ML19256E674
| ML19256E674 | |
| Person / Time | |
|---|---|
| Issue date: | 12/31/1977 |
| From: | NRC OFFICE OF STATE PROGRAMS (OSP) |
| To: | |
| References | |
| FACA, NUREG-0388, NUREG-388, NUDOCS 7911140444 | |
| Download: ML19256E674 (100) | |
Text
NUREG-0388 FINAL TASK FORCE REPORT ON THE AGREEMENT STATES PROGRAM 1718 206 e
Office of State Programs U. S. Nuclear Regulatory Commission 3 911140 WY
Available from National Technical Infornation Service Springfield, Virginia 2216i Price: Printed Copy $6.00; Microfiche $3.00 The price of this document for requesters outside of the North American Continent can be obtained from the National Technical Infonnation Service.
1718 207
NU REG-0388 FINAL TASK FORCE REPORT ON THE AGREEMENT STATES PROGRAM 1718 208 Manuscript Completed: December 1977 Date Published: December 1977 Office of State Programs U. S. Nuclear Regulatory Commission Washington, D. C. 20555
TABLE OF CONTENTS PAGE 1977 AGREEMENT STATE TASK FORCE
SUMMARY
1-1 AGREEMENT STATE SIUDY........
2-1 A.
Reason for Study...
2-1 B.
Scope of Study.......................
2-1 C.
The Agreement State Program..........
2-1 D.
Issues.............
2-2 1.
Program Expansion..
2-2 2.
States Assume Additional Responsibility..........
2-9 3.
Reassertions by NRC.............................
2-10 4.
Changes in NRC Oversight.
2-14 5.
Exclusive Jurisdiction Over Radiation Health and Safety................
2-15 6.
Impact on Other Activities................
2-17 APPENDIX A...
A-1 A.
Background and Legislative History.
A-1 B.
Current Status..........
A-28 C.
Decision Factors.........
A-37 D.
NRC Oversight.....
A-41 E.
Relationship to Other Studies...
A-41 Attachment A.
Section 274 of the Atomic Eiergy Act of 1954, P. L.86-373, 73 Stat. 688, September 23, 1959 (42 U.S.C. 2021)....
A-50 Attachment B.
Agreement States.....
A-53 Attachment C.
Non-Agreement States..
A-54 Attachment D.
Model State Radiation User Fee Act.....
A-55 APPENDIX B, Analysis of State Comments..
................. B-1 REFERENCES..............
....... R-1 1718 209
1-1 1977 AGREEMENT STATE TASK FORCE
SUMMARY
CCNCLUSIONS AND RECOMMENDATIONS Section 274* of the Atomic Energy Act was enacted by the Congress in 1959 to recognize the interests of the States in atomic energy, to clarify the respective responsibilities of State and Federal Governments, and to provide a mechanism for States to enter into formal agreements with the Atomic Energy Commission (AEC), and later the Nuclear Regulatory Commission (NRC), under which the States assumed regulatory authority over certain classes of nuclear material, i.e.,
source, byproduct and small quantities of special nuclear material.
To date, twenty-five States have entered into section 274b agreements with NRC, and they now regulate about 11,000 licenses.
NRC manages 8,800 similar licenses in the rest of the country.
Kentucky was the first Agreement State in 1962 and New Mexico was the last State to join in 1974.
In the eighteen years since the enactment of Section 274, the Agreement State Program and its organic legislation have remained essen-tially unchanged.
In the same period, however, the range of interests and responsibilities of the 5'tates in nuclear matters has expanded enor-mously.
The States in 1977 are concerned with issues such as the siting of nuclear facilities and, ultimately, their decommissioning; matters relating to high level waste disposal; the transportation of radioactive material; the interim storage of spent fuel; and the monitoring and surveillance of operating reactor sites.
The recent exchange of letters between the Chairman and the Governors on the question of Federal preemp-tion of the field of radiological health and safety in connection with construction and operation of nuclear production and utilization facilities indicates that there is no groundswell for individual State standard setting; nevertheless, the Governors seem to support the notion of a greater role for States in enforcing and monitoring Federally-set standards, and for a greater role in measuring the impacts and mitigating the environ-mental effects of nuclear development within their borders.
They also plead for consultation in advance of the development of criteria and standards.
The task force believes that the Agreement State program has been a success.
It has accomplished what the Congress intended by giving the States which choose to accept the program authority over and responsibility for a substantial majority of the material licenses currently in force.
It is, in many respects, a unique program in that the Federal Government, in carrying it out, divests itself of exclusive authority to control certain classes of radioactive material.
It involves no direct Federal funding for the operation of State programs.
The program also is remarkable in that NRC, as a Federal agency, regularly seeks the counsel of the member States before taking action in areas of common "See Attachment A to Appendix A for the text of section 274.
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1-2 concern.
Here, as in few other Federal programs, the States and State agencies are treated as equals.
Over the years, assisted by training provided under this program, the States have developed a cadre of trained professionals in the field of radiological health who have a demonstrated expertise not only concerning agreement materials, but also with other aspects of nuclear technology including emergency preparedness, environ-mental monitoring, and reactor siting and safety.
As the level of competence of State personnel increases along with rising interest of States in nuclear matters, as more reactors and fuel cycle facilities are licensed, and as the use of nuclear material in medicine and industry expands, NRC, the task force believes, should look to expanded agreements with States under which the States will play an even more active role.
If the Commission should decide to support a greater role for States to play in the years ahead, the task force recommends that the Agreement State concept should be considered as a logical vehicle.
Section 2741 gives the Commission, in carrying out its licensing and regulatory responsibilities, authority to enter into agreements with States or groups of States to perform " inspections or other functions" on a cooperative basis.
NRC has already used this section as authority for transportation surveillance contracts.
The task force believes, and the legislative history supports the notion that, the words "or other functions" give NRC broad authority to enter into substantive agreements with States for any number of other cooperative efforts outside of the traditional subjects of the section 274b agreements, including arrange-ments for decommissioning facilities, emergency preparedness planning, delineation of the State responsibilities for siting of nuclear facilities within its borders, and a more substantive role for the States in the area of transportation of radioactive material and in assisting NRC in evaluating the licensees' capabilities for the radiological and non-radiological monitoring at nuclear facilities within the State. This broad authority ought to be used by the Commission as the need arises in the future to make specific arrangements with the States to enhance their ability to undertake additional responsibilities. We recommend, therefore, that the Office of State Programs (SP) in consultation with other NRC offices. develop a series of model agreements to propose to the States in the areas of NRC's responsibilities including, but not limited to, water quality matters, decommissioning, emergency preparedness, transportation, surveillance and joint hearings.
A good deal of work has already been undertaken in these areas and SP should build on that base.
The task force charged with the conduct of this study believes that it would be desirable and consistent with the NRC's responsibility in protecting public health and safety to increase the present number of Agreement States by actively encouraging new States to enter into formal agreements.
This should be done with full recognition af the fact that 1718 211
1-3 it is unlikely that all fif ty States will ever see the need for or the utility of becoming sareement State.
Some States, particularly those with small populations and relatively little activity in material licen-sing, would prefer to leave licensing to the Federal Government because it is cheaper and easier for them to do so.
Nevertheless, the task force believes it should be a Commission goal to bring at least five more States into the program by the end of the decade.
The task force sees two fundamental reasons why twenty-five States have thus far not opted for agreement status.
The first is related to internal State political machinery, infrastructure and personalities about which NRC can and should have little influence.
The second, and by far the more important reason in our judgment, has to do with funding.
The task force believes that the Commission should be working toward the goal of having the vast majority of material licenses issued and regulated by the States by the end of the 1980s; an increase in the number of Agreement States would be a major step toward this goal. We believe that material licenses are a proper object of State regulation and that, with very few exceptions, Federal and NRC regulation should concern itself with issues which are clearly national in scope and character or which at least transcend State jurisdiction.
If the premise is accepted that NRC ought to encourage more States to enter into Agreement State status, the next question is:
in what way can encouragement be offered? The scope of section 274b agreements could be expanded to make agreements more attractive to the States.
Another incentive could be some limited financial support.
At the time of enact-ment in 1959, there were relatively few Federal grant-in-aid programs to the States; the great explosion in those programs occurred in the 1960s and early 1970s.
Now, there are relatively few Federal programs urged on the States which are not accompanied by Federal dollars.
The task force sees no need for a permanent grant program to assist the States in operating their radiation programs and indeed recommends against such a course.
After considering several options which are recited in the text of our report, the task force settled on its prefarrfd recommendation (a recommen-dation which was also made by the last internal study of the Agreement State Program by AEC in 1974) that the Commission urge the Congress to authorize and appropriate a nodest sum of money to be used over a five-year period (perhaps a sum not exceeding $5 million) which would be made available directly to interested States by the Commission to put individual State programs in place.
This would be a one-time-only payment, not a continuing program.
The task force also considered the question of whether additional responsibilities in the traditional areas of Agreement State authority--
source, byproduct and limited quantities of special nuclear material--
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1-4 shneld be assumed by the States in the program.
Our conclusion is that no additional responsibilities under these headings should be assumed by the States at this time. A fuller discussion of this topic is containeu in the text of the report (pp. 2-9 to 2-10).
The task force does recommend that additional funding be considered for NRC's current contract arrangement with the States for the surveillance of radioactive material in transportation and for environmental monitoring around operating reactors.
On the opposite side of the coin--the reassertion of Federal authority over matters currently regulated by the Agreement States--the task force sees no compelling reason for change in the present regulatory structure, but believes two important issues under this heading must be addressed by the Commission in the future.
The task force notes that the whole question of the fc+,ure of commercial low-level waste disposal is currently being considered by the Commission.
The second issue has to do with uranium mills and mill tailing piles in Agreement States and it received much attention at the task force meetings.
The task force believes that NRC should assist the Agreement States in carrying out uranium mill prelicensing environmental analysis that would be the functional equivalent of an Environmental Impact Statement (EIS), and in the post-licensing period, assist the States in regulation and control of tailings.
There was also agreement within the task force that tailings represent a serious long-range problem for both NRC and the States.
It was generally recognized that the National Environmental Policy Act of 1969 (83 Stat. 852) (NEPA) gives NRC additional authority over tailings in non-Agreement States, authority which can be used to condition NRC licenses to provide for the management and control over tailings after mill operations cease.
Currently, there are 19 operational uranium mills in the United States; ten in the Agreement States of Colorado, New Mexico, Texas and Washington.
Applications for new mill licenses are pending or expected in both Agreement and non-Agreement States, and new facilities no doubt will be proposed in the future as the demand for "yellowcake" increases.
At present, NRC prepares an Environmental Impact Statement (EIS) for each new mill located in non-Agreement State since licensing such a facility constitutes a major Federal action significantly affecting the quality of the human environment under section 102(2)(C) of NEPA.
In Agreement States, however, an EIS is not prepared since the licensing is a State function under the agreement.
The Agreement States, however, do perform such environmental assessments as may be prescribed by State law, regulation or policy.
The issue of whether the NRC can or should reassert jurisdiction over uranium mills and mill tailings in Agreement States is a question inextricably bound up in the recommendations and policy directions 1718 213
1-5 which will flow from the Generic Environmental Impact Statement (GEIS) now being prepared on mills and mill tailings and due for publication in the summer of 1978.
The Commission has recently directed the staff to draft proposed legislation which would authorize NRC to assert regulatory authority over mill tailings in non-Agreement States.
Because of these factors, the task force recommends that the Commission not seek substantive changes in the existing regulatory pattern for mills and mill tailings in the Agreement States at this time.
This is a matter which the Commission must carefully consider at the appropriate time.
For the interim, the task force recommends that the staff work with the Agreements States and render them such assistance as may be appropriate in the siting, licensing and regulation of mills, and continue to work with the Agreement States on problems of tailing management and stabilization, bonding and the care necessary after mill operations cease.
The task fcrce believes that no change is necessary in the present oversight and compatibility reviews conducted in the Agreement States.
They are working well.
With respect to legislative changes, the task force recommends that NRC ask the Congress for authority to make grants to States seeking Agreement State status for startup operations and for specific authority which would permit NRC to regulate naturally occurring and accelerator produced radioactive materials (NARM).
This report, in keeping with the Commission's previous recommenda-tions, was published and circulated in draft form to both Agreement and non-Agreement States for comment.1* The State comments are summarized in Appendix B.
Finally, the task force recommends that the Commission schedule another review of the Agreement State Program in about five years.
The task force consisted of the following members:
Anthony F. Abell Dennis M. Crutchfield Richard E. Cunningham Leo B. Higginbotham Sybil M. Kari G. Wayne Kerr Joel 0. Lubenau Elizabeth A. McCarthy Jane R. Mapes I. Craig Roberts
'c?erences are given at the end of this report.
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1-6 The task force also had valued counsel and assistance from Kenneth S. Pedersen and William Reamer.
Robert G. Ryan, Chairm %
December 1977 1718 215
2-1 AGREEMENT STATE STUDY A.
Reason for Study In October 1976, the Commission directed the staff to undertake a critical assessment of the State Agreements Program.
In December 1976, an internal study group was formed with representatives fre.m the Offices of the Executive Legal Director (ELD), Planning and Analysis (PLA), State Programs (SP), Management Information and Program Control (MIPC), Standards Development (SD), Nuclear Reactor Regulation (NRR), Nuclear Material Safety and Safeguards (NMSS),
Inspection and Enforcement (IE), General Counsel (OGC), and Policy Evaluation (PE), chaired by the Director, Office of State Programs.
B.
Scope of Study The purpose of the study was to analyze the NRC Agreement State Program to determine:
1.
Whether the NRC should aggressively promote Agreement State status; 2.
Whether the NRC should relinquish additional responsibility to the States and if so, which reponsibilities and under what circumstances; and conversely if NRC should reassert authority in any areas; 3.
To what extent the NRC should continue to oversee State perform-ance; and 4.
Whether changes in the statute or regulations are desirable or required.
C.
The Agreement State Program Section 274 of the Atomic Energy Act provides a statutory means by which the Commission may relinquish to the States a part of its regulatory authority over the use of source material, byproduct material and small quantities of special nuclear material.
The Commission is required to retain regulatory authority over the licensing of nuclear facilities, exports and imports of nuclear materials and facilities, larger quantities of special nuclear material, and activities conducted by other Federal agencies which are not exempted by the Act.
The mechanism in section 274 by which the Commission may relinquish to the States part of its regulatory authority is by an agreement 1718 216
2-2 between the Governor of a State and the Commission.
Before entering into an Agreement, the Governor is required to certify that the State has a regulatory program that is adequate to protect the public healt? and safety.
The Commission has to find that the State's program is adequate from the health and safety standpoint and compatible with the Commission's program to protect the public health and safety.
The programs need not be identical; they must simply be compatible.
The Commission works with each State to assure that the State's program for regulation of agreement materials meets these requirements, and that the State is equipped with a sufficient number of technically qualified personnel to administer the regulatory program.
These responsibilities are now carried out by the Office of State Programs, State Agreements Program.
NRC holds an annual meeting with the Agreement States at headquarters, usually in October.
Appendix A contains a full discussion of the legislative history of the section, a report on the current status of the program, and Agreement State review procedures.
The appendix also contains the full text of section 274 (Attachment A); a list of Agreement States, dates of agreements, and number of licenses (Attachment B); and a list of non-Agreement States and numbers of NRC licenses in these States (Attachment C).
D.
Issues The task force decided that it could best accomplish its purpose by identifying the e<sential issues, analyzing them, looking at the pros and cons n' various solutions and, where possible, settling on a recommended course of action for the Commission.
Question No. 1 Accepting that it is desirable for States to enter into agreements if they wish and are qualified to do so, should NRC more vigorously encourage new Agreement States? If such a program is decided upon, what should be its nature?
The task force felt that if successful efforts were made to attract new Agreement States, NRC's role in regulating radioactive material users could be minimized.
Recognizing there will always be a core of material licenses to be regulated by NRC (principally Federal agencies and distributors of consumer products) and that the use of radioactive materials is likely to continue to grow, the task force
elieves that NRC should look to the time when the vast majority of 0 fff
2-3 material licenses are issued and regulated by the States.*
Increasing the number of Agreement States would be an important step in accomplishing that goal.
It should also be noted that an increased number of Agreement States would develop a cadre of knowledgeable people at the State level who are available to handle radiation incidents, emergencies and public inquiries.
The history of why States became Agreement States at a faster pace in the 1960s is treated in Section B-1 of Appendix A.
We believe there are two principal factors which either cause a State to pursue an agreement or exhibit no interest:
(1) State politics, and (2) availability of State funding.
There is essentially very little the NRC can do about the former and, except as addressed in the options below, there is very little NRC can do about the latter.
To answer the first question we posed for ourselves, we identified four options:
Option A Continue the present program of working with any State which indicates a desire to enter the program.
NRC staff would continue to meet with State administrative and legislative officials as necessary, but the initiative for pursuing an agreement would be left up to the individual States.
No funding of any sort would be provided to the States.
- With respect to naturally occurring and accelerator produced radioactive materials (NARM), currently there are no Federal licensing requirements for uses of such materials.
The 25 Agreement States apply licensing requirements upon these users as well as upon users of radioactive mate-rials covered by a section 274 agreement.
In addition, five non-Agreement States apply license requirements upon these users.
In July 1977, an NRC task force published a recommendation that NRC seek authority to regulate NARM (NUREG-0301).
Such action, if it took place, would expand the scope of the Agreement St de Program.
Any such legislation would presumably also clarify the Fe'. oral role in the regulation of radium and its daughters in uranium millir.y especially tailings.
The USNRC Report NUREG-0301, " Regulation of Naturally Occurring and Accelerator-Produced Radioactive Materials" is available from the National Technical Infor-mation Service (NTIS), Springfield, Va.
22161.
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2-4 Pro Consis. tent with the Act and legislative history Requires no additional work by State Programs or other NRC staff except as necessary to accommodate new states that enter the program.
Under the present program, one-half of the States have become Agreement States and others are currently in various stages of negotiation.
Avoids extensive Federal oversight in State programs frequently associated with Federal funding of cate-gorical programs.
Five Agreement States currently collect license fees.
By avoiding Federal funding, support of State prograras through fees would be encouraged.
Results in reduction of costs to NRC.
Currently, an estimated $5,000,000 in costs to the NRC are eliminated.
Con:
Strongly opposed by the States (both Agreement and non-Agreement) in their responses to the draft task force report (see Appendix B).
Inconsistent with Federal practice in other program areas, e.g., OSHA.
Places Agreement States Program at a disadvantage with other NRC-State programs conducted thru section 2741 and which provide funding.
(Note:
these programs reimburse the States for services which supplement NRC programs).
Probably will result in only an occasional new Agreement State.
Risks losing Agreement States where funding might be cut off.
In some States, because of State and local politics, funding through fees charged to users may not be feasible or may be limited to only nominal amounts.
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2-5 Will serve to essentially continue the presently perceived inconsistency of one-half of the States in Agreement status and one-half not.
Option B Provide development money and transfer funds for States working actively toward Agreement status (Seed Money).
f.EO.
Will probably resist in new Agreement States at a somewhat increased rate.
Dollar costs would be modest.
An expenditure over five years of no more than $5,000,000 has been estimated.
If successful, would achieve a significant reduction of NRC licensing and compliance efforts.
Would be consistent with the President's expressed desire to have more functions carried out at the State level.
Would be responsive to the views of States expressed in their comments on the draft task force report (See Appendix B).
Con Requires legislative approval.
Serves to increase, at least temporarily, the total cost of the Agreement State Program.
No cost-benefit analyses have been performed which might show (a) increasing the number of Agreement States is desirable and (b) seed money is cost-effective.
Note:
Cost benefit may not be an appro-priate measure to use for obtaining new Agreement States.
Although some States favored seed money, more States were in favor of operating funds.
Some States may defer work on agreements until the necessary legislative authority b cp s law.
220
2-6 There is no guarantee that State funds will be avail-able when the seed money runs out.
Results under this program are hard to predict.
If the objective is to encourage new Agreement States, the responses of the States suggest that operating funds may be more effective in moving towards this goal.
Option C Provide partial direct operating funds to States for the operation of their programs (Operating Funds).
Pro Is likely to result in a significant number of new Agreement States.
Would significantly reduce the number of licenses currently administered by NRC with a concurrent reduction in NRC licensing and inspection workload.
Would be responsive to the States' views on funding.
Would be well received by States currently under budget constraints.
Would be consistent with other NRC programs involving states which provide funding.
Would bring NRC in line with other Federal programs involving States which provide operating funds, e.g.
OSHA.
Would be consistent with the President's expressed desire to have more functions carried out at the State level.
Con Requires legislative approval.
Will serve to further decrease the savings to NRC provided by the Agreement State program.
At 50% funding; 6800 licenses transferred to new Agreement States and 11,000 axisting Agreement State licenses; and State costs of $275/ license, the annual cost to NRC per year would be about $2,500,000, not including increases due to inflationary pressures.
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2-7 No cost benefit analyses have been performed which might show that (a) increasing the number of Agreement States is desirable and (b) operating funds are cost-effective.
Note:
Cost benefit may not be an appropriate measure to use for obtaining new Agreement States.
Providing operating funds may undermine efforts in States to obtain support through fees charged to users.
There is no guarantee that States would move to Agreement State status, or continue funding an existing Agreement program, even with Federal funding.
Optiun D Provide development money and transfer funds for States working actively toward Agreement status and partial direct operating funds to States for the operation of their programs (Seed Money and Operating Funds).
P_rg Is most likely to result in increasing the number of Agreement States.
Embodies both types of funding and thus is the most responsive to State comments.
Would significantly reduce the number of licenses currently administered by NRC with a convenient reduction in NRC licensing and inspection workload.
Would be well received by States currently under budget restraints.
Would be consistent with the President's expressed desire to have more functions carried out at the State level.
E !!
Requires legislative approval.
Will serve to decrease the savings to NRC provided by the Agreement State Program.
Is the most expensive option.
Requires an estimated total of $17,500,000 for the first 5 years and
$2,50G,000 annually, thereafter.
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2-8 No cos;-benefit analyses have been made which might show that (a) increasing the number of Agreement States is desirable and (b) operating funds are cost effective.
Note:
Cost benefit may not be an appropriate measure to use for ootaining new Agreement States.
Providing operating funds may undermine efforts in States to cbtain support through fees charged to users.
A combined program of seed money and operating funds was not advocated by the States commenting on this issue.
There is no guarantee that States would move to Agreement State status, or continue an existing Agreement program, even with Federal funding.
Recommendation The task force recommends Option B, that is, that the Commission seek authority from the Congress to provide limited funds to those States which are working actively toward Agreement status.
We recommend seeking a sum not exceeding $5 million over a period of five years.
The seed money would be used for laboratory and other technical equipment, facilities and office equipment, to hire trained professionals, and for their travel and transportation.
The level of funding to the State would, of course, depend upon the level of licensing activity, the population and geographical area of the State.
A similar recommendation was made to AEC hy the last task force to look at the Agreement State program, but AEC did not take final action because of the passage of the Energy Reorganization Act.
The task force rejected the idea of furnishing operating funds to the Agreement States on a continuing basis. The task force believes that the States have not fully explored all funding alternatives.
In'particular, only five States are collecting license fees.* We be.ieve this funding mechanism should be carefully examined by the States.
ACalifornia, Mississippi, New Hampshire, Oregon and South Carolina.
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2-9 Question Ng._2 Should NRC relinquish and the States assume additional responsibility? If changes are deemed desirable, what are they?
The task force reviewed five areas where it might be possible to relinquish additional responsibility:
A.
Changing the Quantity Limits of Special Nuclear Material Subject to State Regulation The task force considered the question of whether the quantity of special nuclear material currently stipulated in 10 CFR section 150.11 could be increased.
NMSS staff reviewed this from a technical standpoint and it appears that any increases that might be possible would result in the transfer of a very small number of licenses to the States, perhaps a total of ten in the current 25 States.
The task force found no utility in changing 10 CFR section 150.11.
B.
Research Reactors Because of the relatively small number of research reactors and their wide dispersal throughout the United States, the small current cost in dollars and manpower to NRC, and the additional technicai expertise required by the States for their regulation, it does not seem feasible to transfer responsibilities in this area.
C.
Environmental Impact Statements The task force considered the suggestion that Agreement States assist NRC in the preparation of environmental impact statements.
Current State contributions to these statements come from a variety of State agencies, not just those involved in the Agreement State Program.
The task force noted that the preliminary drafts of the Administration's proposed licensing reform legislation would give States a larger role in assessing the environmental impacts of nuclear power plants.
Presumably the Congress will make its judgment on this matter in the months ahead and the task force feels that this is a matter beyond its charter.
D.
Operator Licensing The task force also considered the matter of the States per-forming certain operator licensing functions for NRC.
While it appears States might participate in this area on a contract basis, it should be noted that NRC is currently undertaking a pilot project for the regionalization of this function.
A senior operator examiner has been assigned to NRC Region II (Atlanta) and the operator examination functions will be 1718 224
2 10 conducted at that regional office.
We cannot predict at this time how successful this will be.
The results of the NRC pilot program must be evaluated before any move is made to transfer to or contract for such activities with the States.
E.
Contracted Studies The task force believes the NRC's program for contracting with States for surveillance of radioactive materials in shipment and environmental monitoring around reactors would be more successful if additional funds were provided.
Currently, the NRC has contracts with five States for the surveillance of radioactive materials in transport and with 15 States for radiological environmental surveillance around nuclear power facilities.
The transportation surveillance is conducted at designated locations in order to obtain information on the condition of packages, handling practices and other pertinent data.
The Radiological Environmental Surveillance Program conducted by the States under contract with NRC provides NRC with data to evaluate the adequccy and accuracy of the information supplied by NRC licensees.
Both programs provide the States with an opportunity to enhance their expertise in dealing with situations having local impact, and both in our judgment are useful and desirable for both NRC and the States.
Recommendation The task force concludes that no specific additional regulatory responsibility should be transferred to the States at this time.
NT ' contracts with States in the areas of transportation and radiological environmental surveillance have been useful to both NRC and the States as noted above.
The task force recom-mends, therefore, that the Commission consider a greater level of funding for transportation surveillance contracts with the States.
Question No. 3 Should NRC reassert authority in areas currently handled by the Agreement States?
Concerning the question of whether responsibilities currently residing with Agreement States should be recalled and jurisdiction reasserted by NRC, the task force discussed three important areas:
8 225
2-11 A.
Natural Uranium Conversion Plants Theoretically, Agreement States could regulate such plants, but there are only two of these plants currently in existence, and both are located in non-Agreement States.
Some members of the task force felt NRC should regulate these because of their small number and importance as part of tl:e national energy picture.
The task force consensus was that no change in the current practice was necessary or desirable.
B.
Federal and State Roles Concerning Commercial Low-Level Radioactive Waste Burial This subject has been addressed by the Commission in NUREG-0217; NUREG-0217, Supp. 1; and NUREG-0240 and is being treated separately by the Commission.3,4,s The task force generally endorses the conclusions of NUREG-0217 and the program currently under way.
A Federal Register notice concerning the Commission's consideration of NUREG-0217 is to be published in the near future.
C.
Uranium Mills The principal concern here is over the long-term dispcsal and care of the tailings piles.
The NRC staff is currently developing new approaches to this problem.
In addition, the Genaric Environmental Impact Statement on uranium milling is scheduled for completion in mid-1978. We would expect the GEIS to include identification of any gaps in Federal or State statutory authority, regulations or practices relating to tailings management which need to be addressed.
In discussing this matter, the task force identified three options as follows:
Option 1 Leave the current regulatory framework in place with NRC licensing uranium mills in non-Agreement States while the mills located in Agreement States are regulated by those States.
Pro With respect to long-term controls over tailings, no technical deficiency in existing Agreement State programs has been demonstrated.
Does not affect traditional role of NRC serving as lead agency in developing new standards and criteria which States follow to a high degree.
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2-12 In some cases, States have demonstrated ability to take action more expeditiously than the Federal Government.
No substantive change is needed in the framework of the existing NRC/ Agreement State program.
Co.g States do not routinely prepare Environmental Impact Statements; NRC must prepare an EIS for mills proposed and licensed in non-Agreement States.
Some States may not have sufficient funding and staff to prepare thorough environmental analyses of proposed sites.
Results in a less uniform regulatory framework.
Some States feel that a burden resulting from a Federally established energy policy is imposed on them and should be accompanied by Federal funds or staff to assist them in carrying out their regulatory program.
Option 2 Leave the current regulatory framework in place.
- NRC, however, provides appropriate technical assistance to Agreement States which request help in performing environ-mental assessments of proposed mills and tailing sites.
Pro Provides States access to NRC knowledge, data and expertise on an as-needed basis while preserving the current regulatory framework.
Enhances NRC's role at a lead agency in developing iew standards and criteria.
Would be consistent with NRC's practices of providing technical assistance to Agreement States.
Allows States to improve and perfect environmental analyses on which it bases decisions on uranium mill licenses.
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2-13 Con Does not guarantee that State environmental analyses with respect to scope, content and documentation will be identical to EIS's prepared by NRC.
Requires additional expenditures of NRC staff time and other resources.
Option 3 Reassert NRC jurisdiction over uranium mills and tailings.
Pro This option will result in more uniform regulatory control.
The burden of regulating these operations are national in character and result, at least in part, from national policies, and should not be assumed by the States.
Environmental Impact Statements would be prepared on all uranium mill license applications wherever the mill may be located.
Con Disturbs a currently existing regulatory structure which, while not identical to the Federal practice, has been effective.
Some States would continue to impose requirements on these operations in spite of Federal takeover.
Would be contrary to current practice whereby States hold bonds for reclamation and long-term care at NRC regulated operations.
The proposal would do serious mischief to the entire Agreement State Program.
Recommendation The task force noted that several events outside this report's scope will focus the attention of the Commission on this issue within the next year; the Generic Environmental Impact Statement on uranium mills and mill tailings will be published in the summer of 1978, and the Commission has recently directed the staff to draft proposed i7i8 228
2-14 legislation which would authorize NRC to assert jurisdiction over mill tailings in non-Agreement States.
The task force finds no compelling reason either from the point of view of protecting health and safety or protecting the environment which suggests the need for NRC to seek to reassert jurisdiction over the licensing of uranium mills in Agreement States; indeed we see no reason to reach this question at this time.
Instead, the task force recommends that NRC render appropriate assistance to Agreement States which request help in performing environmental assessments of proposed mills and tailings sites.*
Question No. 4 What changes, if any, should be made in NRC's oversight role of State performance?
The basis for the continuing oversight and compatibility reviews is two-fold:
A.
The provisions of section 274 of the Act provide that the Commission may terminate or suspend its agreement with a State and reassert its regulatory authority if it finds that such action is required to protect the public health and safety.
B.
There is a long-standing commitment made to the Department of Labor by the former Atomic Energy Commission to avoid dual regulation by Department of Labor (DOL) in States operating under section 274 agreements.
This commitment has been incorporated by statute into section 4(b)(1) of the Occupational Safety and Health Act (OSHA) of 1970.
The staff has met with OSHA representatives who appear to be satisfied with the present NRC review program and arrangements with D0L.
At the two extremes, the measures available to NRC to achieve compatibility in Agreement State programs are persuasion and revocation.
The task force discussed whether other measures, such as some form of probation, might be feasible.
The consensus was that they are not and that various escalating levels of management discussion by NRC staff and State staff are the best means for obtaining changes on disputed issues.
As a result of a 1976 General Accounting Office (GA0) review of NRC's Agreement State Program, NRC indicated it would escalate discussions to the Governors' offices when necessary.
Additional discussion of this matter is contained in section D of Appendix A.
The task force took note of the current litigation regarding the Church Rock, New Mexico uranium mill in which NRC is a defendant.
Nothing in this report is intended to affect the litigation.
)]\\b
~
2-15 Recommendation The task force does not believe that any significant changes should be made in the current NRC oversight role.
Question No. 5 What should be the Commission's current posture on the question of retaining exclusive Federal jurisdiction over health and safety matters?
In 1977, NRC Chairman Rowden asked the State Governors for their candid and direct views on whether the present arrangement under the Atomic Energy Act of 1954, as amended, which calls for exclusive Federal control over radiation health and safety (except as provided by Section 274) requires revision and, if so, what form should such changes take.*
Of the 25 responses received by July 1977, sixteen Governors responded that no fundamental changes in the current regulatory scheme were necessary.** Reasons cited for continuing Federal control are the complex nature of the facilities and the financial burden of estab-lishing a technically competent State organization.
Three Governors (Oregon, North Carolina and Arkansas) indicated that the Federal Government should act as a coordinator of State activities, set standards and establish an Agreement State concept for monitoring and enforcement authority around nuclear facilities.
The Governors of Connecticut and Michigan indicated that the States need to play a more meaningful role and that Federal and State agencies should share decisions.
The Governor of Kentucky supported the idea that the Federal Government should own low-level radioactive waste burial facilities and that they should be regulated by the State and Federal Governments.
Additionally, he suggested that Federal regulations be extended to include the use c+ radioactive materials which are not presently covered by the Atomic Energy Act, as amended.
A This action as well as the deliberations of the task force which led to the publication of its draft report took place prior to the passage of the Clean Air Act Amendments of 1977 (Public Law 95-95).
See pp. A-28 for discussion of that statute.
- Chairman Rowden's March 24, 1977 letter to the Governors and the Governors' responses are available for inspection and copying in the NRC Public Document Room.
17l8 230
2-16 A number of Governors stated strong support for the continuation of the Agreement State Program whereby the Commission relinquishes regulatory authority over source, byproduct and small quantities of special nuclear materials to the States.
General opinion favored early notifications to a State and to neigh-boring States of the possible location of a nuclear facility within the State and that all information should be made available to the State with sufficient opportunity for State discussions with the NRC and applicant.
No State saw the necessity for a State to decide on the safety of a particular facility.
The consensus was that the States want to be involved ii the process to assure themselves and their citizens that Federal performance is consistent with State values.
Of particular interest to the Governors were the States' roles in planning for energy development.
Ten Governors indicated that States should make the decisions related to siting, need for power, land use, and the social and physical environment.
Louisiana and South Dakota suggested that the State need for power determination should be binding on the Federal Government.
One Governor (Montana) recommended that the Atomic Energy Act, as amended, be further amended to allow States to impose more stringent radiological effluent standards than those established by the Federal Government.
The Governor of Vermont suggested that one way to demonstrate the effectiveness and legitimacy of the Federal regulatory scheme is to have Federal officials continuously present in the State where Federal regulatory authority is involved. The public would then have access to credible, well informed individuals on a continuing basis.
As noted earlier, the responses from the Governors were received prior to the enactment of the Clean Air Act Amendments of 1977 which authorize States to regulate radioactive pollutants.
On a related matter, the task force believes that there is already in existence legislative authority for NRC to enter into additional new cooperative agreements with States or groups of States.
Section 274i provides:
The Commission in carrying out its licensing and regulatory 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 1718 231
2-17 Commission deems appropriate.
The Commission is also authorized to provide training, with or without charge, to employees of, and such other assistance to, any State or political subdivision thereof or group of States as the Commission deems appropriate.
Any such provision or assistance by the Commission shall take into account the additional expenses that may be incurred by a State as a consequence of the State's entering into an agreement with the Commission pursuant to subsection b.
Our reading of the legislative history on this section is that the Congress gave the Commission very broad latitude in dealing with the States.* The task force recommends that SP, building on work already done or underway, develop a series of model agreements in various areas of NRC responsibilities for cooperative efforts with the States.
Target areas might include need for power determinations, water quality matters, the siting and decommissioning of nuclear facilities, emergency preparedness and joint hearings.
These model agreements should be developed in consultation with other NRC offices and after exploratory discussions with the States.
Recommendation The task force believes that the Commission should retain its current jurisdiction over health and safety matters with respect to the use, possession and transfer of radioactive materials.
Additionally, the task force recommends that NRC should devote greater effort to involving the States in other NRC activities using section 274i.
Question No. 6 What are the impacts and relationships of other NRC studies which affect States which have recently been completed, or are underway, or are planned?
The discussion of several such studies is contained in Appendix A.
NUREG-0195, published in May 1977, contains many substantive recommenda-tions aimed at increasing the effectiveness of environmental decisi making in connection with siting of nuclear utilization facilities.gn Many of these recommendations are being considered in connection with the Administration's nuclear licensing reform proposals.
These recommendations generally call for an increased role for States in the licensing process. While the NUREG-0195 recommendations do not directly affect the Agreement State program, thay are significant to all States and this task force generally support the conclusions of that report.
See text of AEC's letter to Speaker Rayburn on introduction of the bill, 105 Cong. Rec. 7524 and 7526 (Daily Edition), May 19, 1959, set out in the footnote on p. A-5.
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2-18 The task force believes that other two studies may have direct impact on Agreement States in the near future.
In March 1977 the study of Federal-State Regulation of Low-Level Waste Burial Grounds was reported to the Commission (NUREG-0217).3 An analysis of public comments on the study was published in October 1977 (NUREG-0217, Supp. 1).4 The NRC Low-Level Radioactive Waste Management Program was published in October 1977 (NUREG-0240).5 The task force generally supports the conclusions contained in NUREG-0217.
A Federal Register notice concerning the Commission's consideration of this report will be published shortly.
Another study which may have significant impact on all States, especially on non-Agreement States, is on the regulation of naturally occurring and accelerator produced radioactive material (NARM).
A task force recort has recommended NRC seek regulatory authority over NARM (NUREG-0301, July 1977).6 The NARM task force is preparing final recommendations for consideration by the Commission.
The Agreement State Study task force supports the conclusions ar.d recommendation contained in NUREG-0301.
To summarize, the task force recommends two legislative changes:
first, authority be obtained to provide funding to States seeking Agreement State status for start-up operations, and second, authority be obtained over naturally occurring and accelerator produced radio-active materials.
The task supports an incredsea role for the States in the siting of nuclear utilization facilities and environ-mental assessment suggested in NUREG-0195.2 Finally, the task force believes that the Commission should direct a fresh review of the Agreement States Program in about five years.
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APPENDIX A TABLE OF CONTENTS PAGE A.
Background and Legislative History...
........ A-1 1.
Development of Section 274.
. A-1 2.
Legislative History..
. A-3 3.
Preemption.
A-21 B.
Current Status.
A-28 1.
Size and Activities of Current Program.
A-28 2.
NRC Program for Maintaining Adequacy and Compatibility..
A-30 a.
Statutory Obligations.....
A-30 b.
Reviews of Agreement State Programs...
. A-31 (1) General..
A-31 (2) Review Meetings.
A-32 (3) Summary Discussions.
A-33 (4) Documentation of Findings..
A-33 (5) Review of All State Licenses.
A-34 (6) Exchange of Information Program.
. A-34 3.
Formal Redetermination of Compatibility.
A-34 a.
Experience...
. A-35 b.
What Actions NRC Can Take.
A-35 c.
Attitudes and Actions of the States.
A-36 C.
Decision Factors.
. A-37 1.
Trends in Federal / State Relations.
A-37 a.
Agreement States Issues.
A-37 b.
Related Issues..
A-39 D.
NRC Oversight.
... A-41 1718 234
3
... A-41 E.
Relationship to Other Studies.........................
1.
Regionalization of Certain NRC Activities..........
A-42 2.
NARM Study............................
A-42 3.
Federal / State Regulation of Low-Level Waste Burial Grounds..............
A-44 4.
Generic Envirnnmental Impact Statement on Uranium Milling..
A-45 S.
Inclusion of Reported Events in NRC Abnormal Occurrence Reports...
............... A-45 6.
Section 102 Siting Study.
........... A-46 7.
Hydrologic Design Criteria for Water Control Studies Not Related to Radiological Safety and Construction for Nuclear Power Plants.
A-47 8.
Cooperative NRC/USGS/ State Geological,
. A-47 Geophysical and Seismological Studies.........
Attachments to Appendix A A.
Public Law 86-373.
....... A-50
......... A-53 8.
Agreement States...
A-54 C.
Non-Agreement States..
D.
Model State Radiation User Fee Act...
A-55 1718 235
A-1 APPENDIX A A.
Background and Legislative History 1.
The Development of Section 274 Atomic energy activities, prior to 1954, were virtually under a Federal monopoly. The Federal Government was solely responsible for the production and use of nuclear material, and participation by industry in nuclear technology was limited essentially to performance of Government contracts.
With the enactment of the Atomic Energy Act of 1954, it became possible for private enterprise to enter the field and to use nuclear materials and operate nuclear facilities in a manner consistent with our national traditions in other fields of free en*urprise.
Because the uses of nuclear materials involve the use of radiation, they necessarily involve considerations of public health and safety. The Congress, therefore, determined that private activities in this field should be regulated under a system of licensing in order to protect radiation workers and the public against radiation hazards.
The AEC was char,ged by the Congress with this responsibility.
~
Protection of public health and safety, however, has traditionally been a function of the States. With the development of a private atomic energy industry, organizations which were subject to the laws of the States in other areas of public health became subject to the laws of the Federal Govern-ment insofar as radiation safety in the use of nuclear materials was concerned.
But under the Federal law it was not at all clear what role, if any, was left to the States.
Many States were, therefore, concerned as to what their responsibilities, if any, might be; they had a very real interest in seeing that tae boundaries of Federal and State authority in this area were more clearly drawn.
The need to amend the Atomic Energy Act of 1954 to permit increased participation by the States had been a subject of concern to the Joint Committee on Atomic Energy (JCAE) and AEC since its passage. AEC had instituted several specific programs which ware designed to assist and cooperate with States and had participated in the activities of local ard regional commissions.
AEC notified State agencies of licenses iued and invited State officials to participate in Commission inspections of licensed activities.
An Advisory Committee of State officials was set up in 1955 to aid in the preparation of regulations 1718 236
A-2 to establish " Standards for Protection Against Radiation" (10 CFR Part 20).
In July 1957, AEC proposed a bill which would have permitted dual regulation by both Federal and State governments of byproduct, source and special nuclear material.
During the same year, a Joint Federal-State Action Committee was appointed by all the Governors and the President.
The Committee, with a staff from the Council of State Governments, recommended that the Atomic Energy Act of 1954 be amended in order "to clarify the roles of the Federal-State governments, to make possible the assumption of greater responsibilities of the States in the future promotion and regulation of the peacetime uses of atomic energy."*
Early in 1958, the President directed the Chairman of the AEC to suggest changes in the Atomic Energy Act to reflect the recommendations of the Committee.
By 1959, 17 States had established study commissions to consider means for promoting nuclear development within the State and to consider State organizational questions and the need for radiation control.
The Southern Regional Advisory Council and the New England Committee on Atomic Energy of the New England Governors' Conference were formed to study the impact of nuclear energy on State activities.
The Administra-tion had introduced bills (H.R. 7214 and S. 1987) on May 19, 1959, to add Section 274 to the Atonic Energy Act providing for a statutory framework within which States could assume an independent regulatory role in certain limited areas upon relinquishment of regulatory responsibilities by the AEC.**
The objective was to pick activities then regulated which were within the early capabilities of the States, and to provide for the procedures and criteria by which regulatory responsibility for those areas could be transferred.
Under the proposed bills the Federal Government would retain responsibility for areas in which the technical safety considerations are of such complexity that a State would not be prepared to deal with them, and in areas involving interstate, national and international concerns.
- U.S. Congress, Joint Committee on Atomic Energy, Federal-State Relationships in the Atomic Energy Field, Hearings Before the Joint Committee on Atomic Energy, 86th Congress, First Section, 1959, p. 27.
Congressional Hearings, Reports, Acts & Testimony identified in tuotnotes to this Appendix are available from Goverrment Printing Office or in public libraries.
- See footnote, p. A-1.
Ibid., p. 290.
17iB 237
A-3 At the May 1959 hearings, labor took the position that the major responsibility for radiation control and workmen's compensation should be retained by the Federal Government.
The unions opposed dilution of Federal responsibility because they alt the States could not properly do the job and were believed to be slow to react to new and changing needs.
Such States as Idaho, Florida and Texas and the National Association of the Attorneys General commented negatively on subsection (i)*, under which AEC could terminate or suspend.
This, they said, reflected a lack of faith in the States.
They suggested that if the section were retained the Commission's authority to rescind should be limited to a five year period from the date of enactment of the agreement.
The Council of State Governments (CSG) suggested that subsection (j) be reworded to provide that in the absence of an agreement, there should be concurrent jurisdiction.
CSG felt that a State would be required to go through the entire process of recruiting and training, financing and passing legislation--all before an agreement could be enta-ed into and staff put to work.
- This, said CSG, was a great practical 'tisadvantage.
Industry took the position that more progress would be made under State regulation.
State departments would be in a position to issue flexible rules and regulations in the atomic industry's growth stages.
Throughout the hearings on Section 274, certain recommendations were recurring:
that there be continuing compatibility between Federal and State regulations; that the legislation be interim; that the States do have a role in regulating radiation hazards; and that nuclear materials be regulated and licensed by the Commission or by the States, but not by both.
2.
Legislative History The 1959 Federal-State amendment to the Atomic Energy Act of 1954, as amended,** was precisely drafted to provide a definitive
- The subsections are from H.R. 7214 and S. 1987.
Section 274 as enacted places these requirements elsewhere.
- Section 274; P.L.86-373, 73 Stat. 688, approved September 23, 1959.
42 U.S.C. 2021.
1718 238
A-4 and finely-tuned mechanism for adjusting Federal-State relations in the atomic energy field.
Its primary purpose was to authorize the Commission to rel nquish, and enable the individual States to assume as they became ready, certain defined areas of regulatory jurisdiction over source, byproduct and special nuclear material.*
This approach reflected the general view that most citizens look to their local health officers for advice and protection against hazardous materials used in the community.**
In considering the legislation, Congress recognized that the Federal-State amendment would become a dead letter unless the States developed the capability to exercise their regulatory authorityinacompetentanpeffectivemanner.
Accordingly, several specific provisions were included in the amendment for the express purpose of enabling the Atomic Energy Commis-sion to assist the States to prepare themselves to exercise
- See subsection 274a, especially paragraph (4).
See also Senate Report No. 870, to accompany S. 2568, 86th Cong.,1st Session, September 1, 1959 (hereafter Senate Report No. 870) at pp. 3, 8; Remarks of Mr. Van Zandt and Mr. Price during House debate on the bill, 105 Cong. Rec.
17633-17635, September 11, 1959; Remarks of Mr. Anderson during Senate debate on the bill, 105 Cong. Rec. 17506-17507, September 11, 1959; Text of AEC letter to Congress transmitting draft legislation as printed at 105 Cong. Rec. 7523, May 19, 1959.
The Congressional Record is available at public libraries.
Senate Report No. 870 at pp. 8-9.
See also:
Remarks of Mr. Price and Mr. Van Zandt concerning role of local officials, House debate, 105 Cong.
Rec. 17c'4-17635, September 11, 1959; Remarks of Mr. Anderson, Senato debate,.05 Cong. Rec. 17507, September 11, 1959.
TSubsection 2741 provides:
"i.
The Commission in carrying out its licensing and regulatory responsibilities under this Act is authorized to enter into agree-ments with any State, or group of States, to perform inspections or other functions on a cooperative basis as the Commission deems appro-priate.
The Commission is also authorized to provide training, with or without charge, to employees of, and such other assistance to, any State or political subdivision thereof or group of States as the Commission deems appropriate.
Any such provision or assistance by the Commission shall take into account the additional expenses that may be incurred by a State as a consequence of the State's entering into an agreement with the Commission pursuant to subsection b."
1718 239
A-5 independent regulatory authority over agreement materials.*
These provisions authorized the Commission:
to provide training and other services to State officials and employees:
- See text of AEC letter transmitting draft legislation to Congress and accompanying analysis, as printed at 105 Cong. Rec. 7523, 7524, 7525, May 19, 1959.
See also Senate Report No. 870 at pp. 3, 8, 9; House debate, 105 Cong. Rec. 17634-17635, September 11, 1959; Senate debate, 105 Cong. Rec. 17507, September 11, 1959.
The first sentence of subsection (h) (subsection i of Pub. L.86-373) clarifies the Commission's existing authority under su'osection 161(f) of the act.
It would expressly authorize the Commission 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 appro-priate, including such additional functions as assistance in evaluating the meteorological and hydrological conditions of sites proposed for nuclear activities, radiological surveys, and other appropriate services.
The Commission has already made its intent clear to recognize where possible the functions of appropriate State agencies in the inspection of Commission licenses authorized to use byproduct and source material.
This policy will assist States to prepare themselves to assume independent regulatory functions.
The second sentence of subsection (h)* (subsection (i) of Pub. L.86-373) would authorize the Commission to provide training with or without charge to employees of any State (or political subdivisiorl and such other services as the Commission deems appropriate.
The Commission already has general authority under section 31(b) to grant assistance for education and training in the fields specified in section 31(a).
However, the Commission feels it is desirable in this bill to emphasize and clarify its authority to provide assistance in the training cf State employees and to provide other services to the States without charge.
The training and other services furnished to the States under the second sentence of subsection (h)* (subsection (i) cf Pub.86-373) would be intended to assis: the States to prepare for, and carry out, independent State radiation protection programs.
105 Cong. Rec. 7524-7525, May 19, 1959.
1718 240
A-6 to enter into agreements with the States under which the States would perfor.n inspections and other func-tions cooperatively with the Commission.
In giving AEC the principal Federal responsibility for preparing the States for the proposed transfer of certain AEC regulatory functions, the Federal-State amendment followed the contemporary recommendations of the President.* These recommendations contemplated that once the initial special training was comnh ced and the transfer carried out through the formal mechanism of the agreement, subsequent training of State personnel would be conducted within continuing programs of the Department of Health, Education and Welfare and other Federal agencies.** It was generally accepted that
- These recommendations were that:
(a) The Atomic Energy Commission have the principal Federal responsibil-ity for preparing the States for the proposed transfer of certain of its regulatory responsibilities.
{b} The training programs necessary for such transfer be financed and planned by the Commission, and in order to make maximum use of existing facilities and competence, such programs be conducted under cooperative arrangements between the Atomic Energy Commission and the Department of Health, Education and Welfare.
(c) Ac the termination of this special training program any training of State personnel be conducted within the continuing programs of the Depart-ment of Health, Education and Welfare and other Federal agencies.
(d) The Department of Health, Education and Welfare continue as the Federal focal point for guidance and assistance to the States with respect to contamination by and biological effects from radiation sources not now under control of the Commission.
Senate Report No. 870, p. 6.
See also remarks of Mr. Anderson during Senate debate, 105 Cong.
Rec. 17510, September 11, 1959.
- See also AEC analysis of draft bill at 105 Cong. Rec. 7525, May 19, 1959.
"It is not our intention in connection with this training assistance to supplant the prngrams of other Federal agencies, such as the Department of Health, Education and Welfare, which have existing authority much broader in scope.
Rather, it is our intention to work closely with such agencies in correlating our training assistance with their programs and to use any training facilities or programs which they have established, to the extent that they are suitable to our purposes."
1718 241
A-7 the Department of Health, Education and Welfare would continue as the Federal focal point for guidance and assistance to the States with respect to contamination by and biological effects from radiation sources not under Commission control.
Despite the care with which it was designed, the Federal-State amendment was viewed at the time of its enactment as interim legislation.
The Joint Committee on Atomic Energy stated in its reports to the Senate and the House recommending enactment of the legislation:
The bill recognizes that this is interim legislation.
The committee believes that the uses of atomic energy will be so widespread in future years that States should continue to preparn themselves for increased responsibilities.
.the committee... recognizes that this is interim legisla-tion in that, as the States improve their capabilities, additional legislation may be needed, perhaps in approxi-mately five years.
This view was also explicitly expressed in the public law which stated that it was the purpose of Section 274, among other things,
.to recognize that, as the States improve their capabili-ties to regulate effectively such saterials, additional legislation may be desirable...S"_ tion 274a(6)
The need for a Federal-State amendment was occasioned by the fact that the Atomic Energy Act of 1954 was silent regarding the regulatory role of the States.
Supporters of the amendment believed that if this silence were allowed to continue there would be " confusion and possible conflict between Federal and State regulations and uncertainty on the part of industry and possible jeopardy to the public health and safety."**
The source of the confusion and possible conflict stemmed in part from the fact that while the Federal Government retained sole
- Senate Report No. 870 at pp. 9, 10.
See also AEC analysis of draft legislation at 105 Cong. Rec. 7523-7524, May 19, 1959.
- Remarks of Mr. Anderson during Senate debate, 105 Cong. Rec. 17506, September 11, 1959.
Accord:
Remarks of Mr. Price during House debate, 105 Cong. Rec. 17634, September 11, 1959.
l718 242
A-8 responsibility for protecting the public health and safety from the radiation hazards of source, byproduct and special nuclear material, responsibility for protecting the public from substantial radiation hazards from other sources such as X-ray machines and radium had for many years been borne by the States, the Public Health Service, or other agencies.*
In drafting the Federal-State amendment to permit the States, under appropriate conditions, to assume full responsiblity for the regulation of radioisotopes (in 1959, licensing and regula-tion of radioisotopes constituted a major part of the Commission's regulatory activities),** the Atomic Energy Commission and the Joint Committee on Atomic Energy recognized that in this area the regulatory functions to be exercised by the States would differ little from the regulatory functions which the States were currently performing with respect to other sources of radiation.
In both cases the radiation hazards were local and limited and similar regulatory controls were required.
The Federal-State amendment gained added support when it was recog-nized that the provisions of the amendment which addressed the problem of qualifying States to assume regulatory responsibility for agreement materials served not only to enhance the capabil-ity of State officials to control hazards from byproduct, source and special nuclear material, but also enhanced the capability of those same officials to control hazards from other radioactive
- Senate Report No. 870 at p. 4.
- "These areas encompass by far the greatest part of present Commission licensing and regulatory activities.
They are areas which are suscep-tible of appropriate and adequate regulation by the States." AEC analysis of draft bill as printed in 105 Cong. Rec. 7523, May 19, 1959.
"The hazards from the types of materials encompass by far the greatest part of the Commission's present licensing and regulatory activities."
Senate Report No. 870 at p. 10.
"At the present time, the Commission is licensing the three types of materials defined in the Atomic Energy Act--Dyproduct, source and special nuclear materials--and has over 4,700 isotope licensees alone, scattered throughout our 50 States... In the case of isotopes, eight States--New York, California, Pennsylvania, Illinois, Texas, Ohio, New Jersey and Minnesota--have 55 percent of the AEC licenses, and transfer to the State government could ease the AEC licensing load."
Remarks of Mr. Price in House on occasion of nassage of legislation, 105 Cong. Rec.
17634, September 11, 1959.
1718 243
A-9 materials such as radium for which they had always been responsi-ble.
As a result the public received added benefits in the form of greater protection of the public health and safety.*
The scope and application of the-Federal-State amendment, summa-rized in the following statements, is quite precise.
Section 274 applies only to materials regulated by the Nuclear Regulatory Commission (formerly the Atomic Energy Commission) under the Atomic Energy Act of 1954.**
These materials are source, byproduct and special nuclear materials a: defined in the provisions of that Act.
Other radioactive materials such as radium and accelerator produced materials are not covered by Section 274.
The sole regulatory objective of Section 274 is to protect the health and safety of the public from the hazards of radiation.
As subsection 274k makes clear, the Federal-State amendment does not affect the authority of any State or local agency to regulate activities (including activities of NRC licensees) for purposes other than protection against radiation hazards.
As explained in the Senate Report, subsection k:
...is intended to make it clear that the bill does not impair the State authority to regulate activities of AEC licensees for the manifold health, safety ang economic purposes other than radiation protection..
- See Senate Report No. 870 at pp. 8-9.
- Section 274a(1) and b.
Senate Report No. 870, pp. 4 and 10.
Remarks of Mr. Anderson during Senate debate, 105 Cong. Rec. 17510, September 11, 1959.
iSenate Report No. 870 at p.
12.
Subsection 274k provides:
"Nothing in this section shall be construed to affect the authority of any State or local agency to regulate activities for purposes other than protection against radiation hazards."
See also AEC analysis of draft bill as printed at 105 Cong. Rec. 7525, May 19, 1959.
1718 244
A-10 Section 274 does not contemplate the exercise of dual or concurrent jurisdiction by the Federal Government and the States.*
It is not intended to leave any room for the exercise of dual or concurrent jurisdiction by States to control radiation hazards by regulating byproduct, source or special nuclear materials. The intent is to have the material regulated and licensed either by the Commission, or by thc State and local governments, but not by both.
The bill is intended to encourage States to increase their knowledge and capacities, and to enter into agreements to assume regulatory responsi-bilities over such materials.**
Subsection 274g requires compatibility of Federal and State radiation standards.
The Joint Committee believes it important to emphasize that the radiation standards adopted by States under the agreements of this bill should either be identical or compatible with those of the Federal Government.
For this reason the commit-tee removed the language "to the extent feasible" in subsec-tion g. of the original AEC bill considered at hearings from May 19 to 22, 1959.
The committee recognizes the importance of the testimony before it by numerous witnesses of the
- The 1957 predecessor bill permitted concurrent Federal-State regulation.
The 1959 amendment as proposed and enacted expressly disavowed this approach.
See AEC letter transmitting draft bill to Congrrss and accom-panying analysis as printed at 105 Cong. Rec. 7523, May 19, 1959.
Subsection 274b provides in pact:
"During the duration of such an agreement it is recognized that the State shall have authority to regu-late the materials covered by the agreement for the protection of the public health and safety from radiation hazards." As explained in the AEC analysis, this provision "..is designed to make clear the intent that, upon discontinuance of the Commission's authority, the State shall have full jurisdiction with respect to regulation of those activities for protection against radiation hazards."
105 Cong. Rec. 7523, May 19, 1959.
- Senate Report No. 870, p. 9.
Remarks of Mr. Anderson during Senate debate, 105 Cong. Rec. 17506-17507, September 11, 1959.
Accord:
Remarks of Mr. Van Zandt during House debate, 105 Cong. Rec. 17635, September 11, 1959.
17i8 245
A-11 dangers of conflicting, overlapping and inconsistent stand-ards in different jurisdictions, to the hindrance of industry and jeopardy of rublic safety.*
Subsection g. provides that the Commission is author..ed and directed to cooperate with the States in the formulation of standards for the protection of public health and safety from radiation hazards and to assure thct State and Commis-sion programs for protection against radiation hazards will be coordinated and compatible.
In most cases, it is intended that State and local standards should be the same as Federal standards in order to avoid conflict, duplica-tion, or gaps.**
The proposed new bill represents, in the view of the Commission, a more definitive approach to the problem of adjusting Federal-State relations in the atomic energy field.
It provides a statutory framework within which the States may assume an independent regulatory role in extensive areas now occupied by the Atomic Energy Commission on a basis which will assure appropriate protection for public health and safety and continued compatibility of the regulatory programs of the States and the Atomic Energy Commission.
(Emphasis supplied.)'
Section 274 does not affect the jurisdiction of other Federal regulatory agencies.
The proposed bill does not affect the jurisdiction of other Federal regulatory agencies.
It provides only for discontinuance of the exercise of Commission jurisdiction, after agreement with the Governor of a State.
The
- Senate Report No. 870, p. 9.
Subsection 274g provides:
"The Commission is authorized and directed to cooperate with the States in the formulation of standards for protection against hazards of radia-tion to assure that State a'd Commission programs for protection against hazards of radiation will be coordinated and compatible."
Accord:
Remarks of Mr. Anderson during Senate debate stating that "The Joint Committee amended this bill in certain respects to emphasize the importance of uniformity of standards at all levels of government.
105 Cong. Rec. 17507, September 11, 1959; Remarks of Mr. Price during House debate, 105 Cong. Rec. 17634, September 11, 1959.
- Senate Report No. 870, p.
11.
IText ofEAEC letter transmitting draft legislation to Congress as printed in 105 Cong. Rec. 7523, May 19, 1959.
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A-12 jurisdiction of such agencies as the Interstate Commerce Commission, the Civil Aeronautics Board, Department of Health, Education and Welfare, Federal Trade Commission, and other Federal regulatory agencies will not be affected.*
As made clear in the legislative history, two criteria were used in drafting those provisions of the Federal-State amendment which distinguished activities appropriate for State regulatory control from those over which Federal regulatory control shou be retained.
The first criterion concerned the extent to which the activity involved interstate, national or international matters necessi-tating Federal control.**
In applying this criterion, consideration was given, among other things, to the continued need to maintain Federal control over radiation sources, in view of the long-range effects of radiation, in order to achieve the objective of keeping the national radiation exposure level within permissible limits.
The second criterion concerned the extent to which the activity presented special hazards and complex technical problems affecting safety.
This criterion, which involved consideration of the state-of-the-art at the time the Federal-State amendment became law, including the acute scarcity of experienced specialists in the field of nuclear energy, necessitated a comparison of the respective abilities of the State and Federal variousareascoveredbytheAct.grotectionfunctionsinthe governments to perform radiation The following provisions of the Federal-State amendment illus-trate the applications of the first criterion:
- Text of AEC letter transmitting draft legislation to Congress as printed in 105 Cong. Rec. 7523, May 19, 1959.
See also remarks of Mr. Anderson during Senate debate stating that the responsibilities of the Department of Health, Education and Welfare are not changed,105 Cong. Rec. 17509, September ll, 1959.
- See AEC letter transmitting draft bill as printed at 105 Cong. Rec.
7523, May 19, 1959.
iSee AEC letter transmitting draft bill as printed at 105 Cong. Rec. 7523, May 19, 1959.
See also remarks of Mr. Anderson during Senate debate, 105 Cong. Rec. 17506-17507, September 11, 1959.
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A-13 The provision in subsection 274m preserving "...the authority of the Commission under subsection 161b. or i.
(of the Atomic Energy Act of 1954, as amended) to issue rules, regulations or orders to protect the common defense and security, to protect restricted data or to guard against the loss or diversion of special nuclear material...."
The amendment to section 108 of the Act preserving the Commission's authority, in time of war or national emergency, when necessary to the common defense and security, to order the recapture of any special nuclear material, including any special nuclear material covered by an agreement state license.
The retention in subsection 274c(2) of the Commission's regulatory authority over exports and imports of byproduct, source or special nuclear material, and production and utilization facilities.
The reasons for this provision and the scope of the Commission's regulatory authority are explained in the following excerpt from the AEC analysis of the draft legislation:
The reasons for excluding exports and imports from State regulatory jurisdiction are obvious.
The control of exports and imports is a matter primarily of Federal rather than State interest.
This exclusion applies only to the act of importation or exportation; and would not affect the authority of a State to regulate the possession or transfer of materials which are imported or exported.*
The retention in subsection 274c(3) of the Commission's regulatory control over the ocean or sea disposal of byproduct, source or special nuclear waste materials.
The AEC analysis of the draft legislation contained the following explanation of this provision:
This exclusion is included because the ocean disposal of those materials will frequently involve the interests of a number of States and may also frequently involve international considerations.
- 105 Cong. Rec. 7524, May 19, 1959.
0 hk@
A-14 The Commission is authorized in the exclusion to define by regulation or order what constitutes disposal of material into the ocean or sea because difficult problems of statutory construction might otherwise arise.
Under this exclusion the Commission would be authorized to reserve for the continued exercise of Federal control the disposal of source, special nuclear and byproduct material into such areas as the Gulf of Mexico and also, in appropriate cases, into harbors or waterways under circumstances where disposal into the harbor or waterway may result in significant contamination of an ocean or sea.*
The provision in section 274c** authorizing the Commission to license transfers of manufactured products containing source, byproduct or special nuclear material.
As explained in the AEC analysis of the draft legislation, this provision
.does not detract from any authority which may be turned over to a State.
The authority which might be exercised by the Commission under this provision would be in addition to any authority exercised by a State following an agreement under paragraph (b)(1).
The controls which would be exercised by the Commission under this provision would apply only to transfer of possession or control by the manufacturer, processar or producer.
The Commission would not be authorized under this provision to regulate any radiation hazards which might arise during manufacture, transportation or use of a product.
- 105 Cong. Rec. 7524, May 19, 1959.
- This portion of subsection 274c reads as follows:
"Notwithstanding any agreement between the Commission and any State pursuant to subsection b.,
the Commission is authorized by rule, regula-tion or order to require that the manufacturer, processor or producer of any equipment, device, commodity or other product containing sourr2, byproduct or special nuclear material shall not transfer possession or control of such product except pursuant to a license issued by the Commission."
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A-15 Under the provision, the Commission will be in a position to assure that articles containing byproJuCt, source or special nuclear material will not be dis-tributed unless they meet the Commission's minimum safety requirements, including appropriate manufac-turing and processing specifications and labeling requirements.
Manufacturers of such devices as gages, luminous markers, radiograph and teletherapy devices, electronic tubes, and so forth, sell their products throughout the United States and in many foreign countries.
It is important to assure that controls with respect to such products should be uniform and should be uniformly applied.
There is an additional reason why it is important for the Commission to continue the exercise of control over the distribution of articles contai,ing source, byproduct or special nuclear n.atsrial.
As the supply of such radioactive materials, particularly byproduct materials, increases, there may be increasing proposals by manufacturers and processors to incorporate such materials in articles (such as consumer products) that receive widespread distribution.
Although it is not a present problem, the extent to which the widespread distribution of radioactive materials should be permitted in this country may in the foreceeable future present questions of public policy which can be resolved, and the hazards controlled, only at the Federal level."*
Provisions of the Federal-State amendment which illustrate the application of the second criterion include:
The provision in subsection 274b(3) which limits State regulatory authority over special nuclear materials to
" quantities not sufficient to form a critical mass."
The AEC analysis which accompanied the draft legislation contained the following explanation:
Quantities of special nuclear material which may present hazards of accidental criticality are excluded from the scope of the bill because of the difficult technical problems presented and because of the acute scarcity of experienced specialists in this field.
As a consequence of the exclusion of such
- 105 Cong. Rec. 7524, May 19, 1959.
8 250
A-16 quantities, such activities as the processing of special nuclear material, fabrication of fuel elements and similar activities involving significant quantities of special nuclear material will remain subject to the licensing requirements and other regulatory controls of the Commission.
As our store of knowledge concerning problems of criticality expands and the number of specialists in the field increases, it may become feasible by amendment of the section to include larger quantities of special nuclear material among the areas in which the Commission is authorized to discontinue its regulatory program.* (Emphasis supplied.)
The provision in subsection 274c(4) which provides that the Commission shall retain regulatory control over the disposal of such other byproduct, source or special nuclear material as the Commission determines by regulation or order should, because of the hazards or potential hazards thereof, not be so disposed of without a license from the Commission.
As explained in the AEC analysis of the draft legislation:
This provision gives the Commission authority, by regulation or order, to reserve for the continued exercise of Commissiot. regulatory controls, such disposal of byproduct, source or special nuclear waste material other than into the ocean or sea as the Commission determines require the cor.tinued exercise of Commission regulatory controls because of the hazards or potential hazards of such disposal.
It is anticipated, for example, that the Commission will reserve for the continued exercise of its regulatory controls, the disposal by burial of significant quanti-ties or types of such materials.
The disposal by burial of significant quantities of these materials may present unique and difficult problems requiring continued Federal control.
Burial of fission products and other radioactive materials having a long life might require continued regulatory supervision for centuries or even millenia after burial.
At the present time the Commission does not permit the disposal by burial of significant quantities of radioactive materials except on Commission-owned property.**
- '05 Cong. Rec. 7523, May 19, 1959.
- 105 Cong. Rec. 7524, May 19, 1959.
7jgj
A-17 Both criteria are reflected in subsection 274c(1) which provides that the Commission shall retain authority and responsibility with respect to the regulation of: the construction and operation of any production or utilization facility; Pursuant to this authority, the Commission retains regulatory control over activities which include, but are not limited to: .the possession and storage at the site of the licensed activity of nuclear fuel and of source, special nuclear material and byproduct materials used or produced in the operation of the facility; the transportation of nuclear fuels to and from the reactor site; and the discharge of effluent from the facilities....* ...the disposal by licensed operators of production and utilization facilities (including reactors and chemical reprocessing plants) of radioactive wastes produced under licenses for the operation of production or utilization facilities. In addition to assisting States to qualify for Agreement State status, the Federal-State amendment included provisions enabling the Commission to furnish assistance in the form of consulting services and other specialized assistance to States which have enteredintoagreementswiththeCogmission. The amendment further provided in subsection 274i that in rendering this assistance: ..the Commission shall take into account the additional expenses that may be incurred by a State as a consequence of the State's entering into an agreement with the Commis-sion pursuant to subsection b. The reasons for and scope of this authority were carefully explained by the Joint Committee. Subsection i. provides that the Commission is authorized to provide training with or without charge, and such other assistance to employees of any State or political
- 105 Cong. Rec. 7523, May 19, 1959.
- 105 Cong. Rec. 7524, May 19, 1959.
iThe text of subsection 2741 is set out in the third footnote on p. A-4. 1 1718 252
A-18 subdivision thereof, or groups of States, as the Commis-sion deems appropriate. The last sentence added by the Joint Committee, after hearings, provides that any such assistance shall take into account the additional expenses that may be incurred by the State as the consequence of the State entering into an agreement with the Commission. It is not intended that a cash grant shall be provided to pay for the administration of State regulatory programs. It is anticipated that training, consulting, and similar arrangements may be made by the Commission to reimburse State or State employees for expenses, or pay salaries of such employees while associated with the AEC. (Emphasis supplied.)* Subsection 274g also authorized and directed the Commission: to cooperate with the State in the formulation of standards for protection against hazards of radiation to assure that State and Commission programs for protection against hazards of radiation will be coordinated and compatible. As explained in the AEC analysis of the draft legislation, this authority was provided:** In order to achieve the orderly development and exploita-tinn of uses of sources of radiation in industry, research, medicine, agriculture, and other fields, on a basis which will adequately protect the public health and safety, it is important that Federal and State radiation protection pro-grams be coordinated; c:.d that there be reasonable compati-bility among the various Federal and State programs. Such cooperation will become even more important as the States presentlyoccupiedbytheAtomicEnergyCommission.jnareas assume independent regulatory responsibilities with The Federal-State amendment does not authorize Federal funding for the administration of State regulatory programs. This is fully consistent with the principal objectives of the amendment to qualify States to assume independent regulatory authority over certain defined areas of regulatory jurisdication and to
- Senate Report No. 870, at p.
12.
- See also, Senate Report No. 870 p. 11; Remarks of Mr. Price during House debate, 105 Cong. Rec. 17634, September 11, 1959-T 105 Cong. Rec. 7524, May 19, 19S9.
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A-19 permit the Commission to discontinue its regulatory responsibil-ities in those areas. It is also fully consistent with the expressed intent of Congress as evidenced in the following excerpt from the House debate: "Mr. Gross: Mr. Speaker, reserving the right to object, will the gentlemen explain this bill? "Mr. Price: This is a bill reported unanimously from the Joint Committee on Atomic Energy which would amend the Atomic Energy Act with regard to setting up procedures under which there would be greater participation at the State and local level. Lengthy hearings were held on this bill. It has been supported by the principal State organiza-tions, including the Council of State Governments, the Governors Conference, the National Association of Attorneys General, and the Southern Governors Conference. The bill represents months of effort to bring this program a little closer to the States and to have greater participation at the State level. "Mr. Gross: Does this provide for an increase in Federal spending? "Mr. Price: No, it does not. "Mr. Gross: Nor an increase in personnel? "Mr. Price: No. "Mr. Gross: It does not open the door to more spending by the States or the setting up of a program that will eventually call for more spending on the part of the Federal Government? "Mr. Price: I do not see how it could open the door to any large-scale spending. "Mr. Van Zandt: Mr Speaker, will the gentleman yield? "Mr. Gross: I yield to the gentleman from Pennsylvania. 1718 254
A-20 "Mr. Price: Permit me to say to the gentleman from Iowa, who mentioned additional personnel, that it could eventually involve some expenditure for training and inspection of personnel who would work with and for State and local governments as they set up their programs, but it would be a negligible amount. "Mr. Gross: Mr. Speaker, I withdraw my reservation of cbjection. "Mr. Van Zandt: Mr. Speaker, I should like to ask the gentleman, is it not true that as the atomic energy field is further explored and developed, especially in the peacetime uses of the atom, that the States and local communities must come into the effort? "Mr. Price: That is true? "Mr. Van Zandt: All we are trying to do here is to authorize the AEC to prepare a set of regulations that will assist the several States and communities in administering their affairs in the peaceful use of the atom. There might be some expenses in training personnel and in administering such a program, but it would be minute, compared to the AEC budget as a whole. "Mr. Price: Yes, this is the type of legislation sought by some State governments. "Mr. Gross: Mr. Speaker, further reserving the right to object, will this provide any program comparable with civil defense attempts to expand in munici-palities and other local subdivisions of government? "Mr. Price: No; it would not. The most you could anticipate would be inspectors or licensing personnel or people who might be called upon to assist the State government in training inspectors. "Mr. Van Zandt: All this would do is this: It would permit the Federal Government to eventually withdraw from the area where the States and local communities would have jurisdiction over certain types of 1718 255
A-21 materials and give them the right of administer-ing their affairs. It applies principally to the use of radioactive isotopes. "Mr. Gross: Mr. Speaker, I withdraw my reservation of objection. "The Speaker: Is there objection to the present consideration of the Senate bill? "There was no objection."* 3. Preemption The following discussion relates to the current status of the preemption question. Since the Commission has recently requested the staff to conduct a study of the policy and legal aspects of preemption, the focus of the following discussion primarily addresses the preemption aspects of the Agreement State Program only. Despite the care with which the Federal-State amendment was drafted, the States and the AEC were faced almost immediately with the problem of distinguishing the areas in which State regulation was permitted from those areas in which State regulation was not permitted because regulation of the activity in question was preempted by the Federal government. The early cases were reflected in a formal interpretation prepared by the General Counsel of the Atomic Energy Commission, published and effective May 3, 1959 (34 FR 7272; reprinted at 10 CFR Section 8.4. This interpretation concluded: "(i) It seems complet-ly clear that the Congress, in enacting section 274, intended to preempt to the Federal Government the total responsibility and authority for regulating, from the standpoint of radiological health and safety, the specified nuclear facilities and materials; that it stated that intent unequivocally; and that the enactment of section 274 effectively carried out the Congressional intent, subject to the arrangement for limited relinquishment of AEC's regulatory authority and assumption thereof by states in areas permitted, and subject to conditions imposed, by section 274.9 (Footnote omitted) ^105 Cong. Rec. 17633, September 11, 1959. 1718 25L6
A-22 "(j) Thus, under the pattern of the Atomic Energy Act, as amended by section 274, States which have not entered into a section 274 agreement with the AEC are without authority to license or regulate, from the standpoint of radiological health and safety, byproduct, source, and special nuclear material or production and utilization facilities. Even those States which have entered into a section 274 agreement with the AEC (Agreement States) lack authority to license or regulate, from the standpoint of radiological health and safety, the construction and operation of production and utilization facilities (including nuclear power plants) and other activities reserved to the AEC by section 274c. (To the extent that Agreement States have authority to regulate byproduct, source, and special nuclear material, their section 274 Agreements require them to use their best efforts to assure that their regulatory programs for protection against radiation hazards will continue to be compatible with the AEC's program for the regulation of byproduct, source and special nuclear material.) "(k) The following judical precedents and legal authorities support the foregoing conclusions: Northern California Ass'n, Etc. v. Public Utilities Commission, 37 Cal. Rep. 432, 390 P. 2d 300 (1964); Boswell v. City of Long Beach, CCH Atomic Energy Law Reports, par. 4045 (1960); Opinion of the Attorney General of Michigan (Oct. 31; 1962); Opinion of Attorney General of South Dakota (July 23, 1964); New York State Bar Association, Committee on Atomic Energy, State Jurisdiction to Regulate Atomic Activities (July 12, 1963). No precedents or authorities to the contrary have come to our attention." The view expressed in this interpretation has been adopted by the courts in subsequent cases, most notably in Northern States Power Company v. The State of Minnesota, 447 F. 2d 1143 1718 257
A-23 (1971), affirmed without opinion 405 U.S. 1035 (1972), where the court held:* "Accordingly, for the reasons stated, we hold that the federal government has exclusive authority under the doctrine of preemption to regulate the construction and operation of nuclear power plants, which necessarily includes regulation of the levels of radioactive effluents discharged from the plant."** For a lengthy treatment of Federal preemption in the context of State legislation seeking to impose a moratorium on the construc-tion of nuclear power plants, see " Nuclear ' Moratorium' Legislation in the States and The Supremacy Clause: A Case of Express Preemption," November 1975, an independent study by Arthur W. Murphy, Professor of Law, Columbia University Law School, and D. Bruce LaPierre, Associate in Law, Columbia University Law School, prepared under contract with the Atomic Industrial Forum, Inc.8 The Study adopts the view that section 274 of the Atomic Energy Act of 1954, as amended, expressly provides for Federal preemption. The following excerpt is taken from pp. 86-89 of the study:
- See also Train v. Colorado Public Interest Research Group Inc.,
et al., 426 U.S. 1, June 1, 1976, in which the United States Supreme Court rejected the view that "the AEC must defer to the EPA in the setting of effluent limitation for AEC-regulated materials--that, for example, NRC licenses must conform to permits issued under the FWPCA.. Instead the Court relied on Senator Muskie's specific assurances that "the FWPCA would not 'in any way affect' the regu-latory powers of the AEC..." and that "the AEC was to retain full authority to regulate the materials covered by the Atomic Energy Act, unaltered by the exercise of regulatory authority by any agency under the FWPCA.. " citing Northern States Power Co. v. Minnesota, and held that "the legislative history (of the FWPCA) reflects, on balance, an intention to preserve the pre-existing regulatory plan. " and that "the ' pollutants' subject to regula-tion under the FWPCA do not include source, byproduct, and special nuclear materials, and that the EPA Administrator has acted in accordance with his statutory mandate in declining to regulate the discharge of such materials.
- 447 F.2nd 1143 at 1154.
1718 25HB
A-24 "C. Express Preemption and State Regulation of the Radiation Hazards of Nuclear Power Plants The District Court in Northern States Power found express preemption of the regulation of the radioactive effluents ofnuclearpowerplantsinthe'unambig9uous mandate' of section 274 of the Atomic Energy Act.3 The Court of Appeals did not find express preemption--at least in part, it would seem because the parties conceded that 'no provision of the Atomic Energy Act expressly declares that the deveral government shall have the sole and exclusive authority to regulate radiation emissions for nuclear power plants.'ato This court, however, did find implied preemption,311 and most commentators have treated the question of preemption in the field of nuclear energy in terms of implied preemption.312 While, as noted H3UU 320 F. Supp. at 177. The case is discussed more completely at notes 166-170 supra. "sto 447 F.2d at 1147. "att Id. at 1147-1154. "312 In a thorough consideration of the preemptive scope of the 1954 Act which was written before the enactment of section 274 and which relied on the doctrine of implied preemption, the authors found a broad degree of federal supersession of state regulation of nuclear power plants. Atoms and the Law, supra note 38, 1047-1074. Other commentators, writing after the enactment of section 274 and continuing to rely on the doctrine of implied preemption have reached the same conclusion. See, e.g.2 Helman, supra note 154, 56-57; Estep & Adelman supra note 250, 58-63; Cavers, State Responsibility in the Regulation of Atomic Reactors, 50 Ky. L.J. 28 (1961); Upton and Ehren, Federal and State Regulation of Transportation of Atomic Materials, 2 Atomic Energy L.J. 123 (1961). Cf. Freedman, Nuisance, Ultrahazardous Activities, and the Atomic Reactor, 30 Temp. L.Q. 77 (1957). In regard to a proposal to amend the Atomic Energy Act to authorize the Commission to furnish peaceful nuclear expiusion services, there was a substantial controversy whether this type of government activity preempted state regulation. Compare U.S.A.E.C. (Staff Memorandum of the Office of the General Counsel), State and Local Regulation Affecting Performance of Commercial Plowshare Projects,12 Atomic Energy L.J. 184 (1970) with Engdahl, State Power over Plowshare: The Constitutional Framework, 14 Atomic Energy L.J. 243 (1973). 1718 259
A-25 below, it is our view that even under an implied preemption theory the states are precluded from regulating nuclear power plants on the basis of the radiation hazards posed by these facilities,ala we believe that the District Court was right.314 "As discussed extensively above,als Section 274 constitutes an express congressional declaration that radiation hazards arising from byproduct, source, and special nuclear materials are to be within the exclusive jurisdiction of the NRC except to the extent that the Commission's authority may, by agreement, be relinquished to a state. More importantly, this section also constitutes an express congressional declaration that the construction and operation of nuclear power plants is to remain the exclusive responsibility of the NRC. Notwithstanding the fact that subsection k of Section 274 raises some uncertainty as to the preemptive scope of the federal statute where a state purports to regulate Commission licensed activities for purposes other than protection against radiation hazards,als the congressional declaration of the preemptive scope of the 1954 Act is an unusually precise statement of the broad scope of exclusive federal power over the regulation of nuclear power reactors in regard to radiation hazards. "In most cases where Congress enacts an express preemption provision, there can remain some doubt as to its precise scope because Congress is entering a field of preexisting state regulation and it is reasonable to assume that the intended preemptive effect of the statute only reaches state laws similar to those which Congress determined should be superseded by the federal statute. Although in such a situation a court may later extend the preemptive reach of the federal statute to new types of state laws where preemption is judged to be consistent with the legislative history and purpose of the statute, a court also has some freedom to give a narrow reading to the preemptive is judged tc be consistent with the legislative history and purpose of the statute, a court also has some freedom to give a narrow reading to the preemptive scope HJ1J See note 320 infra and accompanying text. H314 See note 166 supra. H31s See Part II B supra. H316 See notes 84, 85 supra and accompanying text 1718 260
A-26 of the statute.317 In contrast to this normal set of circumstances, the congressional declaration in the Atomic Energy Act that federal regulation was to be exclusive was made in the context of total, existing, federal control and regulation. Thus, the determination by Congress that exclusive federal regulation was to be continued gives to the preemption provision a degree of precision in scope absent in other cases. In this context, the determination that exclusive federal regulation was to be continued constitutes an explicit statement of broad supersession of all state regulation of the construc-tion and operation of nuclear power plants for purposes of controlling radiation hazards.... .There is no room for any argument that state bills imposing a prohibition or moratorium on the construction of nuclear power plants are not within the intended scope of preemption because Congress did not directly contemplate this type of State ' regulation' in enacting section 274. This section of the Atomic Energy Act constitutes a precise and broad expression of the intent of Congress that the regulation of radiation hazards arising from the construction and operation of nuclear power plants is to remain the exclusive responsibility of the federal govern-ment; therefore, any state legislation purporting to regulate these facilities on the basis of their radiation hazards is superseded.319 "317 See the discussion of the Rice, Lowry and Tojany cases supra at notes 279, 292 and 298. $9 Although both the NRC and ERDA have commented on the California Initiative, neither agency has taken a firm position on whether the Initiative or similar state bills imposing a prohibition or a mora-torium on the construction of nuclear power plants are preempted. Both agencies have contented themselves with a vague reference to the Northern States Power case. See 121 Cong. Rec. E3074-3075 (daily ed. June 11, 1975); 121 Cong. Rec. E3114-3116 (daily ed. June 12, 1975). In reference to the Vermont statute (see note 233) supra and accom-panying text, the NRC has noted that its constitutionality under the supremacy clause would be placed "in sharper focus if the Vermont Legislature sought to impose a radiological health and safety or common defense and security requirement within the context of an application before it to construct a ' nuclear fission plant.'" Letter from H. K. Shapar (Acting General Counsel, NRC) to Dr. Charles M. Spooner (Executive Director, Massachusetts Commission on Nuclear Safety) (May 9, 1975)... 1718 261
A-27 "But even if one does not find a unambiguous declaration of express preemption in section 274, the conclusion that state bills imposing a prohibition or moratorium on the construction of nuclear power plants are preempted under the doctrine of " implied" preemption is inescapable. Simply' stated, they are in irreconcilable conflict with the federal law in a number of respects.320, H320 As noted above, (see note 262 supra), when a state law conflicts with a federal statute it is invalid under the supremacy clause. In addition to the direct conflict posed by the prohibition and moratorium bills as a whole, it should also be noted that each of the conditions, considered individually, is invalid if it conflicts with the federal statute. For example, a requirement of " full compensation" for damages resulting from a nuclear power plant accident is in flat contradiction to the limitation on liability imposed by the Price-Anderson Act. See note 87 supra and accompanying text. Similarly, to the extent that state regulation of nuclear power plant safety systems, disposal of reactor wastes, transportation of nuclear mate-rials to and from plants, and security requirements to guard against sabotage conflict directly with the federal requirements, they are preempted. Moreover, in view of a congressional intent to occupy the field of nuclear power plant regulation which arises from a considera-tion of the presumptive indices of legislative history (see note 73 sopra), the national interest in this area (see notes 70, 72 supra), and the pervasive scheme of federal regulation (see notes 108-117, 133-139 supra, and accompanying text), state regulation of these radiation hazard aspects of nuclear power plants is also preempted even when the degree of conflicts falls short of direct interference. See notes 263, 26 supra and accompanying text. Thus, even under the rule of implied preemption, state regulation of the sort contemplate : by the 1975 prohibition and moratorium bills is superseded. It should be noted however, that under either an express or an implied preemption analysis the states are free to enforce NRC regulations. See Atoms and the Law, supra note 38, 1071-1072, Askew v. American Waterways Operators Inc. 411 U.S. 325 (1973). Thus, the enforcement provisions of the 1975 Oregon statute (see note 193 supra) are valid, at least to the extent that they are not used as a subterfuge to harass nuclear power plants." l718 262 1 o e
m ' La '
- J L -_- - _.-
s. -_. ~ ~ i _= f M A-28 '.s However, this picture was changed with the enactment of the Clean Air Act Amendments of 1977 (Public Law 95-95). Under the 1977 Clean Air Act Amendments, States have authority to regulate radioactive air pollutants. States may promulgate emission standards and other requirements where no federal standards exist, and, where federal standards do exist, may promulgate more stringent standards. 5 The NRC retains a veto power over any State standards or ^, emission limitations that are appiicable to NRC licensed facilities and would endanger public health or safety. B. Current Status W 1. Size and Activities of Current Program F Although Section 274 of the Act was enacted in 1959, the first agreement with a State (Kentucky) became effective on March 26, 1962. At the end of 1961 there were approximately 10,000 materials licenses under the jurisdiction of the AEC. By the end of 1976 there were 25 Agreement States which have jurisdiction over about 11,000 materials licenses and the NRC has jurisdiction over about 8,800 licenses. Thus, the Agreement States 's regulate about 56% of the current materials licenses in i effect in the United States. 5 Twenty-two of the 25 Agreement States entered into agreements in the years 1962 through.1969. Only three states have entered into agreements since that time, New Mexico (1974), Nevada (1972), and Maryland (1971). There appear to be four principal reasons why interest was greater in the early days of the program: k During the early days there were a certain element of promotion by the AEC and vigorous encouragement for States to become Agreement States. Numerous discussions were held with State officials and State a i legislatures and exhibits were presented at numerous professional society meetings to advertise the program. States' rights philosophy had a significant impact as reflected by the entry of the southern States into agreement status in the early years. The States viewed this program as one in which the Federal Government was f relinquishing to the States authorities which wer:. similar to those exercized by the States in non-nuclear public health matters. 1718 263 c ~ 'A g n* e a h
A-29 . The Southern and Western Interstate Nuclear Boards brought this program to the attention of high-level State officials in their member States and this, the task force believes, influenced some States to enter agreements. . Up until 1969 when it switched to block grants, HEW provided categorical funds to State governments and some of the categorical funds were provided directly to the radiation control programs. The funds were used in x-ray, radioactive materials and environmental surveillance and were a factor in encourag',some States to enter into agreements with NRC. Now, State radiation control programs no longer receive direct or identifiable Federal funding. Indirectly, some State radiation control programs still have access to HEW funds through the block grant program but must compete for it against other programs in State health departments. SP projects a possible agreement with Michigan in 1978. We have been actively engaged in negotiation with Michigan since 1975. If the Michigan agreement were consummated, it would mean the transfer of about 500 licenses to State control. Negotiations with Illinois have been intense since 1976 and funding for staff appears to be the chief obstacle to agreement Status status. Other inquiries of a preliminary nature have been received from Rhode Island and Indiana. It appears that there is some renewed interest of States entering into agreements with NRC. Nevertheless, the ultimate consummation of an agreement is highly dependent upon a State's internal political situation and budget constraints. The NRC post-agreement relationships with Agreement States center upon a cooperative program with NRC providing assistance to the States to enable them to conduct effective radiation control programs for agreement materials. This cooperative attitude is mandated by section 274 of the Act. The principal elements of our post-agreement relations are as follows: An extensive exchange of information program is conducted regarding licensing and inspection statistics, incident information, technical information and changes in licensing and inspection practices and procedures. . Periodic review meetings are held with the States which cover all aspects of their conduct of the program. This is covered in detail below. 1718 264
A-30 . Copies of all licenses and amendments issued by the States are furnished to SP. Each copy is reviewed for improper authorizations, drafting errors, use of appro-priate conditions and any unique or unusual authoriza-tions. Copies of certain classes of licenses are distributed to appropriate NRC groups and to other Agreement States. . NRC provides technical assistance of both a routine nature and in-depth assistance. Much of NRC's daily contact is to provide routine advice on regulatory matters to State officials. Examples of technical assistance of a greater magnitude are the review of the Kentucky burial ground by a team of NRC officials representing various specialities; the cooperative effort with the State of Nevada on a problem of pilferage of licensed m1terial from a licensed burial site; and assistance to tne State of Maryland in evaluating corrective actions taken by a major licensed facility fabricating large gamma sources. In addition, NRC conducts an annual meeting of all Agreen=nt States where topics of broad interest to NRC and the States are discussed. . NRC conducts a training program for both non-Agreement and Agreement State personnel. The tra)7ing budget for FY 1978 is $240,000. Courses include a Lasic health physics course, an inspection procedures course, a licensing orientation course and topical courses in medical uses of radioisotopes, industrial radiography, program management and others. Some of these are given in-house with assistance from various NRC offices and others are given under contract arrar.gements. 2. NRC PROGRAM FOR MAINTAINING ADEQUACY AND COMPATIBILITY a. Statutory Obligations Section 274g directs the Commission to cooperate with the States in the formulation of standards for protection against radiation hazards to assure that State and Commission programs will be coordinated and compatible. Further, section 274j provides that the Commission may terminate or suspend its agreement and reassert its regulatory authority, after providing opportunity for hearing to the State, if the Commission finds that such action is required to protect the public health and safety. An agreement may also be terminated at the 1718 265
A-31 request of the Governor if the Commission finds such termination is required to protect the public health and safety. Thus, one reason for conducting periodic reviews of the Agreement State program is to let NRC know whether or not to exercise the recall authority given under section 274j of the Act. In addition to the above statutory provisions, each agreement entered into with a State recognizes the importance of maintaining compatible programs and of providing for reciprocal recognition of licenses. Each agreement contains an article pledging the use of best efforts on the part of the Commission and the State to achieve coordinated and compatible programs. In the initial per,od following the first agreement (with Kentucky on March 26, 1962), the States were expected to carry out the regulatory responsibilites under the agree-ment without " oversight" by AEC. This philosophy changed in 1965 when AEC decided to make a formal annual redetermination of State adequacy and continuing compatibility. This chunge was prompted by the Department of Labor's regulations for radiation safety anc health standards under the Walsh-Healey Public Contracts Act. The change was implemented by a formal review process. Currently, NRC conducts an onsite review of each Agreement State program at least annually for adequacy and compati-bility with the Commission's program for regulating like material. To date, there has not been a formal negative finding on either score. From time to time, the finding of adequacy and compatibility has been held up until a State has resolved a particular problem. b. Review of Agreement State Programs (1) General The onsite review of Agreement State programs covers program administration, organization, personnel resources, regulations, adequacy of the licens:c; and inspection program including a selective examination of the license, inspection and enforcement files, and accompaniment of State personnel during inspections of State licensees. \\ .3 ii i 1718 266
A-32 Cc.2ments are made on all areas of the State's program for regulation of agreement materials where improvement can be made, as discussed in Section (2) below. In order to assure that management officials of the State are made aware of these comments, NRC holds a summary treting with the State Health Officer (or equivalent) to d u uss the comments. The comments are confirmed in writing after the meeting. If continuing problems exist in the State program or if it is felt that the State is failing to give sufficier.t attention to a significant matter, NRC holds follow-up meetings with appropriate State officials. The entire review process is not designed for day-to-day supervision over all actions the State takes. Rather, it is a program review consisting of a sampling of a State's activites with emphasis on program administration, staffing, major licensed activities, and unusual authorizations. (2) Review Meetings An orientation meeting is normally scheduled with new Agreement States within three months of the effective date of the Agreement, and then at six-month intervals until the program is firmly established. Current practice is to subsequently meet with each Agreement State at approxi-mately yearly intervals. These meetings are structured to allow a review and evaluation of six major elements of the State's radiation control program for agreement materials as fo110ws: 7 . Organization - Organizational structure, and use af advisory commit-tees and consultants. . Administration - Budget, salary, support services, laboratory support, administrative procedures, and emergency response plans for agreement materials. Personnel Qualifications, recruiting, duties, training, and number of personnel. . Regulations - Compatibility with NRC regulations, and frequency and procedures for revising regulations. 1718 267
A-33 Licensing - Procedures for processing appli-cations, adequacy of evaluations, review of nonroutine medical procedures, and use of standard conditions. . Compliance - Inspection procedures, priority system, status of inspections, adequacy of inspector's performance, response to incidents, adequacy of inspection reports, enforcement procedures, conduct of independent measurements. lhe are 30 indicators ard 84 guides for acceptable practice which are considered in the evaluation of a State's program. (3) Summary Discussions SP staff discusses any specific problem areas that have been noted prior to the meeting, that arise during the meeting, or chat the State requests advice upon. The review meetings also provide an opportunity to assess the need for additional training of State personnel. At the conclusion of each review meeting, a summary discussion is held with the State program director and his staff to provide detailed comments on the review including the license and inspection file review and the accompaniment of the State inspector (s). A management summary discussion is also held, normally at the level of the State Health Officer (or equivalent) or his designee. The Program Director is normally present at this discussion as well as other management or staff members as the State officials desire. In a clear, concise manner, the six program areas are emphasized and the reviewer's pertinent findings are presented. (4) Documentation of Findings When the NRC reviewer returns to the office, an oral summary of the meeting is provided to the Assistant Director for State Agreements Program. The reviewer then prepares formal letters to transmit and confirm the reviewer's findings to appropriate State officials; these are placed in the Commission and State Public Document Rooms. The 1718 268
A-34 formal comments are generally consistent with the comments presented during the oral summary discussion with State management personnel. (5) Review of all State Licenses The Agreement States routinely provide copies of all licenses and amendments issued by their regulatory agency to the Office of State Programs. Copies of certain types of licenses are distributed to various groups within NRC. SP reviews all State licenses and amendments for the following items: Improper authorizations, Drafting errors, Appropriate license conditions, Unique or unusual authorizations, Safeguards information. Licenses or amendments may be selected as a result of this review to be included in the license file review conducted during the next routine, onsite review meeting with the State. License file reviews usually include an examination of the license application and other file materials which support issuance of the license. (6) Exchange of Information Program The NRC coordinates an extensive exchange of information program with the Agreement States which includes exchanging statistical information on licensing and inspection activi-ties, incidents, and technical matters. Information is provided to the States on new NRC licensing and inspection practices and technical assistance is given to States when requested or deemed necessary. The type and frequency of requests for technical assistance provide the NRC staff with some feel for the competence of the State's personnel. 3. Formal Redetermination of Compatibility NRC began making formal redeterminations of compatibility of Agreement State programs in 1965. These are conducted at apprcx-imately one year intervals. These determinations, including the periodic reviews, fulfill the following purposes: Provide the staff with a consolidated assessment of the regulatory programs of all Agreement State agencies. 1718 269
A-35 Provide assurance that each State continues to conduct a program adequate to protect the public health and safety. Provide a basis for NRC to fulfill its commitments to the Department of Labor. Help to fulfill NRC's commitment to maintain coordi-nated and compatible programs as expressed in the best efforts article of each agreement. Help to maintain a high degree of uniformity in dealing with licensees, particularly those who operate in multiple jurisdictions and who distribute products across State boundaries. a. Experience NRC's program of annually reviewing the adequacy and compatibility of the Agreement State radiation control programs has shown that the States conduct effective radia-tion control programs. When deficiencies in State programs have been noted, NRC has provided technical advice, assist-ance, and training to the State, resulting in improved performance of these programs. With its considerable resources, NRC has given the States assistance in reviewing cases that are technically complex, advice on improving management techniques, and supplementary training to State personnel. Meetings with top management personnel in the State organization have been held when necessary to assure that the States expend the necessary resources to maintain their programs at an acceptable level. b. What Actions Can NRC Take The actions which NRC can take to assure continued adequacy and compatibility of the Agreement State programs range from the "best efforts" pledge of mutual cooperation.and assistance to institution of proceedings to revoke an Agreement under section 274j. The latter type of action has never been taken and thus there is no precedent upon which to judge how such a proceeding would be conducted. Section 274j provides that the Commission must notify the State of the intent to revoke the agreement, give the State opportunity for a hearing and make a finding that the termination is required to protect the public health and safety. Between the two extremes of persuasion and revoca-tion,therearevaryingdegreesofactions".7t5anbe270 1 a r ')
A-36 taken under the present circumstances. These would be principally the escalation of discussions with the State personnel by increasing levels of NRC management. Associated with this could be escalated levels of discussion with higher management within the State lovernment, including the Office of the Governor. We 'ndicated in our December 22, 1976 response to GA0 tecommendations on the Agreement State program that we wauld inform the Governor in those cases where we feel it necessary to correct severe program deficiencies. To date, we have not felt it necessary to bring such issue to the attention of an individual governor. c. Attitudes and Actions of the States There have been two areas of the individual Agreement State programs where NRC comments and recommendations have been most frequent over the years. The first relates to maintaining an adequate staff, both in numbers and o.a'ifications. This appears to be attributable, at least partially, to generally lower salary scales prevailing in State governments when compared with industry and the Federal government. As a result, a backlog in inspections and licensing actions develops When a vacancy occurs. To fill vacancies, the States frequently hire junior personnel with minimumal formal training and experience in radiological health and regulatory control. NRC's training program for State personnel, therefore, becomes an important factor in maintaining State programs that are adequate to protect the public health and safety. The second major area where recommendations have been made is the need for inspection procedures, particularly as they relate to the preparation of adequate inspection reports. Adequate reports are needed to document inspection findings and to provide sufficient support for taking enforcement action. Other frequent problems noted over the years have concerned program management, preparation of internal guides, and lack of licensing and enfercement procedures. With very few exceptions, NRC has found that all levels of State personnel, ranging from the staff to cabinet level officials are responsive to the comments, recommendations and concerns expressed by NRC through the review program. In those areas involving the technical aspects of their programs the States have generally taken effective action. 1718 271
A-37 In those areas involving expenditure of additional funds or increases in staff (aspects requiring gubernatorial or legislative action in some States), immediate actions cannot always be taken. NRC has found, however, in all cases that its comments and recommendations in these areas have been utilized to support their agencies' requests for increased budgeting and staffing. The States have been responsive to our training program and have periodically reaffirmed their full support for the program and on occasion have recommended that it be expanded to cover specific aspects where the States recognize a lack of technical expertise. In a few cases, intermediate levels of State management have not responded to the recommendations. Meetings with higher level State officials have been effective in resolving this type of problem. C. DECISION FACTORS 1. Trends in Federal / State Relations a. Agreement States Issues With enactment of section 274 in 1959, most States felt that it was a step toward the reinstatement of States' rights and were eager to assume this responsibility so that under the guidance of the AEC and through the cooperative efforts established by the Agreement a comprehensive State program would be developed closer to the licensee, and States would be better able to provide closer supervision and faster response. It was generally accepted that this arrangement would attract the growing nuclear industry to Agreement States. States also felt, and still do feel, that through the agreement it is possible to place the entire State regula-tory problem for ionizing radiation in one house. Historically, this has been the case in Agreement States. This incentive has diminished in importance in recent years. There are several factors that may have contributed to this change in attitude: The lack of interest in nuclear materials licensing and regulation as distinguished from licensing and regu?ation of facilities preempted to the NRC, and 1718 272
A-18 The implementation of revenue sharing which resulted in loss of direct funding and training support previously provided by EPA and HEW for State radio-logical health programs. In 1971, the Commissioner of Health of the City of New York (one of three regulatory agencies under the New York State Agreement), requested a grant from the Commission to help finance the City's licensing and regulation program. The Commission declined to provide a grant of operating funds. Subsequently, New York City adopted a fee schedule designed to recover the costs of inspections.* Later in 1971, during the annual meeting of Agreement States, most State representatives endorsed the New York City proposal and requested that the AEC provide funds for State rad'ological health programs by " changing Section 274 of the Atomic Energy Act to permit categorical grants to Agreement States." In early 1972, the Chairman of the Conference of Radiation Control Program Directors (CRCPD) wrote to the Chairman of the JCAE requesting financial support for the Agreement States and offering to appear before the JCAE to " plead our cause." Two years later, Representatives of the Western Interstate Nuclear Board (WINB), the Southern Interstate Nuclear Board (SINB), and the National Conference of Radiation Control Program Directors met separately with the Commissioners and with members and staff of the JCAE to review problems in State radiation control programs and to request Fed ('al assistance and funding. These same representatives later testified before the JCAE, along with Commissioner Doub and the Director of Regulation. During this session, Representative Holifield made it clear that he opposed the idea of direct Federal funding for Agreement States. Commissioner Doub responded that
- In 1976, following an audit of the Agreement State program, GA0 recom-mended NRC develop model State legislation for collecting user fees from radioactive material licensees.
Such model legislation was subsequently drafted and sent to the Office of Management and Budget with a request to forward it to the Council of State Governments (Attachment D). Copies were also distributed to Agreement and non-Agreement States. 1718 273
A-39 AEC staff was "taking a very hard look" at the question of funding. The AEC staff identified the following issues: Were AEC's then current activities for encouraging States to join the Agreement State Program sufficient, and should they be changed to increase the number of States participating in the program by instituting more intensive State liaison activities, by providing some degree of AEC financial cupport to the Agreement States, or by pursuing other iiministrative or legislative courses of action? The following recommendations were presented for the Commission's consideration: The AEC should continue to administer the Agreement State Program under the existing section 274; it should not seek an amendment to the Atomic Energy Act. AEC should expand and intensify its State liaison activities to encourage the States to join the Agreement State Program and to provide their own funding; the AEC should not undertake a general cost-sharing program with Agreement States. AEC should expand its State personnel training and onsite assistance programs. (The approximate cost was estimated to be $100,000.) The AEC should seek funds to support a pilot " seed money" program with three or four non-Agreement States in order to improve their radiological health programs and permit them to become Agreement States. These funds would be required over the next four years. These funds would not include costs for administration of a State Program. In October 1974, the AEC approved the first three redommen-dations but deferred the fourth to the Nuclear Regulatory Commission. This issue has not as yet been brought before the NRC. b. Related Issues Recent events at the State level indicate the increasing State interest and involvement in nuclear affairs. These 17i8 274
A-40 activities have sought either to limit nuclear power growth or to expand the scope of regulatory authority possessed by State officials. On election day in November 1976, residents of six States found anti-nuclear referenda on their ballots. Although all six were defeated, the issue continues to be controversial and widely discussed. On March 1, 1977, thirty-one communities in Vermont rejected future nuclear construction within their borders. New York City has banned the transportation of nuclear materials within city limits. California has created an Energy Resources Conservation and Development Commission with some functions which specifically duplicate those of the NRC. Other States, including Oregon and Illinois, have established power plant siting authorities with site review procedures overlapping those of the NRC. The States also utilize a nueber of existing mechanisms to involve themselves in nuclear affairs. State public utility commssions weigh the "n0ed for power" as a means for passing on the desirability of a nuclear plant. State health agencies have, of course, been traditionally concerned with the regulation of radiological effluents from nuclear power plants, and the NRC has worked with them in such areas as radiological monitoring. But there is a fine line between cooperation and direct action in preempted areas, and an increasing tendency for the States to cross that line--as, for example, in the case of the Oregon Department of Energy, which has set forth specific requirements for a contamination control program at the Trojan reactor, and is reviewing Trojan's radiological control program. The State Health Division will be responsible for carrying out an independent radiological control program for the State. There are several explanations for the new State activism on nuclear issues. Overall during the past decade, the States seem to be reasserting themselves and their rights on a variety of issues; nuclear power--whose radiological aspects have long been preempted and strongly controlled by the Federal Government--is an important and topical issue: This is particularly true because the importance of nuclear power has been magnified by the energy crunch, and the States have a leoitimate concern over assuring a long-term power supply which is both economical and reliable. As indicated on p. A-28, the Clean Air Act Amendments of 1977 authorize the States to regulate radioactive air pollutants. 1718 275
A-41 D. NRC OVERSIGHT One of the questions to be addressed by this study was to what extent the NRC should continue to oversee State performance. The basis for the continued oversight and compatibility review is two-fold: The provisions of section 274j of the Act provide that the Commission may terminate or suspend its agreement with a State and reassert its regulatory authority if it finds that such action is required to protect the public health and safety, and The AEC commitment to the Department of Labor which was intended to avoid dual regulation by Department of Labor in States operating under section 274 agreements. In 1972, the AEC reviewed the continuing compatibility program. Commissioner Ramey concluded that the AEC should continue to assess the post-ayreement aspects of a program and adequacy of a State's program. He also noted the strong commitment to the Department of Labor, including the statutory incorporation of the commitment into section 4(b)(1) of the Occupational Safety and Health Act of 1970. SP staff has discussed this subject with OSHA staff who expressed no opinions about the long-standing commitment or possible changes that might be made in the review process. OSHA staff indicated they would bring this subject to the attention of the newly appointed Assistant Secretary of OSHA. The task for.2 believes that these efforts should continue at about the same level as currently practiced. Generally speaking, this means a formal annual review of each Agreement State program and occasional special reviews to follow-up on particular problems or to address particular needs of the States. Although in some cases the States have not been able fully to respond to our comments, most States 'i"d the reviews helpful in bringing NRC views on how to conduct effective radiation control programs to the attention of management. E. RELATIONSHIP TO OTHER STUDIES Other NRC studies may impact upon the Agreement State Program. These are in various stages of consideration and are briefly discussed as follows. 1718 276
A-42 1. Regionalization of Certain NRC Activities In early 1976 the Commission requested the staff to determine if additional NRC functions and responsibilities including NRC-State liaison activities should be assigned to regional offices. Regionalization alternatives which were developed by the staff were State liaison only, expanded iiaison, liaison plus minimal decision capability, and liaison plus moderate decisional capability. As requested by the Commission, no recommendations were made by the staf f. Subsequently, the staff was requested to prepare action plans for implementing a State Liaison Officer (SLO) concept, develop a plan for regionalizing on a limited basis portions of the materials licensing and operator licensing programs, address possible transfer of some functions of the Office of Operating Reactors to the regions, address benefits and costs of conducting portions of environmental impact reviews at the regional level, and make recommendations regarding realignment of regional boundaries. The requested plans and papers are currently in various stages of preparation. The Commission specifically noted that a decision regarding the regionalization of operational functions associated with approving State Emergency Preparedness plans and evaluating Agreement State programs would be deferred pending an evaluation of the SLO concept. It is the opinion of the task force that regionalization moved will have little immediate effect on the Agreement State program. The task force expects the SLO's to serve as a source of information between both non-Agreement and Agreement States and the headquarters staff of the State Agreements Program. 2. NARM Study An internal NRC task force was created in 1976 to review the matter of regulation of naturally occurring and accelerator produced radioactive materials (NARM). The action was taken in response to requests received by NRC from the Agreement States and the Conference of Radiation Control Program Directors that NRC seek regulatory authority over these materials. The NARM task force includes representatives from SP, IE, NMSS, ELD and SD. Representatives from the U.S. Food and Drug Administration's Bureau of Radiological Health, EPA, the Agreement States and the Conference served as resource persons. The NARM task force's report was published by NRC in July 1977 as NUREG-0301 and a Federal Register notice was published i718 277
s_ A-43 announcing its availability and inviting public comments by September 19, 1977.8 The task force came to the following conclusions: "1. The regulation of naturally occurring and accelerator-produced radioactive material (NARM) is fragmented, nonuniform and incomplete at both the Federal and State level. Yet, these radioactive materials are widely used-excluding those who would be exempt from licensing, about 30% of all users of radioactive materials use NARM. There are an estimated 6,000 users of NARM at present. The use of accelerator produced radioisotopes, particularly in medicine, is growing rapidly. "2. One NARM radioisotope. 22cRa--is one of the most hazardous of radioactive materials. 22cRa is used by about 1/5 of all radioactive material users. Also, there are about 85,000 medical treatments using 22cRa each year. "3. All of the 25 Agreement States and five non-Agreement States have licensing programs covering NARM users. The Agreement States' programs for regulating NARM are compar-able to their programs for regulating byproduct, source and special nuclear materials under agreements with NRC. But there are seven States who exercise no regulatory control over NARM users, and the remaining States have contral programs which are variable in scope. There are no national, uniformly applied programs to regulate the design, fabrication and quality of sources and devices containing NARM or consumer product containing NARM which are distributed in interstate commerce. "4. Naturally occurring radioactive material (except source material) associated with the nuclear fuel cycle is only partially subject to NRC regulation, i.e., when it is asscciated with source or special nuclear material being used under an active NRC license. "S. Because of the fragmented and non-uniform controls ov'er radium and other NARM, information on the impact of the use of NARM on public health and safety is fragmentary. Thus, it is difficult to know, in an overall sense, whether proper protection is being provided to workers and the public. A number of the incidents involving NARM and other data, however, which have come to the attention of public health authorities give definite indications of unnecessary and possibly excessive radiation exposure of workers and the public. 1718 278
A-44 "6. Although outside the sccpe of this study, data and evidence gathered in support of this study showed that the regulatory control for radiation safety for accelerators (which can be used to produce NARM) may also be fragmented and incomplete."6 The NARM task force recommended that the NRC seek legislative authority to regulate naturally occurring and accelerator-produced radioactive materials. The Agreement State study task force concurs with this recommendation. Adverse implications for, and impact upon, existing Agreement State programs should be minimal except possibly for States receiving OSHA funds. If NRC were to regular.e NARM, OSHA funding for compliance programs for users cf these materials would probably cease. Non-Agreement States could be adversely affected if new Federal authority in these areas were t be misinterpreted by the public or by State officials as an opportunity to " turn back" State programs to the Federal government or to supersede existing regulatory programs in non-Agreement States, some of which are believed to be quite e'fective. Following analysis of the public comments and guidance from the Commission, the NARM task force will develop final recommenda-tions for consideration by the Commission. 3. Federal / State Regulation of Low-level Waste Burial Grounds The NRC Task Force Report on Review of the Federal / State Program For Regulation of Commercial Low-Level Radioactive Waste Burial Grounds was published for public comment in the Federal Register on March 10, 1977.3 The task force recommended that Federal control over the disposal of low-level waste should be increased by requiring joint Federal / State site approval, NRC licensing, Federal ownership of the land, and a Federally administered perpetual care program. If implemented, these recommendations will have substantial impact on the day-to-day procedures for licensing burial sites and for the continued involvement of the States in inspection, monitoring and perpetual care: they would involve both the States and Federal government in a joint site approval program, heavy direct State involvement in NRC licensing actions and most likely State inspections and monitoring under NRC contract in the operational and long term care phases. 1718 279
A-45 An analysis of public comments on the study was published in October 1977 (NUREG-0217, Supp. 1).4 The NRC Low-Level Radio-active Waste Management Program was also published in October 1977 (NUREG-0240).5 A Federal Register notice concerning the Commission's consideration of this report will be published shortly. 4. Generic Environmental Impact Statement on Uranium Hilling As a result of a petition filed by the Natural Resources Defense Council, Inc. on May 14, 1975, the Commission announced in the June 3, 1976 Federal Register that NRC would prepare a GEIS on the subject of uranium milling. The purpose of the GEIS is to assess the environmental impact of the uranium milling operations, including the management of uranium mill tailings. The statement is to include information pertinent to environmental impact from uranium mill operations in both Agreement and non-Agreement States. The draft GEIS will be published in the summer of 1978. In its announcement, the Commission did not agree to suspend licensing action on new mills or suspend present milling activities prior to completion of the GEIS. Any licensing actions taken during this period are subject to express conditions that approved waste generating processes and mill tailing management practices may be subject to revision in accordance with the conclusions of the final GEIS and any related rule-making. The Agreement States support the preparation of this GEIS and are cooperating with the NRC's contractor by providing the contractor with pertinent information and meeting with the contractor to discuss regulatory practices. Those Agreement States with active uranium mills have agreed to impose require-ments on licensees which may result from the conclusions of the final GEIS. The proposed scope and outline for the GEIS was published in the March 14, 1977 Federal Register requesting public comment. The task force anticipates that any new technical regulations, standards and criteria resulting from the GEIS will be implemented by the Agreement States as well as the NRC. 5. Inclusion of Reported Events in Abnormal Occurrence Reports The subject of whether certain events reported to Agreement State regulatory agencies should be included in NRC Abnormal Occurrence reports to Congress (as are events reported to NRC pursuant to section 208 of the Energy Reorganization Act of 1718 280
A-46 1974) was addressed by the Commission early in 1977. The Commission decided that such events should be included and handled in a manner consistent with handling of NRC licensee events. This decision was based on the Commission's desire that this information be disseminated as widely as possible in order to better inform the public. The staff understands the .J:' scion intends to have a Federal Register notice prepared for each 'eported Agreement State event as is the case for events reported by NRC licensees. The staff has implemented this program with the Agreement States. A telephone survey of about half of the Agreement States was made prior t' the Commission action. They generally did not object to tne events being included in reports to the Congress if the States were allowed to screen the events against established criteria. This is included in the implementa-tion plan. A few States objected to the new requirement for Federal Register notices, primarily on the grounds that States routinely make such information available to the public and that the report to the Congress is adequate to keep the public informed. The task force expects that the impact of this action on the NRC staff will be relatively minor although the extent of Congressional and public inquiries to NRC on these events, which are solely State-related, cannot be predicted. 6. Section 102 Siting Study In the fall of 1976, the Office of State Programs started a study on Efficiency in Federal / State Siting Actions.2 The basic objectives of the study were to: Identify key procedural and jurisdictional activity involved in reaching environmental decisions as related to Federal, State and private actions involving siting reviews. Determine the extent to which coordinated activities and long range planning actions affect the efficiency of environmental decisionmaking. Analyze options for coordinating and reaching environmental decisions more efficiently. Recommend, if appropriate, legislative changes and changes in site approval procedures of NRC, other Federal agencies and the States. 1718 281
A-47 NUREG-0195, published in May 1977, contains many substantive recommendations aimed at increasing the effectiveness of environmental decision making in connection with siting of nuclear utilization facilities.2 Many of these recommendations are being considered in connection with the Administration's nuclear licensing reform proposals. These recommendations generally call for an increased role for States in the licensing process. While the NUREG-0195 recommendations do not directly affect the Agreement State program, they are significant to all States and this task force generally support the conclusions of that report. The task force noted that preliminary drafts of the Administration's proposed licensing reform legislation would give States a larger role in assessing the environmental impacts of nuclear power plants. 7. Hydrologic Design Criteria for Water Control Structures Not Related to Radiological Safety and Constructed for Nuclear Power Plants Prior to publication of Regulatory Guide 4.12 for comment on the above subject, the following topics were addressed. These topics related to the expansion of NRC's jurisdiction including expansion to those areas where a State may have jurisdiction but its criteria are less stringent than NRC's, and the desirability of NRC developing standards vis-a-vis other Federal or State agencies. Twenty-nine States have laws in this subject area although some have minimal criteria. The Commission has requested the staff to initiate discussions and coordinate with interested agencies and that consideration be given to contacting the Office of Management and Budget (OMB) regarding a possible legislative approach. NRC staff is now engaged in discussions with other Federal agencies but has decided to delay approaching States for their views until a later date. This is to assure that there is reasonable agreement within the Federal Government on the nature of the problem and actions which may be desirable in the future. These activities do not appear to have any direct impact upon the Agreement State Program. 8. Cooperative NRC/USGS/ State Geological, Geophysical and Seismological Studies Geologists from the State surveys of Illinois, Indiana, Kentucky, Tennessee, Arkansas, and Missouri, faculty members of earth-science 1718 282
A-48 departments at St. Louis, Vanderbilt, and Purdue universities, and the universities of Pittsburgh and Kentucky, and U.S. Geological Survey staff members are participating in a cooperative geological, geophysical, and seismological study of the area within a 200-mile radius of New Madrid, Missouri. The study, funded in part by the U.S. Nuclear Regulatory Commission, is designed to define the structural setting and tectonic history of the area in order to permit realistic evaluations of earthquake risk in the siting of nuclear facilities. The first stage of this five year program is principally a data gathering phase. Maps are being prepared to show the distribution of aeromagnetic and gravity surveys completed, location of significant deep boreholes, with emphasis on those that encountered igneous rock; areas for which surface mapping has been completed; Precambrian topography; epicenters of historic seismicity; locations of reflection seis.nic traverses. The second stage will be aimed at providing new data. Current plans include deploying a seismograph array in the Wabash Valley area and field-mapping faults in the Reelfoot Lake Area, which is near the site of the largest reported earthquakes in central United States--the New Madrid earthquake sequence of 1811-1812. Aeromagnetic, ground magnetic, and gravity surveying will be performed in critical areas for which geophysical information is lacking. Samples und geophysical logs from significant deep oil tests will be studies, and isopach and structure maps will be constructed. The petrology of igneous rocks encountered in borings will be described, and the rocks will be dated radiometrically. Surface mapping programs will be conducted in localities selected on the basis of information derived from seismographic data geophysical surveys, subsurface studies, and high-altitude imagery. Known and suspected faults will be investigated by field examination, trenching, shallow borings, or refraction or reflection seismography. Causative mechanisms for earthquakes in the central United States probably will not be completely understood in the next five years. Coordinated research by some of the most able scientists in the region should furnish structural, tectonic, and seismic information that will aid in making realistic evaluations of seismic risks within the New Madrid area. Comparable cooperative studies are planned for the New England area and for the Nemaha Uplift area. The NRC Office of Nuclear 1718 283
A-49 Regulatory Research provides liaison between the NRC and the cooperative study groups. The results of these studies are not directly related to the Agreement State program but are illustrative of the type of activities NRC is involved in with States on a cooperative basis. This program is intended to provide an adequate scientific data base in the areas of higliest seismicity in the eastern U.S. to ameliorate controversies, speed up the licensing process and reduce costs. 1718 284
A-50 APPENDIX A ATTACMERP A Public Law 86-373 AN ET s.ee.mu.,2 3, i,s, tS.25981 To aruend the Atomic Energy Act et 1011. as nmended, wIth respect to cooperation with States. 1:e it emuted by the Senate and Horae of Repreuntatim of the " t
- Y ""
OninJ st.ita of.lva ri< a in rwayan am mWI, That the ful!owing section be added to the Atomic, ' wrgy Act of MI, as amended: "Sw. 274. Cooern.u sos h it M r.u ts.- ((]3,
- a. It is the puipose of this section-
.n uw Nu "(1) to secognize the interests of the 8tates in the peaceful uws m t., of atomic energy, and to clarify the respective re-ponsibilit ies under this Act of the States and the Conuni% ion with re pect to the regulation of hyproduct,sonice, and sin cial nuclear rnalerials;
- 92) to secognize the need, and establish program
- for, inop-eration between the States and the Conuni sion with respei r to control of radiation ha za rd.i a >>ocia tin l wit h tiae of such inaterials;
"(3) to pronnote an orderly segulatory pattein between the Conanission and State governtnents with res]n rt to tutelear development and use and regulation of hyprmluct, source, and special nuclear materials; '(4) to estahti h procedures and criteria for diccontinuance of certain of the Commission's regulatory responsibilities with respect to hyprmluct, source, and special nuclear material, and the assumption flieloof hy.the States: n < Tat, eM. "(T*) na provide for coordination of flie ilegeloprnent of rattia-n sn ,e,, tion standards for the guidance of Federal agericie and coopera-tion with the States; and 9 6) to recognize that, as the States improve their capabilities to regulate effe(tisely such materials, additional legi-lation rnay he desirable. "h. l{xcept as provided in subwetion c., the Cornmission is author-ized to enter into agreements with t'ie Governor of any State provid uree-erts with ing for discontinuance of the regulatory authority of t'he Commission "t't'8-under chapters G,7, and m, and section 161 of this Act, with re3 pert a use m l-to any one or raore of the following materials within the Statt - zil2, 22 % "U ) byproduct materials; "(2) source materials; "(3) special nuclear materials in <1uantities not sufficient to form a critical mass. 1)uring the duration of such an agreement it is recognized that the State shall have authority to regulate the materials covered by the agreement for the protection of the public health and safety from indiation hazards. "c. No ngreement entered into pursuant to subertion b. shall pro-Vide ft' discontinuance of any authority and the Commission shall retain au hority and responsibility with respect to regulation of-- "(1) che construction and operation of any production or utili-zation fa cihty; "(2) t he expert from or import into the 17nited States of by. pruluct, source, or special nuelcar material, or of any prmluction or utilization facility; "(3) the disposal into the ocean or sea of byproduct, source, or special nuclear waste materials as defined in regulations or orders of the Commission t "(4) tha disposal of such other byprmluct, source, or special nuclear material us the Commission determines by regulation or order shoubl, herause of the hazaids or guitential liazanis tiiertof, not he so ib-po,c0 of w it hout a license fiom t he Conunission. Not withstanding any agreement bet ween t he Conanission und any Stato pmwnant to subwetion b., the Conanis ion is auf horized by rule, regulation, or order to ininirc that the manufact urer, piore%or, or producer of any nguipn.. nt, device, connnodity, or ot her pr oduct ron-taining soun e, by pr odn i, or 3prcial nu. len2 mater ial shall not tiansfer H)MW% loll of Collt !ol sd - tirli pr EMlne l P\\rept [slithilallt lo a liceil5e kssuetl ,y the Ceiiniwon. l718 285
A-51 c miittons. "d. The t ommission shall enter into an agireinent under subser-tion h. of t his sertion with n ar Slate if-
- { 1) The tinveg nor of that State rettilles that the State has a ptogram for t he conttol of ladiation hazards adespiate lo ptotret the public health and wifety with respect to the innterials within the State rovered by the pto[wl agrectnent, aml that the State desites to assume regulatory res[winsibhty for such materials; and 9 2) the Conunission finds that the State program is compatible nith the Commission's program for the regulation of such mate-rials, and that the State program is ade.;uate to protect the puhhc health and safety with respect to the materials covered by the protei agreenwnt.
u ltention in "e. (1) liefore any agreement under subsection h. is signed by the L"- Cammission, the terms of the proinmed agreement ami of prolned ex- - m 5 2 emptions pursuant to subsection f. shall 1 c mblished once each week tot tour ionsecutive weeks in the Federal I egister: and such opluer-nm.. tunity for (omment by interested persons on the propted agr,eelnent and exemptions shall be allowed as the Commission determmes by tegulation or order to be appropriate. "U.n Each propowd agreement shall include the proposed effective date of such proposed ngreeinent or exem tions. The agicament and exPmptions shall be publishe11 in the Fei cial I!cgister within thirty days a fter signat ure by ihe Connuission and the Governor. Lie.nsir4 ee. "f. The Commission is authorized aint directed, by regulation or i n rmr.t = order, to grant such exemptions from the brensing rerpiirenmnts con-E m rMens. tained in chapters 6, 'i, and H, aml from its regulations applicable to liremees as the ('ommission finds necessary or approprb e to carry t out,any agreement entered into pursuant to subsection h. of tlns sect mn. "g. The Conunission is authorized and directed to cooperate with the States in the formulation of st andatds for piotection against hazards of radiation to assure that State aiul ('ommission programs for protection ngainst hazards of r diation will be coordinated ami rom pa t ible, rei cam "h. There is heichy established a Federal Itadiation Council, ron-at e c u eil. sist me of the Secre'tary of IIcalth, Education, nin! Welfare, the Chairman of the A tomic Energy Comnii% ion, the Secretary of Defen+. ihe Secretary of Commerce, the Secretary of Labor, or their designees, and such other members as hall le nppointed by the President. The Council shall consult qualified scientists and experts in rndiation matters, including the President of the Nntional Acad-emy of Sciences, the Chairman of the National Conunistee on Itadia-tion Protection and Measurement, and analified experts in the field of biology and medicine nnd in the fiehl of health physics. The Special Xssistant to the President for Science and Technology or his daignee,is authotized to atte nd meetings, participate in the de, libera-tions of, and to advise the Council. The Chairman of the Council shall le designated by the President, from time to time, from among the members of the ( ouncil. The Council shall advise the President with ITspect to radiation matters, directly or indilectiv affecting health, including guidance for all Federal ngencies in the f'ormulation of radiation standards und in the etablishment and execution of pn. grams of cooperation with States. The Ummril shall also, in r-form such other functions as the President may assign to it by Exn utisc orde.r. Inspections. "i. The Commimon in rar*ying out its licensing aint regMawy mgwinsihihties umler this Art is authori7ed to enler into agiernmnts with any State, or group of Slates, to perform inspections or odwr functions on a coopet ative beis as t he Conuni#u>n deems appropriate. The Omnmission u also authorized to provide t raining, with or with-out charge, to emi oyees of, and such other assistance to, any State d or political subdivision thereof or group of States as the Conmtission deems appropriate. Any such provision or assistance by the Com-mission shall take into account the additional exp's entering into an enses that tuay be incurred by a State as a concluence of the State agn ement with the Commissmn putsuant to subwetion h. 1718 286
A-52 "j. The ('oninn+ ion, upein its.su n n l he ive a fter t rawninble nolice T< rwinn tinn alul opportutiity for healing to lhe Si t'e u ith w hich nii ngs ceinent or vr-ant. tunict subwe tion b. has loronic ettertit. or upon tripHwi of the (lov-erivir of such Stale,inav terminate or smporul its agntnwnt uith t he State and teassett the IIrensmg and regulatory nulhmity sesled in it tuuler this \\rt if t he ('onunission lituls t hat s uch f er nunntion or sus-y pension is re< pored to proiert t hepublic heallh and sa fet v. n m T. *au. -k. Not hing in t his se : tion shall be enn.ti ne<i in alice e t he aut hor ity 73 GTAT. fal. of any State or local npncy to trgulate activities for purposes other than protection ngainst radiation hazard <. "1. With respect to each npplication for Corninission license nuthor. Notice or izing an nrtivity ns to which the Commission's authority is continued filing. puisuant to subsection c., the Commission shall give prornpt notice to t he State or States in u hieh the activit v will be conducted of the filing of the license npplication; and shall niford seasonable opportunity for State represchtatives to oIIer evidente, int erroga te w it nea+es, and udvi+ lhe l'onunission as to llje npplication without requiring such repreviitatives to take a position for or against the granting of the applicatiors. "ru. L agreement entered into umler sulnction b., nrul no exemp-tion granted pursuant to subsection f.,shall ntfert the authority of the Ccmmission under sub cetion Iril b. or i. to issue t ules, regulations, or 42 usc 7z01. ordets to protet t Ihe conunon de fense and security, to protect rest ricte<l data or to guard nguinst tho loss or diversion of special nuclear inate-rial. For purpus of subu etion tr,li., activities covercel by exernp-tions granted pursunnt to sulactinn f. shall be deemed to constitute activities anthorized puisuant to this Art ; nnd special nucienr rnaterial airpiirwl by any person pursunne to such nn exemption shall be deemed to have been acquired pursuant to section 53. 47 'IT 2073.
- n. As used in t hi-w tion, the tenu State' men ns any State, Tei n i Derint t t on.
tory, or pm. ion of f he l'nited States, the Canal Zone, l'uerto Hiro, and the District of Cohnubia.' Src.1 Scotion ins <if the Atomic F,ner gy Art of 1%i is amended 47 UT 713% by deleting ihe phrase "dist ributed innler the provisions of subse. Iion 2.3a.," froni t he seron.1 sentence. Approved September 23, 1959. 1718 287
.=-, j - 3 J ~ 4 = m .,____a__-_._ > a A-53 ![ i u j APPENDIX A ATTACHMENT B ~ AGREEMENT STATES
- Dates of Agreemer.c No. of w.
Agreement States Signed E' fective Licenses
- 1.
Kentucky 02/08/62 03/26/62 239 2. California 03/12/62 09/01/62 1,694 ~ 3. Mississippi 05/18/62 07/01/62 220 4. New York 10/15/62 10/15/62 1,890 5. Texas 01/10/63 03/01/53 1,310 6. Arkansas 05/21/63 07/01/63 252 7. Florida 07/01/64 07/01/64 873 ~ 8. North Carolina 07/21/64 08/01/64 398 9. Kansas 11/05/64 01/01/65 217 u 10. Oregon 06/22/65 07/01/65 192 11. Tennessee 08/12/65 09/01/65 425 12. New Hampshire 04/29/66 05/16/66 92 13. Alabama 07/25/66 10/01/66 345 i 14. Nebraska 08/29/66 10/01/66 106 9 15. Washington 12/06/66 12/31/66 330 16. Arizona 03/30/67 05/15/67 224 l-17. Louisiana 04/17/67 05/01/67 514 18. Colorado 01/16/68 02/01/68 320 19. Idaho 08/15/68 10/01/68 104 20. North Dakota 08/19/69 09/01/69 77 21. South Carolina 09/11/69 09/15/69 225 ~C 22. Georgia 12/09/69 12/15/69 472 i f N 23. Maryland 12/18/70 01/01/71 300 24. Nevada 05/25/72 07/01/72 83 p-= 25. New Mexico 04/03/74 05/01/74 124 )- TOTAL 11,026 l
- As of December 31, 1976.
Figures include licenses issued to persons using NARM. Approximately 5% of l '.' l Agreement State licenses are for NARM only. j s.., i .t 1718 288 i .~ ,,. - ~ - _, _ _ ....,,..... ~ - - - - - - -.
A-54 APPENDIX A ATTACHMENT C NON-AGREEMENT STATES
- No. of NRC Byproduct, State Source and SNM Licenses
- 1.
Alaska 25 2. Connecticut 263 3. Delaware 58 4. District of Columbia 183 5. Hawaii 77 6. Illinois 804 7. Indiana 307 8. Iowa 159 9. Maine 84 10. Massachusetts 569 11. Michigan 592 12. Minnesota 262 13. Missouri 328 14. Montana 67 15. New Jersey 643 16. Ohio 814 17. Oklahoma 235 18. Pennsylvania 948 19. Puerto Rico 73 20. Rhode Island 64 21. South Dakota 56 22. Utah 99 23. Vermont 44 24. Virginia 375 25. West Virginia 142 26. Wisconsin 319 27. Wyoming 64 28. Territories and possessions 24 TOTAL 8,768**
- As of December 31, 1976.
As a rule of thumb, about 85% of NRC licenses in non-Agreement States would be subject to a section 274 agreement.
- Total also includes licenses in Agreement States over which NRC retains jurisdiction (e.g., Federal Agencies).
The total in non-Agreement States is 7,678. 1718 289
A-55 APPENDIX A ATTACHMENT D Suggested Legislation (Title, enacting clause, etc.) 1 Section 1. /Short Title.7 This act may be cited as the 15 tat [ 2 Radiation User Fee Act. 1 Section 2. / Definitions./ As used in this act: 2 (a) Byproduct material means any radioactive material (except 3 special nuclear material) yielded in or made radioactive by exposure 4 to the radiation incident to the process of producing or utilizing 5 special nuclear material. 6 (b) Ionizing radiation means gamma rays and X-rays; alpha and 7 beta particles, high-speed electrons, neutrons, protons, and other 8 nuclear particles; but not sound or radio waves, or visible, 9 infrared, or ultraviolet light. 10 (c) License -- General and Specific 11 (1) General license means a license issued to a person 12 effective pursuant to regulations promulgated by the Lagencies or cite appropriate agenc y 1 undertheLStateRadiationControlAc[ 13 14 without the filing of an application to transfer, acquire, own, 15 possess or use quantities of, or devices or equipment utilizing by-1 The phrase "agencir or cite appropriate agency" appears in brackets throughout this _ct. The term is generally intended to include the Department of Health, the Department of Labor or any state agency having statutory authority for control of radiation hazards. Cite state act giving the affected agenctes of the state the authority to promulgate rules and regulations for the registration of radiation machines and issuance of licenses for radioactive , material.
,i n, Q ' Q, 1 .. _ _ -. ~ - ~c.--- ~ I A-56 w 16 product, source, special nuclear materials, or other radioactive 17 material occurring naturally or produced artificially. 18 (2) Specific license means a license, issued to a person 19 after application, to use, manufacture, produce, transfer, receive, / 20 acquire, own, or possess quantities of, or devices or equipment 21 utilizing byproduct, source, special nuclear materials, or other 22 radioactive material occurring naturally or produced artificially. 23 (d) Person means any individual, corporation, partnership, 24 firm, association, trust, estate, public or private institution, 25 group, agency, political subdivision of this state, any other state 26 or political subdivision or agency thereof, and any legal successor, s i 27 representative, agent, or agency of the foregoing, other than the 28 United States Nuclear Regulatory Commission, or any successor thereto, 29 and other than federal government agencies licensed by the United 30 States Nuclear Regulatory Commission, or any successor thereto. 31 (e) Radioactive material means any material (solid, liquid or 32 gas) which emits radiation spontaneously. 33 (f) Source materials means (1) uranium, thorium, or any other 34 material which the Governor declares by order to be source material 35 after the United States Nuclear Regulatory Commission, or any 36 successor thereto, has determined the material to be such; or (2) 37 ores containing one or more of the foregoing materials, in such 38 concentration as the Governor declares by order to be source material 39 after the United States Nuclear Regulatory Commission, or any 40 successor thereto, has determined the material in such concentration ~+ 17i8 29I 4
A-57 41 to be source material. 42 (g) Special nuclear material means (1) plutonium, uranium 233, 43 uranium enriched in the isotope 233 or in the isotope 235, and any 44 other material which the Governor declares by order to be special 45 nuclear material after the United States Nuclear Regulatory Commision, 46 or any successor thereto, has determined the material to be such, but 47 does not include source material; or (2) any material artificially 48 enriched by any of the foregoing, but does not include source material. 49 (h) Registration means registration with the O gencies or cite 50 appropriate agencz7 in accordance with regulations adopted pursuant to 51 the jtate Radiation Control Act_7. 52 (1) Radiation machine means any device capable of producing 53 radiation except these which produce radiation only from radioactive 54 materials. 55 (j) 5dditionaldefinitionsmaybeincluded.7 ~ 1 Section 3. / Radiation User Fees.7 2 (a) The 8gencies or cite appropriate agency shall prescribe 3 and collect such fee, charge or price as may be established by rule 4 or regulation from any person for radiation protection services 5 provided by the 8gencies or cite appropriate agenc y under the 8 tate 6 Radiation Control Act,7. 7 (b) Radiation protection services for which fees, charges or 8 prices may be established include (1) registration of radiation 9 machines, (2) issuance of specific licenses by the Ogencies or cite 10 appropriate agency 7 for radioactive materials, (3) inspections of 1718 292
A-58 11 registrants or licensees as authorized by the [ State Radiation 12 Control Ac 8 and (4) environmental surveillance activities conducted 13 'by the 8gencies or cite appropriate agenc y to assess the radio-14 logical impact upon the :nvironment of activities conducted by specific 15 licensees of the 8gencies or cite appropriate agenc 8 16 (c) The Ogencies or cite appropriate agenc y in determining 17 rates of such charges shall, as an objective, obtain suf ficient funds 18 therefrom to reimburse the state for partial costs of the 19 radiation protection services specified in paragraph (b) of this 20 section. The charges shall be related, in part, to the 21 actual costs incurred in administering the radiation protection 22 services specified in paragraph (b) of this section. In so doing, 23 the fagencies or cite appropriate agenc y shall take into account 24 any special arrangements between the state and a registrant or 25 licensee, or another state, or a federal agency whereby the cost of 26 the service is otherwise recovered. 1 Section 4. / Exemptions / 2 (a) Fees for registration c: radiation machines and for specific 3 licenses for radioactive material shall not be required for: 4 (1) an agency of the state or any political subdivision 5 thereof, or 6 (2) any person who the 8gencies or cite appropriate 7 agenc8 by rule or regulation determines are exempt 8 as authorized by law and such exemption is in the 9 public interest. 1718 293 a
A-59 10 (b) Any person may file application for exemption under this 11 paragraph for activities including, but not limited to, the use of 12 registered or licensed sources of radiation for educational or non-13 commercial public displays or scientific collections. 1 Section 6. / Enforcement.7 2 In any case where the 8gencies or cite appropriate agency 7 finds 3 a registrant or licensee has failed to pay the applicable fee, the 4 [genciesorciteappropriateagency/maysuspendorrevokethe 5 license or may issue such order as is determined to be approprir.te 6 or necessary to carry out the provisions of this Act and the /5 tate 7 Radiation Control Act7. 1 Section 7. /5everability.7 8nsert severability clause./ 1 Section 8. / Repeal.7 [nsert repealer clause.7 1 Section 9. / Effective Date.7 [nsert effective date./ 1718 294
APPENDIX B ANALYSIS OF STATE COMMENTS ON NUREG-0299 A. Comments Received In August 1977, NUREG-0299, " Task Force Report on the Agreement States Program - Draft," was published for comment.1 In response, 24 state com.ents listed below were received.* Respondents - States Abbreviation 1. Florida Dept. of Health and Rehabilitative Services (Telephone) Fla. DHRS 2. Louisiana Office of Conservation La. 3. California Dept. of Health Ca. 4. Arkansas Dept. of Health Ark. 5. Florida Dept. of Environmental Regulation Fla. DER 6. Indiana State Bd. of Health Ind. 7. Alabama Dept. of Public Health Ala. 8. Oregon Dept. of Human Resources Ore. 9. Washington Dept. of Social and Health Services Wa. 10. Kentucky Dept. for Human Resources Ky. 11. Rhode Island Dept. of Health R. I. 12. Michigan Governor's Office Mich. 13. Hawaii Dept. of Health Ha. 14. Maryland Dept. of Health and Mental Hygiene Md. 15. New York State Energy Office N. Y. 16. Nebraska Dept. of Health Nebr. 17. Kansas Dept. of Health and Environment Kans. 18. New Hampshire Dept. of Health and Welfare N.H. 19. Colorado Dept. of Health Colo. 20. Georgia Dept. of Human Resources Geo. 21. North Carolina Dept. of Human Resources N.C. 22. South Carolina Dept. of Health and Environmental Control S.C. 23. Texas Dept. of Health Tx. 24. New Mexico Health and Social Services Department N.M.
- Cepies of the State comments on USNRC Report NUREG-0299 have been placed in the NRC PDR and are available in the file for USNRC Report NUREG-0388.
1718 295
B-2 B. Summary of State Comments Question No. 1 - Encouraging New Agreement States The first issue raised by the report--Should NRC more vigorou::1y encourage new Agreement States-generated the greatest number of comments (16). Strong support for some kind of funding for Agreement States was expressed. Five States favored seed money and seven favored operating funds. Two States disagreed with the recommendation for seed money. Question No. 2 - Relinquishing Additional Authority Eleven comments were received. Strong support was expressed for the recommendation that NRC increase its funding of contracts with States for surveillance of environmental monitoring around reactors and radioactive material being transported. Nine States agreed with the recommendation. One State agency also reLommended authority over research reactors be transferred to States. There were no expressions of disagreement with the recommendation; however, two State comments were received which took no position on the question. Question No. 3 - Reassertion of NRC Authority Eight comments were received on this issue. Five States supported the interim recommendation to provide technical support to States on uranium mill EISs. One State disagreed. Question No. 4 - NRC Oversight Seven responses were received. Five States favored the recommendation for r.o change. One State offered a disagreeing view. Question No. 5 - Exclusive Jurisdiction The two recommendations under this question elicited the fewest responses of any in the report (five responses to the recommendation of no change were received and three responses to the recommendation on model agreements for cooperative studies were received). There were no views expressing disagreements and seven of the eight expressed agreement. Question No. 6 - Other NRC Studies Three States concurred with the task force view that only the low-level radwaste burial study will impact upon the Agreement States.
- However, two States sharply disagreed and pointed out that the NRC study on NARM will also have significant impact.
1718 296
' :.,-.= e ....._._._.___.._..._4_._.. , _. J r .... _... _ _ _.. _. -. ~. B-3 A summary of the comments is also presented in Table B-1. The task force's initial recommendations and detailed analyses of the comments y appear in the following section. The commenter abbreviations in parentheses throughout the analyses refer to responses which best 4, i represent the particular opinion. ^ C. Detailed Analysis 4 ) Question No. 1 Accepting that it is desirable for States to enter into agreements if they wish and are qualified to do so, should NRC more vigorously encourage new Agreement States? If such a program is decided upon, what should be its nature? Recommendation The task force recommended that the Commission seek authority from ^ the Congress to provide limited funds to those States which are working actively toward Agreement status. A sum not exceeding $5 million over a period of five years was recommended. The seed money would be used for laboratory and other technical equipment, facilities and office equipment and to hire trained professionals, e for their travel and transportation. The level of funding to the State would of course depend upon the level of licensing activity, the population and geographical area of the State. A similar recom-mendation was made to AEC by the last task force to look at the ~ Agreement State Program, but AEC failed to take final action because of the passage of the Energy Reorganization Act and the establishment of NRC. The task force rejected and indeed firmly opposed the idea of furnishing ~ ~- operating funds to the Agreement States on a continuing basis. Analysis of Comments This recommendation gensrated the greatest number of comments, and 67% (16 out of 24) of the States offerred comments on this issue. s Two of the States took no position on the recommendation. A total of 12 commentors expressed views supporting some measure of funding to encourage Agreement States. Five commentors supported [ 3 j the task force recommendation (Ind.). Two States disagreed with the recommendation (La. and Kans.) and took issue with the basis for the + recommendation. j 1718 297 j N ,.a.. f +
B-4 Seven States, in addition to rejecting the recommendation, advocated instead that NRC provide operating funds to the States (NY). In summary, of 14 States who took a position on this issue, 12 supported cither seed or operating funds. Only half of the States (7) advocated operating funds. No one advocated continuation of the current program of no funding. One State (Ore.) stated it would be reluctant to accept Federal funds, but nonetheless supported the idea of seed money. Question No. 2 Should NRC relinquish and the States assume additional responsibility? li changes are deemed desirable, what are they? Recommendation The task force concluded that no additional responsibilities should be transferred to the States at this time except for contract activities. The task force recommended that the Commission consider a greater level of funding for transportation surveillance contracts with the States. Analysis of Comments Of eleven comments received, none disagreed with the recommendation and 9 expressed agreement (N.Y., Fla.,). One State agency advocated turning over to the State regulation of research reactors (N.Y.). Question No. 3 Should NRC reassert authority in areas currently handled by the Agreement States? Recommendation The task force recommended that in the near term NRC render appro-priate assistance to Agreement States which request help in performing environmental assessments of proposed mills and tailing sites. Analysis of Comments Eight comments were received on this recommendation. (Five States (Ca., Ore., Colo., N.M. & N.H.) agreed with it. One State agency (Fla. DHRS) advocated that NRC license uranium mills but no reasons were given. 1718 298
B-5 Colorado, an Agreement State which licenses uranium mills, provided a lengthy comment which in principle supported the recommendation but differed in detail. Colorado advocated a shared regulatory program in which NRC reassert authority for the purpose cf conducting NEPA reviews and Agreement States carry out appropriate licensing and compliance functions. Question No. 4 What changes, if any, should be made in NRC's oversight role of State performance? Recommendation The task force did not believe that any significant changes should be made in the current oversight role. Analysis of Comments Seven responses were received. Five States agreed with the recommenda-tion. One State (Md.) disagreed and advocated procedural changes in the conduct of annual review meetings. Question No. 5 What should be the Commission's current posture on the question of exclusive Federal jurisdiction which is retained over health and safety matters? Recommendation (1) The task force recommended that the Commission should retair, the current regulatory scheme of exclusive jurisdiction over health and safety matters with respect to the use, possession and transfer of radioactive materials. (2) ThetaskforcerecommendedthatSPdevelopaseriesofEodel agreements in various areas of NRC's responsibilities for cooperative efforts with the States. Target areas might include need for power determinations, water quality matters, the siting and decommissioning of nuclear facilities, emergency preparedness and joint hearings. These model agreements should be developed in consultation with other NRC offices and after exploratory discussions with the States. Analysis of Comments Five comments were received on the first recommendation. Only three comments were received on the second recommendation. One 1718 299
B-6 State (La.) offered comments without expressing agreement or nonagreement. All other States supported the recommendations but did not provide detailed comment. Question No. 6 What are the impacts and relationships of other NRC studies which affect States which have recently been completed, or underway, or planned? Recommendation None. The task force opinion was that the only study which may have significant impact on States in the near future is the Study of Federal-State Regulation of Low-Level Waste Burial Grounds reportea to the Commission in March 1977 Analysis of Comments Five comments were received. Three of these supported the task force opinion without detailed comment. However, two States (Ky., Colo.) sharply disagreed and offered the opinion that the NRC study on NARM will have significant impact on all the States. 1718 300
TABLE B-1
SUMMARY
OF STATE COMMENTS ON ISSUES Issues Agree Disagree No Position But Comment Made No Comment 1. How should NRC encourage s new Agreement States? Option A - Continue Present Program 0 0 2 8
- 0ption B - Provide Seed Money 5
2 2 8 Option C - Provide Operating Funds 7 0 2 8 2. Should NRC relinquish and States assume additional y responsibility? A. Increase SNM Limits 0 0 2 13 B. Research Reactors 1 0 2 13 C. EIS 0 0 2 13 D. Operator Licensing 0 0 2 13
- E.
Contract Studies 9 0 2 13 N ~ 3. Should NRC reassert O authority in any areas? uo
- Interim:
Assist State environmental assessments 5 1 2 16
- Recommendation of task force in draft report Task force did not make recommendations on all issues.
tne a.m 7 9 1 o 1 1 2 9 C 1 o N e d s a e M us t s i nem l m l o a C n 0 0 o t 1 1 u B sn n o o i t S i E t a d U i S s n S o e I P mm ) N o o d O N c e e u S r n T i N e t E k n M a o M m C O e ( C e t r o 1 E g n T a B A s 1 0 0 2 d i T i E S D d L B F e A O cr T Y o R f AM k M s U a S T t e r e o r p g 5 4 3 3 e A r t t f y e ce a nc r v yat r oi o i r d ps d id t - t e uma t s a ea h ti w n t iid l er t s d i h srn u re o ea g oua g gp tl r e i pj e ao f nb c s? h r o o ail v~ r rd set l c csed o ee vl n e s i svu f vg 'C i a i d r t f oet on R se oo c? i pl s k a e N uh e mf s as n s sh g l ge e pe ggwl a c n dcr nm psi mi i noa t 'C a l xe ae otd id sili R e h uev? hh l nu u v r f Nb C o oy cc eet et yasu o s h n t s vms rs l hib e de o sone o e a n n u l l N of N D C O o s uo t eia tR i s or abt s aN t h a I h h B W A d S A W A nem 4. 5 6 mo 4DN c ) ._N c e / x C R [
R-1 REFERENCES 1. U.S. Nuclear Regulatory Commission, " Task Force Report on the Agreement States Program - Draft," USNRC Report NUREG-0299, August 1977. Available in NRC PDR in file for NUREG-0388. 2. Office of State Programs, " Improving Regulatory Effectiveness in Federal / State Siting Actions," USNRC Report NUREG-0195, May 1977. Available from National Technical Information Services (NTIS), Springfield, Virginia 22161. 3. U.S. Nuclear Regulatory Commission, "NRC Task Force Report on Review of the Federal / State Program for Regulation of Commercial Low-Level Radioactive Waste Burial Grounds," USNRC Report NUREG-0217, March 1977. Available from NTIS, Springfield, Virginia 22161, 4. U.S. Nuclear Regulatory Commission, "NRC Task Force Report on Review of the Federal / State Program for Regulation of Commercial Low-Level Radioactive Waste Burial Grounds, Analyses of Public Comments," USNRC Report NUREG-0217, Supp. 1, October 1977. Available from NTIS, Springfield, Virginia 22161. 5. U.S. Nuclear Regulatory Commission, "The Nuclear Regulatory Commission Low-level Radioactive Waste Management Program," USNRC Report NUREG-0240, October 1977. Available from NTIS, Springfield, Virginia 22161. 6. 0.A. Nussbuamer, et al., " Regulation of Naturally Occurring and Accelerator-Produced Radioactive Materials," USNRC Report NUREG-0301, July 1977. Available from NTIS, Springfield, Virginia 22161. 7. Office of State Programs, NRC, " Guide for Evaluation of Agreement State Radiation Control Programs," USNRC Publication NR-0SP-001 (1977). Available in source file for USNRC Report NUREG-0388. 8. A. W. Murphy and D. B. LaPierre, " Nuclear ' Moratorium' Legislation in the States and the Supremacy Clause: A Case of Express Preemption," Atomic Industrial Forum, Inc. (November 1977). Available in source file for USNRC Report NUREG-0388. 1718 303
UNITED STATES I l NUCLE AR REGUL ATORY COMMISSION W ASHINGTON. D. C. 20555 POST AGE AND F EES P AIO OFFICI AL SUSINE55 v" t o s t a te s %v< s s a. PENALTY FOR PRIV ATE USE. $300 J L J 1718 304 _ _ _.}}