and confusing. Also. while the Commission previously noted that very few operating license hearings have involved the litigation of these issues (48 FR 13987, 13988: Apr. 1, 1983), there nonetheless are facilities under construction for which certain specific guidance afforded by the policy statement could be pertinent.

Accordingly. the Commission has decided to rescind that 1080 policy statement, but to pros1de the following supplemental guidance for the itigatfon ofTM).related issues. in operating license proceedings:

In conjunction with existing NRC regulations, the guidance for new operating licenses found in NUREG-0737. "C)arification ofTMIAction Plan Requirements," can serve as the basis upon which the NRC staff makes a determination about whether an applicant meets the necessary requirements for issuance of an operating license as the NUREG-0737 guidance interprets, refines. or quantifies the general language of existing regu)ations.'11ie parties to a proceeding moy challenge the guidance in NUREG-0737 as unnecessary on the one hand or insufficient on the other to meet existing regulations. Parties to a proceeding, the Ucensing Boards. and the Appeal Boards also should heed the additional Commission guidance regarding tbc litigation ofTMl.related issues given in Pocific Cos ond Electric Co. (Diablo Canyon Nuclear Power Plant. Units 1 and 2), CU-81-5. 13 NRC 381 (1081).

II.Policy Statement R>>lating to Immediate Effectiveness Prior to the Commission's action in November 1079 adopting the now rescinded Appendix B to10 CFR Part 2 (44 FR 65049).'hc Commission's Post-TMIpolicy relating to immediate effectiveness of Licensing Board initial decisions authorizing tbe issuance of construction permits and operating licens>>s wa's set forth in un October 1979 statement. "Interim Statement of Policy and Procedure" (44 FR 58559).

This policy statement was superseded by the November 1979 action and ls hereby formally rescindeIL The Commission's existing immediato effectiveness procedures are found in 10 CFR 2.784.

Dated at Rockville, MD. this 18th day of February. 1989.

For the Nuclear Regulatory Commission.

Samuel ). Chllk, Secretory ofthe Commission.

APril 28, 1989 (re80))

PS-PR-92

II J

Uarch -25, 1991 DISTRIBUTION Docket Fi les

'DV Reading File DFoster (Enclosures already in docket files.)

F DocKET No(s) 50-528, '0-529 and 50-530 I

To attached addresses PALO VERDE, NUCLEAR GENERATING STATION, UNIT NOS. 1, 2, AND 3 The following documents concerning.our review of the subject facility are transmitted for your information.,

DESCRIPTION OF DOCUMENT Notice of Receipt of Application Draft/Final Environmental Statement Notice of Availabilityof Draft/Final Environmental Statement Safety Evaluation Report, or Supplement No.

Environmental Assessment and Finding of No Significant Impact-Notice of Issuance of Environmental Assessment Notice of Consideration of Issuance of Facility Operating. License or Amendment to Facility Operating License

Biweekly Notice; Applications and Amendments to Operating Licenses S

p Involvin No Si nificant Hazards Conditions."'.

'See Pag'e(s)

DATED Exemption Construction Permit No. CPPR-Facility Operating License No.

Order Monthly Operating Report for

, Amendment No.'Amendment No.

transmitted by Letter AVnQI/Semi-Annual Report: Semi-annual Radioacti ve Release Re ort Jul D

transmitted by Letter Other

Enclosures:

As Stated Office of Nuclear Reactor Regulation Project Directorate V

Division of Reactor Projects III/IV/V CC:

OFFICE>

SURNAME~

OATEN PDVJl,/t)

..DFMgeI:,Sm NRC FORM'at t10/ao) NRCM 0240 OFFICIAL RECORD COPY

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