ML20059J011
| ML20059J011 | |
| Person / Time | |
|---|---|
| Issue date: | 01/24/1994 |
| From: | NRC COMMISSION (OCM) |
| To: | |
| References | |
| REF-10CFR9.7 NUDOCS 9401310289 | |
| Download: ML20059J011 (98) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMIS SION g
t k6 BRIEFING ON OPTIONS FOR AGREEMENT STATE COMPATIBILITY POLICY LOCatiOD:
ROCRVILLE, MARYLAND D3I6*.
JANUARY 24, 1994 t
Pag 65:
75 PAGES NEALR.GROSSANDCO.,INC.
COURT REPORTERS AND TRANSCRIBERS 1323 Rhode Island Avenue, Northwest Washington, D.C.
20005
'8-(202) 234-4433 e
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a e
i DISCLAIMER o
This is an unofficial transcript of a meeting of the United States Nuclear Regulatory commission held on JANUARY 24, 1994, in the Commission's office at One White Flint North, Rockville, Maryland.
The meeting was open to public attendance and observation.
This transcript has not been reviewed, corrected or edited, and it may contain inaccuracies.
The transcript is intended solely for general informational purposes.
As provided by 10 CFR 9.103, it is not part of the formal or informal record of decision of the matters discussed.
Expressions of opinion in this transcript do not necessarily reflect final determination or beliefs.
No pleading or other paper may be filed with the commission in any proceeding t as the result of, or addressed to, any statement or argument contained herein, except as the commission may authorize.
O e
NEAL R. GROS $
court RfpottfR$ AHO TRANSCRtttRS 1313 rho 06 ISLAMO AVtHUt. H.W.
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1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BRIEFING ON OPTIONS FOR AGREEMENT STATE COMPATIBILITY POLICY PUBLIC MEETING Nuclear Regulatory Commission one White Flint North Rockville, Maryland Monday, January 24, 1994 The Commission met in open
- session, pursuant to
- notice, at 2:00 p.m.,
Ivan
- Selin, Chairman, presiding.
COMMISSIONERS PRESENT:
IVAN SELIN, Chairman of the Commission KENNETH C.
ROGERS, Commissioner FORREST J.
REMICK, Commissioner E.
GAIL de PLANQUE, Commissioner NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE tSLAND AVENUE, N W.
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2 STAFF SEATED AT THE COMMISSION TABLE:
t
?
- SAMUEL J. CHILK,. Secretary WILLIAM C.
PARLER, General Counsel s
JAMES TAYLOR, Executive Director for Operations RICHARD BANGART, Director, Office of State Programs
~
FRED _ COMBS, Chief, Operations Branch, NMSS SHELDON _ SCHWARTZ, Deput.y Director, Office of State Programs i
FRANK
- COSTANZI, Deputy
- Director, Division of Regulatory Applications, RES i
CARDELIA MAUPIN, Office of State Programs FRANCIS CAMERON, Office of the General Counsel I
'l NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE. N W j
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. 1 P-R-O-C-E-E-D-I-N-G-S 2
2:00 p.m.
3 CHAIRMAN SELIN:
Good afternoon, ladies
.j 4
and gentlemen.
5 The Commission is meeting to receive a 6
brief.ing from the staff on the draft' policy statement 7
for agreement state adequacy and compatibility.
As 8
I'm sure many of you know, the agreement state program 9
is the cornerstone of our overall program..for y
J 10 regulating commercial possession and use of nuclear 11 materials.
Section 274 of the Atomic Energy Act has 12 authorized the. Commission to enter into the 29 i
13 existing state agreements by which we discontinue our 14 regulatory authority and a state asserts its own, j
15
- However, this statute uses the terms l
16
" compatible and adequate to protect the public health 17 and safety, fundamental requirements," but which'are 18 not defined in the Act.
Therefore, among other j
19 initiatives to review the overall effectiveness of the 20 agreement state program, the Commission asked the i
21 staff to develop options for and examples illustrating 22 the application of a new compatibility policy that 23 would contain the right balance of uniformity and 24 flexicility.
The policy must allow the Commission to 25 make the required findings under Section 274 of the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N W.
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I 4.'
l l'
Atomic Energy Act and.must also allow'the states.a-2 degree of regulatory flexibility to address local 3
concerns.
s 4
Speaking for-myself and I think for the 5
Commission, we're quite pleased with the 6
responsiveness of the staff completing a thoughtful 7-draft policy paper in a timely manner.
I believe this J
8 is sort of the largest step forward conceptually in-9 distinguishing between adequacy and compatibility that 10 we've had since the program began.
But as is true any 11 time a new start is made, there are some questions 12 arise as we try to break some new ground.
We're very 13 interested to hear what you have to say.
i 14 Commissioners?
]
15 COMMISSIONER ROGERS: Just to what extent 16 this paper applies or does not apply to low-level-17 waste questions isn't clear.
I don't think that's 18 actually stated in here, whether it is part of the' l
19 considerations that went into the paper or whether the 20 low-level waste was.to be considered separately.
21 MR. TAYLOR:
Well, we'll try to address 22 that, sir.
23 COMMISSIONER ROGERS:
All right.
l 8
24 MR. TAYLOR:
Good afternoon.
With me at 25 the table are Dick Bangart, head of the Office of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
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5 1
State Programs and the members of the Compatibility 2
Working Group, which was' chaired by Shelley Schwartz.
3 The issues in this paper that you will 4
he'ar about today were discussed with'the agreement 5
states at the all agreement state meeting the end of 6
October in Tempe, Arizona. The approach was discussed l
7 with them.
What we would be seeking from the 8
Commission is publication of our proposals for public 9
comment and once you agree to that we would conduct a l
10 public meeting to discuss the policy statement with L
1 11 agreement states, industry, affected industry and the 12 public.
13 Shelley Schwartz did chair this group and 14 I'll now ask him to begin the formal presentation by 15 walking you through the major policy issues and 16 related background.
17 Shelley?
18 MR. SCHWARTZ:
Yes, thank you, Jim.
19 Good afternoon, Mr.' Chairman and members 20 of the Commission. As Jim says, we're here to discuss 21 with you the staff's proposal on a new policy for 22-agreement state adequacy and compatibility.
I'd like 23 to note that the regions and also agreement states are-24 monitoring this briefing right now.
25 (Slide)
Viewgraph 2, please.
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6 1
Here's an outline of the information I 2
will be providing you during this briefing.
This
.3 briefing tracks with the information provided in SECY-4 93-349 which recommends that the Commission approve a 5
draft policy statement and publish it in the Federal 6
Register for a 90 day comment period.
7 (Slide)
Viewgraph 3, please.
8 Past agreement state compatibility
.]
9 concerns were expressed in their task force report.
10 There was an organization of agreement - state task i
11 force report in 1991 and I think they can.best be 12 characterized by five questions that were conveyed to 13 us by Tom Hill when he was Chair of the Organization 14 of Agreement States.
Those questions are what is the I
15 meaning of compatibility, to what does compatibility 1
16 apply to regulation provisions, _ totality. of all 17 radiation program elements, administration of the 18 program, et cetera.
Third, how is it implemented at 19 NRC's discretion as a joint effort or is there-yet 20 some other approach which has not been determined?
21
- Fourth, what is -the legislative and historical 22 background of the issue and has that frame of l
23 reference been used in carrying ou' the NRC ' AEC j
24 agreement state program since 1962?
And fifth, most 25 importantly, how does the implementation of NEAL R. GROSS 1
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1-compatibility - relate to protection of.the.public 2
health and safety?
1 3
I think those issues and others were
'4 addressed in.two other Commission papers, SECY-91-039 l
5 and SECY-92-243 which was the basis for the 6
recommendation by the Commission to establish a
7 working group and directed the staff to then. develop 8
this compatibility policy.
9 As Jim mentioned, the working group'was-1 10 established and the individuals seated at this table, 11 Chip Cameron, Nick Costanzi, Fred Combs,
- myself, 12 Cardelia Maupin were on that working group and we also 13 had information from agreement-state individuals and f
14.
these were the offices of the Organization of.
15 Agreement States, Wayne Kerr of the State of Illinois,.
16 Bob Kulikowski of the City of New York and also Terry 17 Frazee from the State of Washington.
We also'had the 18 benefit of Mr. Gerald Parker's assistance and he was 19 a retired Assistant Commissioner of Health from the 20 State of Massachusetts.
I want to make sure Tom Hill 21 was also represented on the group.
22 We've had a number of public meetings and 4
23 workshops which culminated in a briefing. to the 24 Commission on August 30.
It was principally on the 25 issues paper that was developed by the group and also NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
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8 1
~ some' draft thoughts that 'we had-about' what a
1 2
compatibility policy _ought to be.
On October 20th, 3
1993 in'SECY-93-290, we provided the Commission our 4
initial thoughts on alternatives for an agreement 5
state policy which we then discussed ~ with the 6
agreement states at their October meeting-.in Tempe,.
7 Arizona.
8 (Slide)
Slide 4, please.
9 In order to understand compatibility,.We 10 reviewed Section 274, the history of how the agreement i
11 state program matured and its relationship with AEC 12 and NRC.
In reviewing these and the agreements, the j
13 following principles seem evident.. It recognizes the 14 interest of the states in regulating these materials, 15 it recognizes the need for cooperation between the 16 Commission and the states to promote an orderly'
)
17 regulatory pattern between the commission and the 18 states.
I classify that as trying to have-a national 19 coherent policy program for the. regulation of these 20 materials.
To provide for coordination ' of the 21 development of radiation standards and other policies 22 and, finally, that NRC must review the adequacy and.
i 23 compatibility periodically to carry out the mandate 24 under Section 274.
25 (Slide)
Viewgraph 5, please.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N W.
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'l-In these. discussions with the various 2
groups of stakeholders in this policy and in -this f
3 business, the states have said more than once that 4
th'ey would like flexibility with a minimum number of 5
requirements for compatibility and uniformity for 6
interstate commerce as well as for. radiation 7
standards, and that there be early and substantive 8
involvement of all agreement states in the development 9
of regulations and policies and procedures.
10 The regulated community' desires strict 11 adherence to uniform national standards while the 12 environmental community recognized that federal and 13 state requirements they believe are minimums and i
14 therefore there should be flexibility to adopt more 15 stringent requirements.
16 COMMISSIONER de PLANQUE:
Shelley, the 17 paper would suggest that that was just a single-18 environmental group.
Was that the case.or do you 19 recall?
20 MR. SCHWARTZ:
Well, if I remember, there 21 was Judith Johnsroot and Susan Hyatt and there'were a 22 few other people there who I can't say represented all 23 of those groups, but that was the sense that I think' 24 I received at that meeting.
I'd like to turn to 25 others, Chip or anybody else who was there.
NEAL R. GROSS COURT HEPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N W.
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10 1
MR. CAMERON: ' I think that's the viewpoint 2
that we've seen from the environmental community 3
generally is that the states should have the authority 4
to set stricter standards.
5 MR.
SCHWARTZ:
(Slide)
Viewgraph 6,
6 please.
7 Since we believe -- and "we" I'm talking 8
about the working group and the staff.
Since we 9
believe for clarity it was necessary as best we could 10 to differentiate between adequacy and compatibility, 11 that is to define what is necessary beyond public 12 health and
- safety, and a
need to provide 13 predictability and to have a coherent distinction that 14 would eliminate what is a perceived arbitrariness 15 today of the current compatibility determinations.
16 So, we would say that the adequacy component provides 17 for an acceptable level of protection for public 18 health and safety in ' an agreement state and the 19 compatibility component provides for the ovarall 20 national interest in radiation protection.
21 (Slide)
Viewgraph 7.
22 The adequacy component requires that the 23 level of protection of public health and safety be 24 equivalent to or greater than that provided by the 25 NRC.
It would not require that NRC requirements be NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE. N W.
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implemented essentially. verbatim
.or through. a
']
l 2
particular mechanism such as a regulation unless one 3
of the compatibility criteria, which I'll discuss a 4
liittle bit later --
5 CHAIRMAN SELIN:
You definitely should 6
just stop after particular mechanisms such as a y
7 regulation, period, because the rest has to do with 8
compatibility, not with --
9 MR. SCHWARTZ:
Understand.
10 CHAIRMAN SELIN:
You know, not with 11 adequacy.
Basically I think. you 've really the 12 group is really to be commended on making clear that 13 compatibility isn't just a higher standard than 14 adequacy, but it's a different dimension. Adequacy is 15 that which is required if there were only one state 16 and that state were running a program, what would we 17 require of that state for the citizens of that state f
18 to be protected? Then compatibility says, in addition 19 to that, because there are many states, the national 20 interest may require that certain things be all done 21 in the same way.
We may not even care'which way it's 22 done as long as they're all done in the same way.
So, 23 we can have common definitions, common reporting I
24 requirements, protection of interstate commerce, et 25 cetera.
You really have that-idea pat, but make sure NEAL R. GROSS i
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of your definitions.
Don't mix them back up again.
2 MR. SCHWARTZ:
I understand.
Thank you,.
3 The concept is only certain elements need 4
to be compatible -- maybe I'm going back, but I want' 5
to draw that line -- or essentially identical with 6
adequacy. being a
qualitative judgment on the 7
effectiveness of the program.
8 (Slide)
Viewgraph 8.
i 9
Adequate means an acceptable level.of 10 protection of the public health and safety from the 11 radiation hazards associated with the use of 12 byproduct, source and.special nuclear materials.
13 (Slide)
And Item 9 then, an adequate 14 agreement state program means.
an effectively 15 implemented regulatory program containing elements, 16 regulations, policies and procedures considered 17 necessary by the Commission to provide an acceptable 18 level of radiation protection for the public health 19 and safety from the radiation hazards associated with 20 the use of byproduct, source and special nuclear 21 materials, recognizing that these details will need to 22 be developed after the Commission approves this 23 concept.
24 COMMISSIONER de PLANQUE: Let me just stop 25 a minute and make sure I clearly understand something, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N W.
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, 13 1
taking~off from your comment.
Do you anticipate that 2
there will be any regulations that you would require 3
the states to have verbatim in order to find them 4
adequate?
5 MR. SCHWARTZ:
No, we do not.
6 COMMISSIONER de PLANQUE:
None?
7 MR. SCHWARTZ:
Right.
8 COMMISSIONER de PLANQUE:
Okay.
9 MR. SCHWARTZ:
That's the concept.
'f 10 (Slide)
Item 10.
11 Item 10 are example elements of an 12 adequate program. These example elements would derive 13 from three sources.
One is the Commission policy on 14 becoming agreement states, the new agreement state 15 policy.
The second the policy statement on review of
~
16 existing agreement states, and third we've got the 17 parallel effort going on on the integrated materials i
18 performance evaluation program.
So we've tried.to 19 comport what we have here with the new effort and I 20 understand that paper has been signed out by the EDO F
21 to you.
.22 I'm not sure I need to go through the 23 details of the individual -- it was dealt with-in the 24 Commission paper itself.
I wasn't-planning to go 25 through all the individuals, but I will point out that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N W.
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14-1 if the-inspection
- program, enforcement
- program, 2
staffing and-personal qualifications, licensing 3
program and investigation are elements that are 4
similar, maybe not titled the same way to'the five 5
basic elements which we call programmatic indicators 6
in the integrated material as common performance 7
indicators.
8 CHAIRMAN SELIN: I would like to come back 9
to just a fairly minor point.
10 MR. SCHWARTZ:
Yes, sir.
11 CHAIRMAN SELIN:
As you said before, Mr.
12
- Schwartz, adequate means adequate to protect ' the 13.
public health and safety.
The agreement states have 14 argued, for instance, it's none of our business if it 15 takes them three years to get a license out.
Tliat 16 might affect commerce in that state, it might be 17 unfair, but nobody's health and safety is affected if 18 they're too slow rather than fast enough.
Whereas on 19 timely renewal, if they're too late to get timely 20 renewal, that means that people are operating with an-21 obsolete license and one could be concerned that 22 health and safety is protected.
.l 23 So, a lot of things that it's a 24 plausible argument, but
- a. lot of things that one 25 thinks of as being part of an adequate program are cut NEAL R. GROSS COURT REPORTERS AND TRANSCRIDERS 1323 RHODE ISLAND AVENUE, N W.
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15 1
out by your definition, which is okay.
At least it's 2
not intrinsically -- but I think we should understand 3
that a
good program, a
program that meets the-4 intuitive concept of adequate will require much more P
5 than adequacy to meet health and safety.
And our 6
definition just is exactly what you said it is, that 7
a citizen in one of these states will be protected at 8
least as well as a citizen in an NRC-regul'ated state.
9 He or she may pay too much.for it, may suffer 10 financial dislocation, may be inconvenienced or what 11 have you in order to get that piece and the program 12 can still be adequate. Then comes the question of how 13 much of that weight do we want to put into compatible.
14 MR. SCHWARTZ:
That's the concept.
15 COMMISSIONER de PLANQUE:
- Shelley, I
16 thought the paper.had included administrative 17 procedures and budget in this kind of listing.
Did I 18 read something wrong?
1 19 MR. SCHWARTZ:
I think the paper may have
'l 20 covered that, but we have downplayed the importance of 21 the administrative nature of getting involved in that 22 as an area of major significance for public health and t
23 safety.
1 24 COMMISSIONER de PLANQUE:
I like the 25 conclusion.
I just wondered about the inconsistency.
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MR. SCHWARTZ:
It's an evolving --
2 COMMISSIONER de PLANQUE:
Okay.
3 3
MR. SCHWARTZ:
It's an evolving process, 4
Commissioner.
5 COMMISSIONER de PLANQUE:
So noted.
6 CHAIRMAN SELIN:
But then again, if the 7
state's performance from a health and safety point of 8
view is adequate, they will argue it's none of our 9
business what their resources-are.
10 COMMISSIONER de PLANQUE:
That's right.
11 MR. SCHWARTZ:
That's right.
12 CHAIRMAN SELIN:
And it's only if it's 1
13 not, in which case it's not a criterion, it's an 14 indicator, it's a performance indicator.
So, as 15 Commissioner de Planque
- implies, that's not 16 inconsistent at this point.
17 MR. BANGART:
Let me just add, the paper, 18 I think, talks about procedures in the context.of f
19 procedures to promulgate rules and that kind of thing.
20 We were concerned that if we had a bullet here that 21 talked about administrative procedures, it would be 22 viewed as more comprehensive.
We don't intend to go 23 into detail into minor day to day operational 2t procedures unless there's a problem that surfaces 25 reviewing a more direct adequacy indicator.
So, that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
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~1' was the reason for the slight discrepancy.
j 2
COMMISSIONER de PLANQUE:
On the-
~
1 3
~ laboratory support
- bullet, I
believe-the paper
)
4 indicated that the laboratory support had to be within
]
5 the state, not just available to the state.. Was that 6
what you intended?
7 MR. SCHWARTZ: Yes. We intended something 8
available to the state.
I don't think we are going to i
9 get involved, fIf the intention is -- if the read is 10 that it says in the state, I think in my view that's 11 the wrong impression.. It should be available to the 12 state so that they can evaluate what their findings-13 are and their readings are.
14 COMMISSIONER de PLANQUE:
So-essentially.
15 it could be some sort of contractor facility that's-16 available to them and that's acceptable?'
17 MR. SCHWARTZ:
That would be responsive, 18
.particularly in emergency situations.
That would be 19 responsive
.to their needs.
It's a pretty high 20
. threshold, I would say.
21 (Slide)
Eleven.
22 Moving on to compatibility, compatibility 23 component focuses on. state action or inaction that I
24 would have extra territorial impacts either on other
~
25 states or on the effectiveness of the national NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHO".,c tSLAND AVENUE, N W.
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18 1.
program.
It requires the essentially identical 2
adoption of certain elements of the NRC regulatory 3
program.
4 (Slide)
Viewgraph 12, please.
5 Compatibility therefore means the 6
consistency between NRC and agreement state regulatory 7
programs which is needed in order to establish a 8
national radiation protection program for the 9
regulation of byproduct, source and special nuclear 10 material which assures an orderly and effective-11 regulatory pattern in the administration of this 12 national program.
Compatibility shall be aimed at 13 ensuring that the flow of interstate commerce is'not 14 impeded, that effective communication of the radiation 15 protection field is maintained, that central t adiation i
16 protection concepts applicable to all licensees are i
17 maintained, and that information needed for the study -
18 of trends in radiation protection and other national 19 program needs are ascertained and made available.
I 20 CHAIRMAN SELIN: This suggests, it doesn't 21 say but it suggests that the burden of proof would be 22 on us to require something to be compatible to show 23 that one of these four objectives would be 24 significantly enhanced by requiring compatibility of 25 some objective.
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MR. SCHWARTZ:
Yes, that's correct.
2 (Slide)
Therefore, in that context, 3
viewgraph 13.
l 4
In that context, a compatible agreement 5
state program means a regulatory program containing I
6
- elements, regulatiors, policies and procedures 7
considered necessary by the Commission to effectively 8
implement the term " compatible" as previously defined; 9
COMMISSIONER ROGERS:
Just before you 10 leave that.
11 MR. SCHWARTZ:
Yes, sir.
y 12 COMMISSIONER - ROGERS :
I noticed in ~ the 13 paper it wasn't clear to me what elements were, 14 whether elements -- my impression'was that elements 15 included regulations and policies.
In the past'the
' i 16 term, I think, has been used to sort of imply.that i
i 17 elements included regulations and policies.
But the 18 paper seems to draw a distinction between elements,
{
19 regulations, policies and procedures and then, in 20
- fact, in somo-
- places, particularly.
in-the.
1 21 compatibility area, refers to only part of that list.
i 22 I want to come to that later on during -- when we come 23 to it.
But what is an element as distinct from a
-l 24 regulation of policy or a procedure?
'25 MR. SCHWARTZ:
Commissioner, I would view NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N W.
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an element I could say as a program.
I'll use an 2
example perhaps.of the seal source and device program 3
where that is an element of the regulatory program and 4
4 you'd need the regulations. Perhaps if the Commission 5
so deemed, we would also require certain requirements 6
for the individuals in the program so that the states 7
because interstate commerce can be-affected in the 8
sealed source and device area, that we require 9
essentially an identical program and that's an element 10 that encompasses the rules, regulations, standards and l
11 everything necessary to carry out the same degree 12 depth of program that the NRC does for that particular 13 class of licensees.
14 Maybe we've been inarticulate in 15 describing it, but I think that's the concept.
l 16 COMMISSIONER ROGERS: Well, it isn't clear i
17 in the document what an element is as distinct -- I 18 mean I think a regulation is clear, a policy and a 19 procedure probably are. clear, but an element is not 20 clear.
I think there needs to be some explanation of 21 that.
22 COMMISSIONER'REMICK:
Shelley, adding to 23
- that, on your slide 10 you have a regulation as q
24 example of one type of element.
So, there you're 25 using it as an example of an element.
Here you're NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
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l' using 'it as something 2
guess.
.Tust some confusion.
3 CHAIRMAN SELIN:
.Is it material, all of 4
whose atoms had the same number of protons?
5 MR. TAYLOR:
No, that's not what we had in 6
mind.
7 Go ahead, Shelley.
8 MR. SCHWARTZ:
Thank.you.
T 9
(Slide)
Slide 14, please.
10 To build national uniformity
.on 11 requirements with extra territorial impacts that were-12 necessary for the national program, existing and new 13 requirements would be subject to the following 14 compatibility tests to determine if they should be 15 adopted essentially verbatim' by the agreement states, j
16 whether adoption is necessary to avoid a significant l
4 17 burden on interstate commerce, and I use the sealed 18 source and device example there.
To ensure clear
)
19 communication on. fundamental radiation protection l
l 20 terminology, and I think in the paper we've discussed 21 the definitions of byproduct material and also total 22 effective dose equivalent.
To-ensure clear 1
23 communication and common understanding as to-certain
)
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22 1
dose limits for workers and members of the public, and 1
2 finally to assist the NRC in ovaluating the-1 3
effectiveness of the overall national program for l
'I 4
' radiation protection.
I view this again in the 5
integrated materials performance' evaluation program 6
spaces.
These will be kind of like the operational:
7 indicators, I believe, that would fit into the overall l
8 national picture of what we're trying to ascertain' as 9
to a national program.
t 10 COMMISSIONER REMICK:
Shelley, I would 11 argue that your policy statement makes the argument i
12 for an additional bullet there and that would be i
13 basically to ensure that a practice is not discouraged 14 without adequate environmental or safety basis.
You 15 don't have that as a bullet in the policy statement, 16 but you make that point very strongly.
It seems to me 17 that that is certainly a legitimate criteria.
l 1
18 I-IR.
SCHWARTZ:
Commissioner Remick, I
19 agree that it's a legitimate' criteria, and I think
[
20 we've discussed that as being the test for whether it i
21 can be more stringent.
[
22 COMMISSIONER REMICK:
Well, your a:~.ual l
23 words, you used bar or preclude.
24 MR. SCHWARTZ:
That's correct.
25 COMMISSIONER REMICK:
I think those are NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N W.
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23 I
too strong. 'That's.too high a threshold.
People can 2
do things to discourage the use of a practice which 3
otherwise might be deemed adequately safe and 4
environmentally acceptable, but not necessarily barred ~
5 or precluded.
In my mind, those are too strong, too 6
high a threshold.
That's why I very carefully used 7
the word " discourage."
I think we have to be careful 8
that people don't use the flexibility to discourage 9
practices which otherwise would be acceptable.
You 10 make the case for it in the argument, but you don't 11 have it as a bullet.
12 MR. SCHWARTZ:
Right.
13 COMMISSIONER REMICK:
And I'm' afraid it.
14 might be lost.
I 15 MR. SCHWARTZ:
(Slide)
In the criteria.
16 We do deal with it in the next viewgraph, viewgraph 17 15, where we deal with it in what is the balance of 18 uniformity and flexibility in this policy that we're i
19 proposing.
That is if none of the criteria for i
20 identical requirements for compatibility is met, the 21 state would have the flexibility to design its i
22 programs to meet local needs and conditions as long as l
23 the program is adequate, again with adequacy being the 24 program defined by the Commission as having the 25 regulations, policies and programmatic elements and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N W (202) 234 4433 WASHINGTON, D C 20005
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24 1
procedures that are necessary for adequacy..
2 To meet local needs and conditions, states i
3 for particular classes of licensees adopt more 4
stiringent radiation protection standards provided that i
5 the basic dose standards for all licensees are 6
essentially identical to NRC's, that the dose does not 7
bar a practice or preclude a practice without an 8
adequate safety or environmental basis or bar a 9
practice needed in the national interest.
We would i
10 request the states to submit proposed more stringent 11 requirements to the NRC for Commission review and j
12 approval.
13 CHAIRMAli SELIN: Let's to back to that bar 14 the practice. Let's say our regulations allow shallow 15 burial or engineered facility burials.
Let's say 16 states don't like shallow burial.
Why can't they bar 17 shallow -- unfortunately that's a low-level waste in 18 the state authority.
But that kind of an issue.
I 19 mean why couldn't the states bar that practice 20 according to the four criteria that you have on the 21 previous page?
22 MR. SCHWARTZ:
I think what we're saying i
23 is they
- could, but they had to provide the 24 demonstration that there was an adequate basis for 25 that.
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25 1
CHAIRMAN' SELIN:
I happen ~ to think ' thati 2
that might be 'a good practice, but. it's not consistent 3
with your_ criteria.
According to your criteria, all 4
they would have to do was show that they don't cite a 5
health and safety issue.
I mean they don't claim that -
6 25 millirem-is good enough for-the other states, but 7
there's a health and safety difference or that there's 8
an impact in interstate commerce or what have you.
9 COMMISSIONER de PLANQUE: But in this case 10 is the practice shallow land burial or is the practice 11 waste disposal?
12 MR. SCHWARTZ:
Right.
13 CHAIRMAN SELIN:-
- Well, that's not a 14 practice, that's a whole function.
15 MR. SCHWARTZ:
Right.
16 CHAIRMAN SELIN:
Is that what you're 17 talking about?
t 18 MR. SCHWARTZ:
Yes.
I think what we're 19 really talking about is we do not want the states to 20 make -- we don't think it's right for the states to 21 make more stringent regulations such that a practice is barred from that state so that impact will then be 22 23 shifted to someone else.
24 CHAIRMAN SELIN:
I see.
That's not what 25 practice means to me.
I misunderstood what you're NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
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1.
saying.
2 MR.
SCHWARTZ:
. That 's the point we're.
f 3
'trying to make here.
4 CHAIRMAN SELIN:
Well, you'd better be'-
I 5
careful because if there were three ways of.doing 6
something and the state for some reason decides that.
7 two of them were acceptable but the third' has cultural 8
problems in their state and they just don't want you 9
to do that, that's a practice. that you would be 10 barring and I don't think you mean that.
11 MR. SCHWARTZ:
The point is well.taken.
4 12 Thank you.
4 13 CHAIRMAN SELIN:
But following.
14 Commissioner de Planque's point, we wouldn't. sanction 15 something that basically says we won't solve our own 16 problems.
You'll need to get some other state to 17 solve our problems.
18 COMMISSIONER de PLANQUE: Shelley, can you r
19 give me an example of what local needs and conditions f
20 would be that are justifiable on a
safety and 21 environmental basis?
Any examples?
l 22 MR. SCHWARTZ:
We've discussed that and I
.,e 23 guess I'd give the example of perhaps the state is l
24 looking at an incinerator perhaps in a particular i
25
- area, and looking at the emissions. from the-NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N W.
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incinerator, taking all other things in that 2
particular. local area, whether it be NARM and other 3
practices going on in that area.
They might for that 4
particular facility decide that they did not want to i
F 5
have the same dose to the public, dose to the workers t
6 that other facilities have. And therefore, looking at i
7 the aggregate, they would decide to reduce it in that 8
particular area.
9 COMMISSIONER de PLANQUE:
But in that 10 state
- then, would that apply to that class of i
11 licensee?
In other words, all incinerators?
12 MR. SCHWARTZ:
Yes.
That's the way it's 13 currently projected.
14 COMMISSIONER de PLANQUE:
But wouldn't 15 that then preclude a practice?
16 MR. SCHWARTZ:
Well, not necessarily.
17 COMMISSIONER de PLANQUE:
Namely 18 incineration as a method?
19 MR. SCHWARTZ:
Not necessarily.
If the 20 facility continues to operate, but not make it so low i
21 that it drives that facility or that practice out of 22 the state, but at the point that they make the balance 23 because of local conditions in that particular 24 geographical area.
25 CHAIRMAN SELIN:
Can I say something?
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'28 1
COMMISSIONER de PLANQUE:
Yes, go. ahead.
2 CHAIRMAN SELIN:
This. is an extremely 3
.important point' and you've answered the same questions 4
two different ways under two different questions from 5
the Commission.
One time you haven't said that the 1
6 practice has to be justified on health and safety, you 7
just had to say it's not inconsistent with our NRC 8
standards, interfere with interstate commerce, et 9
cetera.
And another time-you said it has to have_a 10 health and safety justification.
In one
- case, 11 practice is getting rid of low-level waste and in the 12 second case it's incinerating it.
13 Without saying how I believe, looking at 14 your statement,.it seems to me that if a state said, 15 "We just don't like incineration.
We will permit you L
16 to bury but not to incinerate.
And furthermore our-17 citizens so much dislike incineration that we're 18 willing to either pay or impose on providers in our 19 state a higher cost for burial. We still allow-you to l
20 get rid of the waste.
We don't claim that it's a 21 health and safety hazard, but we just won't permit you 22 to incinerate in our state."
So, there's an economic 23 disadvantage, but maybe they say politically that's 24 what it takes to get a site approved in our state.
25 According to
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39 1
. permissible.
2 When Commissioner de Planque asked you 3'
basically that question you ' said -it would not be 4
permissible.
I think it's very important that we 5
understand what would be permissible' and what 6
wouldn't. When you get into these questions where the 7
NRC -- let me put it in a more strong point.
The NRC 8
does not agree that there's a health and safety reason 9
for a particular practice.
We would accept any of 10 several practices.
The state chooses for its own 11 reasons, but not based on a reading of a health and 12 safety thing, to permit some versions of the practice 13 and either prohibit or make more costly other versions 14 of the' practice.
Is that permissible under. this 15 compatibility policy or not?
16 I think incinerators are a fine example of 17 that.
It would be one thing to say, "We'll allow-18 incinerators except not in downtown heavily populated 19 areas.
That's an air quality issue."
Another one 20 says, "We just don't like incinerators for radioactive 21 materials. We just won't permit them.
You'll have to do something else.
But we won't set the standard so 22 23 high that as a practical matter you can't disposal of 9
24 waste in our state."
25 We need to understand whether these NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W (202) 234 4433 WASHINGTON, D.C. 20005 (202) 234 4433.
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30 1
standards,as the group intends them would permit in 2
this case the effective barring or taxing of.
3
. incineration or the setting of an air quality standard 4
that's higher than'.the national-standard which 5
increases the cost relative to some other. procedure.
i 6
COMMISSIONER de PLANQUE: Which then makes 7
it an economic or political determination,- not a 8
health and safety one.
9 CHAIRMAN SELIN:
But, you know, it would 10 be a disadvantage.
Now, if they raise it to the point 11 where it's just so economically impossible to dispose 12 of waste, not to incinerate it but dispose of waste, 13 then we would say that's just a ruse for shifting your -
14 waste onto your neighbors.
15 MR. SCHWARTZ:
Somewhere else.
16 CHAIRMAN SELIN: But if they're willing to 17 do something but they're going to run the cost of 18 doing it at a higher point, that's the example that I 19 think needs to be --
20 MR. SCHWARTZ:
Understand.
I did shift 21 over to health and safety and I should not have 22 because that's not what we're proposing.
23 COMMISSIONER de PLANQUE:
It's not quite 24 clear then what you're proposing.
l 25 MR.
SCHWARTZ:
I agree with
- you, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS
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31 1
Commissioner.
2
.MR.
CAMERON:
The example that I think 3
Shelley was trying to convey with the incinerator was l
not the prohibiting of the practice of incineration, 4
5 but rather then point that you made, Doctor Selin, 6
about the particular background air quality.in. a 7
particular area causing you to have a more stringent 8
release limit for a particular types i
9 CHAIRMAN SELIN:
That's not the case I'm 10 concerned about.
I mean there you're going to argue 11 that there are other standards in addition to i
12 radiation standards that are environmental.
I'm 13 trying to get back to the more general point where the 14 government or state X just decides really that he 15 believes he can get burial evolved, but that the 16 citizens are so against incineration that in order to 17 keep the program he's going to make it impossible to 18 do incineration but not to do burial.
He's got very l
19 good reasons.
They're not health and safety reasons 20 in a narrow sense.
They may be health and safety in
]
21 a broader sense and saying that, "The health and 1
22 safety of my citizens would be better affected if I 23 find something that's politically acceptable than if 24 I don't," but that's a very tough argument to make.
25 Is such a practice acceptable under your NEAL R. GROSS COUNT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
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32 1
compatibility-standards or not? ' ~That's 'something you -
2 really have ' to think about.
To me it's clearly l
3 acceptable the way you've written it.
4 MR. SCHWARTZ:
That's what's intended.
S CHAIRMAN SELIN:
Sorry?
6 MR. TAYLOR: Wouldn't that be essentially 7
barring your practice?
8 CHAIRMAN SELIN:
Well, I mean, that's why 9
I pressed for'what you mean by practice.
If practice t
10 means to get rid of low-level. waste, it doesn't bar s
11 it.
If it means that among the ways that are 12 acceptable to the NRC of getting rid of low-level 13 waste, the state will permit some and prohibit some, 14 but not have such a drastic approach that is a de 15 facto basis.
-You can't get rid of the-waste in the
[
16 state.
That's the essence of compatibility.
j 17 MR. SCHWARTZ:
That's the essence of what 18 we're trying to drive.
i 19 COMMISSIONER de PLANQUE:
But then you 20 wind up using a radiation protection standard or 21 emission standards to force an economic or political-22 decision and then you have to ask the question is that 23 in keeping with the national good as you've defined
[
24 it.
You're using one function to' force another.
1 25 MR. TAYLOR:
That's what.we're trying to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS i
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avoid.
2 COMMISSIONER de PLANQUE:
Right.
3 MR. SCHWARTZ:
Right.
4 COMMISSIONER de PLANQUE:
So, I think the 5
key here is whether or not you say in your policy 6
there's an adequate safety or environmental issue or 7
not.
8 CHAIRMAN SELIN:
Let me take another 9
example. Again, this is low-level waste and I realize 10 that the statutory base for the states for low-level I
11 waste is different.
But if a state decides that there i
12 are some sites, but the local farmers won't lot us
-l 13 build a site unless we set a one millirem rule, not a
.)
14 standard.
We never claim that health and safety 15 requires one millirem, but we say we will require that 16 emissions be held below one millirem and that's what 17 the governor feels is the price for the local people 18 accepting the site.
Does that or doesn't that not 19 violate your compatibility standard?
20 COMMISSIONER de PLANQUE: We're now at the 21 heart of the issue.
You knew we'd get there.
22 CHAIRMAN SELIN:
If you said a hundredth 23 of a millirem, then he clearly doesn't want to build 24 it and he's just using it.
But if it's something 25 that's not so unreasonable that you could just off the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N W.
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m -
2-.
an La a
34 1
. top say, well, that's clearly just a stratagem to 2
avoid building the site in the first place, does your j
3 view of.this compatibility policy ~-- now, I apologize 4-that I could only come up with a low-level waste 5
. standard.
I wish I could have thought of one in site j
6 decommissioning or something.
i 7
MR. CAMERON:
I think that that example 8
would be squarely within the policy.
9 MR. SCHWARTZ:
That's correct, that would 10 be within the policy.
l 11 CHAIRMAN SELIN:
Let me ask a different i
12 example.
13 MR. TAYLOR: And they come to us to review 4
14 it.
15 CHAIRMAN SELIN: Okay. Let's say that we, t
16 for the sake of argument, chose a 25 millirem or 10 17 millirem standard for unconditional release of a 18 decontaminated site and a state decided that whatever i
e 19 reasons for peace with the local citizens, that they i
20 would require people to come down to a five millirem i
l 21 or a one millirem basis before they would agree that j
22 a site could be released.
But it's not such - an 23 unreasonable level.
You could get the level and you 24 could measure it, but it would cost people more to do 1
25 it.
Do you consider that within the state's authority NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE. N.W.
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35 1
under your compatibility statement?
I 2
MS.
MAUPIN:
If I could answer. that 3
question.
I would say yes, more so under the adequacy 4
issue because under adequacy we would give the' states 5
the opportunity to set a more stringent standard.
6 Now, whereas under the compatibility realm, -if it was s
7 scmething that was in the national interest, is this 8
going to have extra territorial influences, is it 9
going to break down our national communications in 10 terms of public health and safety or what we perceived i
11 as an acceptable level? Then we would clearly have to 12 do an extensive review and approve whether or not that 13 leve3 is acceptable.
14 COMMISSIONER REMICK:
Let me probably 15 contribute to confusion.
I don't think the 16 incinerator is the best example' because our 17 regulations don't -- we're not requiring people to 18 have incinerators or not.
All our regulations do, if 19 they build one, there are regulations that address the 20 releases.
So, if a. state wanted to bar incinerators 21 in principle, I don't think our regulations even come 22 into effect.
Where they come into effect, if a 23 state -- if in the state they're going to build an 24 incinerator, there are certain radiation standards.
25 I
have great difficulty when I
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36 1-government' or ~ state ' government setting standards 2
inconsistent with the national standards.
I thought 3
the NRC was established'for~a purpose, and that is to 4
establish standards nationally.
I have very, ' very 5
strong concerns about permitting anybody setting other 6
radiation emission or dose standards.
I'think it's 7
opening Pandora's box and you can't ' distinguish 8
between what is necessary for a local populace,-what l
9 is a local populace to accept something versus efforts 10 to discourage the practice.
That's why I use those 11 words " discourage." It isn't only bar it, which in my' 12 mind is more of a legal positive term that you just 13 can't do it, but you can sure do a lot of things to 14 discourage. practices that -might be in the best.-
15 interest of the total populace, even the total local 16 populace, if we had a way of determining it.
17 But I think we're opening ourselves up to 18 voce minority groups of the public through political 19 means placing limits which are inconsistent with what 20 I thought was the responsibility of this Agency to do
]
21 and that is to set standards.
)
i 22 MR.
TAYLOR:
Commissioner, may I
.1 23 interject?
i 24 COMMISSIONER REMICK:
Yes, please.
1 25 MR. TAYLOR: The Commission is touching on l
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something that gave rise to, great worrying arguments 2
in my office and outside my' office.
3 COMMISSIONER REMICK:
Good.
4 MR. TAYLOR:
Because -.yes, right.
- Now, 5
we are concerned about what' you have
- said, 6
Commissioner.
Yet the state input to this whole-7 discussion was that they wanted the ability to have 8
the door slightly ajar.
I'm using some analogy to 9
this.
It is for those very reasons and we set down 10 the conditions not to bar the basic practice of 11 whatever you're trying to do, that the basic standards 12 should be essentially identical to the NRC, and that 13 where they wanted for whatever local conditions, and 14 we tried to imagine all these and we could think up 15 hypothetical cases to propose more-stringent 16 requirements, that that should be t.ubmitted.
17 What we see here will be the policy 18 developed by specific cases where the states come in 19 and make a case of some type and we look at that and 20 bring it to the Commission and advise them.
I don't 21 expect these to come in at the rate of one a month or 22 anything like that.
23 COMMISSIONER de PLANQUE:
But you're 24 saying they have to meet a safety and environmental 25 criteria.
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-1 MR. TAYLOR:
Right, but that they could t
2 have a more stringent base for various reasons.
3 COMMISSIONER de PLANQUE:
Health and-4 safety?
5 MR. TAYLOR:
No.
No.
6 MR. BANGART:
Not for compatibility. Not 7
necessarily.
8 MR. TAYLOR:
This is for compatibility t
9 purposes.
This is not --
10 COMMISSIONER REMICK: If somebody comes in
-11 and says, "We need it for local' acceptance,"_ how do we 12 judge that?
Who is the local populace that's being 13 referred to?
14 MR. TAYLOR:
We'd hope that there was a 15 more substantive basis than just a --
I 16 COMMISSIONER REMICK:
I appreciate the i
17 fact coming into the NRC.
.But with respect to 18 everybody within the Agency, we are not completely F
19 sensitive what might affect many of our licensees, 20 particularly in the materials area.
They're so 21 diffuse and so many and I think we have a lot of 22 current examples where we don't have the sensitivity 23 to that group in what our regulations do, nor what 24 local regulations might do to licensees.
When I say 25 our licensees, I mean agreement states as well as NRC.
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MR. TAYLOR:
You mean local standards?
2 COMMISSIONER REMICK:
Yes, that's right.
3 And our judging the impact, unless we go through an 4
adequate public comment period for those people to t
5 address their concerns.
But if we just take a request i
6 coming in and we're to judge, in all sincerity I say 7
that we don't have the sensitivity many times to r
8 understand the impact on the licensees who would be 9
affected because there are so many and they're so l
10 diffuse.
11 CHAIRMAN SELIN:
With all due respect, 12 this is clearly an issue on which the Commission is 13 not exactly 100 percent in agreement.
14 COMMISSIONER de PIANQUE:
In sync.
15 CHAIRMAN SELIN:
There are two quite 16 conflicting approaches.
One is we feel in general the i
17 reason it was in NRC_is not just to have a national 18 inspection
- program, but to have some national 19 practices.
20 MR. TAYLOR:
We agree.
21 CHAIRMAN SELIN:
On the other hand, you s
22 read the plain language of the law.-
It says that --
P 23 I
mean the compatibility is almost like an 24 afterthought to give us some options so that we have-25 something a little more than adequacy.
If you didn't NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE. N W.
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60
-1 have the compatibility thrown:into the law, we would-2 have absolutely-none of the authority.
that 3
Commissioner Remick is discussing.
That doesn't say
.4 equal to, it says adequate, protection effectively'
?
5 greater than or equal to that which we require.
Then 6
it gives us the crack in the door to say, but we can 5
7 also require compatibility in addition to adequacy, 8
although the implication is we have to define pretty 9
carefully what 't means.
10 So, reading the law there and reading the 11 sense of what we think the NRC was set-up, one could 12 see some inconsistencies between the two.
So, you 13 guys have to really figure out what you think it means l
14 and clearly define what you mean and don't try to read P
15 the Commission on how we're going to come out on 16 something like this because it's'a difficult set of 17 issues.
I'm one Commissioner has some inconsistencies t
18 even in my own mind, let alone from Commissioner to I
19 Commissioner on this point.
20 MR. TAYLOR:
It's much easier if we said 21 under no cases would we ever agree to a more stringent 22 criteria, but we felt and the state input -- was it j
23 the state input?
24 COMMISSIONER de PLANQUE:
I think this is 25 why we're --
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41.
1 MR.
TAYLOR:
That wa s -
not.
really 2
cooperative in the sense that don't even submit 3
anything to us, don't even ask.
l 4
COMMISSIONER de PLANQUE:
I think this is 5
why it's incredibly important for us to have examples' 6
of what could logically fall into this bin.
I think 7
at least Commissioner Remick and I are having a very l
8 difficult time finding even a valid example that you 9
could rationally justify would fall into this bin.
l 10 The other comment I would make is that t
11 when you look at the criteria for identical f
12 requirements on page 14, two of them have to do with 13 communication, on radiation protection concepts and 14 terminology.
If you consider communication as'to what.
'5 is safe, you're into a criterion which I think applies 16 in this case.
But as we said, we're not all'on the 17 same --
18 CHAIRMAN SELIN:
From my point, I see 19 nothing in the law that says that the states have to 20 convince us if they want to make something more rigid 21 than what we require that they have to get our i
22 permission or that they have to do this on a health l
23 and safety basis.- I do see that there can only be one 24 set of standards if standards mean that health and 25 safety requires X.
But there are other bases other NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS l
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42-i 1
than health and safety to require something more 2
rigorous than X.
So, I guess I'm not completely'in'
.t 3
accord with some of my_ colleagues on.this issue.
A 4
lot has to do with basis for which this is put in, f
5 COMMISSIONER REMICK:
A question for t
6 understanding.
Will there still be something called 1
7 division 1 and division 2,
that type of. thing? 'In 8
other words, would there be things that we would 9
identify that must be compatible, strictly compatible 10 or not?
11 MR. SCHWARTZ:
They wouldn't use the same l
12 framework because there would be regulations that'
[
i 13 would be necessary for adequacy and programs that are i
14 necessary for adequacy.
The states would have~ the 15 flexibility to put those programs and regulations in 16 place. They did not have to be essentially identical, i
17 but they have to have equivalent protection.
'In the 18 compatibility area, we would have what you would say 19 is a division 1 --
T 20 COMMISSIONER REMICK:
Right.
which has to be 21 MR.
SCHWARTZ:
22 essentially identical along with some other i
23 programmatic issues.
1 24 COMMISSIONER REMICK:
Okay.
But once i
25 we've defined sometihing called division 1, which we're
.)
?
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43 1
saying that they have to be identical, isn't it 2
inconsistent to talk about then exceptions being made?
3 In other words, I'm assuming that the type of r
4 things
-- if they're in division 2, they don't have
-l 5
to be identical.
So, we must be talking just about 6
division 1,
radiation protection standards, 7
definitions, those type of things, some of those, 8
maybe not all of them, that are currently in division 9
1.
I can't think of the examples in what is 10 ultimately called a division 1 that there would be 11 exceptions.
12 CHAIRMAN SELIN: I think we all agree that
~i i
13 division 1 would be identical.
You know, there's a l
14 problem with language because division 1, division 2 i
15 should be called something like comparability, not-16 compatibility.
We're using compatibility to mean two 17 quite different things.
But putting that apart, I 18 think we all agree that compatibility' requires 19 identical language.
For those things that-we require j
20 compatibility, we require essentially identical i
21 language.
The thing that we're discussing is the 22 criteria under which we require division 1,
so to 9
23 speak.
24 MR. SCHWARTZ:
That's correct.
25 CHAIRMAN SELIN:
That language.
I i
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44 1
probably would feel-that unless there 's - a clear 2
argument on one of those four points on page 14, that 3
we don't have the basis for requiring something to be 4
division 1.
Some of my colleagues might feel, no, if 5
there's a legitimate practice - that's precluded by 6
those rules or there has to be further a health and 7
safety argument for somebody to require something more 8
stringent than we do, those would be different 9
criteria for where do we require strict compatibility.
10 I think we would all say.that if it's an item of-i 11 strict compatibility, then it is.
There are no i
12 exceptions to that.
But what are the criteria for 13 deciding something is such an item?
14 MR. SCHWARTZ:
But, Mr. Chairman, if I 15 just may, I want to expand.
I don't.want to focus 16 just on division 1 because division 1 were only 17 regulations.
What we're providing here --
18 CHAIRMAN SELIN:
You're talking about i
19 programs.
20 MR. SCHWARTZ: Right, through our programs 21 with the same division 1 definition.
22 CHAIRMAN SELIN:
Sure.
23 MR. BANGART:
It should be clear though 24 that even under this policy as we've drafted it up 25 here, a basic radiation protection standard like Part NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
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- m
45.
1 20 that applies to any and all licensees would not be f
2 a candidate to have any part of that more strict.
3 CHAIRMAN SELIN:
I would argue that if a 4
state doesn't adopt Part 20, they don't have an 5
adequate program, let alone compatible 6
MR. SCHWARTZ:
That's true.
7 COMMISSIONER REMICK:
But we were talking 8
earlier about one millirem being acceptable.
That's 9
not in Part 20.
That's inconsistent with Part 20 in 10 my mind, radiation protection standard. You said that 11 would be acceptable.
4 12 MR. SCHWARTZ:
61.41 and 43.
f 13 COMMISSIONER REMICK:
Yes, right.
14 COMMISSIONER de PLANQUE: They revert back 15 to 20.
16 MR. BANGART:
42 reverts back to 20.
i 17 COMMISSIONER REMICK:
So, what you said, 18
- Dick, I agree with, but the example we were just 19 discussing earlier was inconsistent with that, in my 20 mind.
21 COMMISSIONER de PLANQUE:
Right.
22 COMMISSIONER ROGERS:
Well, that really 23 brings back to my question which I asked at the very
~
i 24 beginning because I anticipated that we would be into 25 examples that came from low-level waste because that's NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE. N W.
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I
46
.1-really where the problems seem to be coming from.
So 2
far, I haven't heard anybody say, "This applies to l
3 low-level waste or doesn't apply to low-level waste 4.
because."
In my reading of it, I read it rather 5
carefully with a point of view of whether it could I
6 apply to low-level waste. Frankly, with the exception -
7 of the part that we've just been talking about here, j
8 I thought it probably could, but 'I haven't heard 9
anybody say that.
10 So, I'd like to hear what your views are 11 on the extent to which this policy statement, in fact, 12 is intended to apply to low-level waste or could apply 13 to low-level waste.
So, I'd like to hear that.
I'd 14 also like to go back to slide 14 sometime because I'm 15 quite concerned about what the thinking. is with 16 respect to this question of identical requirements.
17 But can you give me a statement on to what extent what 18 we have in this policy statement can be taken right-19 over for low-level waste programs?
20 MR. SCHWARTZ:
Commissioner Rogers, thank 21 you very much.
In the Commission paper we had the 22 final line said the staff believes that the draft 23 policy should also be applicable to the area of low-24 level waste disposal and also believes that the draft 25 policy is consistent with the Commission's previous NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE. N W.
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47-actions regarding compatibility in the area of low-
'1 2
level waste.
So, we believe yes, it is.
3 COMMISSIONER ROGERS:
Okay.
So, I think 4
4 it's fair game then these examples-that are coming up 5
because they are low-level waste and - that's where 6
we've really run into the problem in the past.
So, it 7.
is your intention to use this for low-level waste and 8
so we should be thinking about it from that point of 9
view as well.
I 10 MR. SCHWARTZ:
And I guess the working 11 group and the staff discussed it.
It just didn't' 12 seem -- the carving out just didn't seem right when.
13 you looked at the total compatibility policy.
14 COMMISSIONER ROGERS:
Well, I personally 15 don't have a problem with that.
I'd like to see one 16 policy that covers programs and not two policies.
17 MR. SCHWARTZ:
That's -correct.
That's 18 correct.
19 COMMISSIONER ROGERS:
One for low-level 20 waste and one for something else.
21 CHAIRMAN SELIN:
I do have to say that if 22 the Commission voted to set a very tough standard for 23 when a statement could require a more rigorous program 24 than we require, then I would have a lot of problems-25 applying that to low-level waste program because the NEAL R. GROSS COURT REPORTERS AND TRANSCR10ERS 1323 RHODE ISLAND AVENUE, N.W.
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48 1
justification --~I mean the statutory-basis for low-2
' level waste is different and puts-more authority in 3
the states.
So, I agree with the going in' position.
4 It would be nice to have a position that covered all 5
of them, but it depends on how.we come out.-
If we 6
come out with a more uniform approach rather than'a 7
more flexible approach, then we would have the further 8
question of can we apply that same approach to low-9 level waste given the difference in statutory basis.-
10 But I guess I am bothered by Mr. Bangart's 11 statement that says you have to accept -- you know, 12 take Part 20 or Part 35 intact.
I still don't see why 23 a state couldn't set the higher level as long as they 14 don't argue that health and safety requires it, that 15 some radiation safety requires it.
You take all the 16 same language, but say in our state we expect more 17 rigorous performance than the federal.-
18 MR. TAYLOR:
Yes.
If you did that in the 19 ALARA sense, that's completely consistent with the 20 whole field of radiation protection.
In an operation 21 of any facility where they can achieve much lower dose 22 than just by reasonable protection, that's the whole 23 concept behind ALARA, that they don't reach the 24, limits.
So, the public standing next to the wall, you 1
l 25 could -- if they stood there all the time, you could NEAL R. GROSS COURT REPORTERS AND TRANSCR!BERS 1323 RHODE ISLAND AVENUE. N W.
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49 1
'be 50 MR rather than 100.-
If it's just as easy to do 2
that, that's sort of an ALARA' approach.
3 So, I agree with you, Mr. Chairman, that 4
the standards themselves are limits normally and --
5 Do you agree, Dick?
6 MR. BANGART:
Yes.
My comment was -not 7
meant to extend to like Part 35.
That would be, at 8
least in the context of this' paper, a particular.
9 practice.
That would be medical licensees.
So, in 10 this case, if that were a local condition, there were 11 local conditions and it applied only to one class, 12 then this policy would allow it.
But still, a general 13 radiation protection standard-. in Part 20 that was 14 meant to apply to any and all uses,100 millirem limit 15 for members of the public, that would be something in 16 accordance with this draft that we would not allow a s
17 more strict requirement to be put in place.
18 COMMISSIONER REMICK:
I would hope not.
19 MR. TAYLOR:
In practice they could come 20 in much lower by ALARA.
21 MR. BANGART:
By ALARA they could.
22 COMMISSIONER REMICK:
As long as those 23 ALARA were goals and not --
24 MR. TAYLOR:
Right.
25 COMMISSIONER REMICK:
-- programs and not NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
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't 50 1
requirements.
2 COMMISSIONER ROGERS:
I think some of us 3
really felt that. the word " standard" really had to 4
mean something.
It really-has to mean something.
5 It's not just a requirement, it's a standard.
'A i
6 standard is something that hopefully could be 7
international and certainly national.
8 But I'd like to come back to this criteria 9
for identical requirements question.
It seems to me 10 that I had a great deal of trouble understanding what 11 that part of the policy statement was really talking 12 about in the sense that there's a policy statement 13 here,.but it seems to me that the section that deals I
14 with this criteria for identical requirements or l
f 15 whatever it's called ' in the paper itself, in the 16 compatibility area, really is a statement of work-ti 17 be done.
This hasn't been done yet.
What you'.t 18 going to do, as far as I understand it, is look at our N
19 regulations, policies -and procedures ours, not 20 somebody else's, ours -- from the standpoint of these 21 criteria and see to what extent any of them are 22 necessary to avoid these untoward consequences here.
23 And then once we've done that, we'll have a list of l
24 things and that list of things then will have to be 25 identically incorporated by every state into its NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
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51 L
1 regulations.
j 2
MR.
SCHWARTZ:
That's
- correct, 3
Commissioner.
That's correct.
[
4 COMMISSIONER. ROGERS:
So, we're. not 5
talking about some criteria that we will use'to look-
[
t 6
at somebody else's regulations right here.
We're-I 7
talking about criteria that we're going to apply to 8
look at our own regulations.
9 MR. SCHWARTZ:
Our own regulations and 10 programs.
11 COMMISSIONER ROGERS:
Programs, policies 12 and whatever.
There's four elements there.
i 13 MR. SCHWARTZ:
Correct.
i 14 COMMISSIONER ROGERS:
I think elements.
}
15 MR. SCHWARTZ:
Correct, elements.
. 1 16 COMMISSIONER : ROGERS:
So, all those i
17 things, whatever they are --
]
18 MR. SCHWARTZ:
Correct.
i 19 COMMISSIONER ROGERS:
-- are going to be
'l 20 held up to these criteria --
t 21 MR. SCHWARTZ:
Correct.
22 COMMISSIONER ROGERS:
-- and to see what 23 sticks, what has to, what's necessary to avoid these i
i 24 unfortunate consequences.
That is work that has.yet-j 25 to be done.
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- aga,
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- - ~,. -
a 52 1
MR.
SCHWARTZ:
That's
- correct, 2
Commissioner.
3 COMMISSIONER ROGERS:
So that nobody 4
really knows how that's going to come out.
I mean S
these are the criteria that are going to be applied, 6
but right now we don't know what's going to fall out u
7 of that screen once you dump everything into it and 8
shake.
9 So, I think that there are some big 10 questions of what those results are going to look 11 like.
12 CHAIRMAN EELIN:
But page 16 gives you a 13 pretty good idea.
14 MR. SCHWARTZ:
Page 16 is we attempted-15 to -- certainly not exhaustively but we tried ~ to 16 frame --
17 COMMISSIONER ROGERS: Oh, yes. No, I mean 18 these are just words. These are titles. These aren't 19 policies.
These aren't practices.
These aren't-20 regulations, these are titles and I'm talking about 21 the actual specifics that are going to shake out'of 22 that.
That's going to be -- I have no idea what it's'-
4 23 going to look like because I suspect that'once'you 24 apply those criteria as a screen and you shake things 25 through, you'll find some pieces sticking in there NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N W.-
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53' l'
that are disjointed.
By themselves they can't be 2
- used.
You can't say, "Well, you've just got to ' adopt 3
this particular phrase or something that didn't go 4
past through the screen," and then there's going to be 5
something added at that point to make it fit in some 6
way.
So, it seems to me that the process to me is a 7
little bit unclear as to how that's'all going to come 8
out.
9 I mean these are all fine words, but I.
10 certainly don't see the list on 16 as telling-me 4
11 anything very much except the kind of area that you're 12 going to expect to be looking at.
But we're talking 13 about -- this paper says that you're really talking 14 about details.
You're talking about great detail in 15 the compatibility area.
16 As you've said yourself, Mr. Schwartz, P
17 that.there are elements, regulations, policies and 18 procedures.
Boy, that's a very wide swath of entities 19 there that are going-to be looked at from the l
)
20 standpoint of these criteria.
If they don't pass the 21 test of not giving rise to problems, they will have to i
22 be identically or essentially identically replicated 23 in the state program.
i 24 MR.
SCHWARTZ:
Commissioner Rogers, I-25 can't agree with you more.
Normally the devil's in J
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~.
54 1
-the details and I agree with you there.
Our attempt 2
was to try and' draw a bright line as best we could as 3
to what is different about compatibility as different 4
from public health.and' safety or the. adequacy 5
component.
There is a lot of work to be done and I'll 6
be'the first to agree to that.
If the Commission i
7 believes that this is the appropriate track to go on, 8
then the staff could take the next step and then 9
develop a little more detail to flesh out exactly the j
10 procedures-of the programmatic elements that's 11 necessary to be more explicit as to exactly what each i
12 element program, regulation is involved and what it is 13 that we mean by the essentially identical areas.
l 14 COMMISSIONER ROGERS:
Well, what would be
' I i
- L 15 the advantage of publishing the rule without having 4
16 done that?
Wouldn't it be well to wait until you've l
17 tried to do that before you published the the 18 policy statement, excuse me.
19 MR. SCHWARTZ: I think it's a policy issue 20 at this point.
An example might this is my 21 judgment.
As a policy matter that there may be -- I.
22 think there are sufficient words in here that 23 describes what the concept is with some examples of-24 that concept and that getting more input from the 25 public, from the agreement states would enhance the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
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55 1
areas when we go through the individual programmatic
)
2 elements in the NRC. program that would be candidates 3
.for being essentially identical to the NRC program.
4 COMMISSIONER de PLANQUE:
I think the 5
problem may be that the straw man for the adequacy 6
part is a little more formed than the straw man for 7
the compatibility and that may-be what you're 8
. suggesting.
]
9 COMMISSIONER ROGERS:
- _Oh, yes, true.
10 MR.
BANGART:
If I might add, we're 11 working in parallel with common performance indicators 12 initiative as well, as you know, and the incomplete 13 compatibility element of that is what we're talking I
14 about. The current thinking is that we would probably 15 have to proceed with-team approach using common
-1 16 performance indicators and that the compatibility i
17 determination for an agreement state program during l
18 this transition period would at least initially have 19 to use the existing approach where we'd just look at i
20 regulations and then use the old B-7 procedure.
As 21 these details work themselves out and we came up with 22 this screening and ' sorted out the adequacy piece 23 versus the compatibility piece, then in the latter i
a 24 stages of that transition period we'd be using perhaps f
25 draft procedures that would implement this broader NEAL R. GROSS COURT REPORTERS AND TRANSCRIDERS 1323 RHODE ISLAND AVENUE, N W.
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56 1
policy that we would be moving forward with after your 2
approval.
3 So, it is going to be a difficult next six 4
months or so before all the procedural details get 5
ironed out.z 6
COMMISSIONER ROGERS: I'd like to ask just 7
a little nitty gritty question because I
said 8
something that might have been wrong and I think you 9
said yes and maybe you didn't mean to say yes.
But in 10 the enclosure the compatibility agreement statement 11 program means -- I won't read all the words, but it 12 does say that it is a program containing elements, 13 regulations, policies and procedures considered 14 necessary to be compatible.
Then the next paragraph 15 says, "The following criteria shall be applied to 16 program elements and regulations to determine whether 17 they need to be adopted by agreement states."
18 Now, those are only two things, program 19 elements and regulations. Did you mean the full list?
20 MR. SCHWARTZ:
I meant the full list.
21 COMMISSIONER ROGERS:
You meant the full 22 list?
That was just shorthand for the full list.
23 Okay.
24 MR. SCHWARTZ:
Commissioner Rogers, in 25 answer to your point on page 16, I agree with you, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N W.
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57-1 these are - _this.is only a list and in the Commission 2
paper, although in shorthand also, we did attempt to--
3 provide at least a little more meat to those bones.
4 Bt$t I
do recognize that in order to get more 5
specificity as to what this policy proposes, that'it 6
may be useful to go back.
But that's the Commission's 7
judgment.
8 MR. SCHWARTZ:
(Slide)
I'd like to move 9
on, if I may, to viewgraph 17.
10 As I
mentioned earlier and as Dick 11 mentioned, we've attempted to conform the integrated 12 materials performance indicator program, performance 13 evaluation program and the compatibility policy as the 14 two wound its way down through the staff and up to the 15 Commission.
That development of common performance 16 indicators are closely coordinated with the efforts to 17 define the elements of an adequate state program and 18 the common indicators will be used along with non-19 common indicators to evaluate the adequacy ' of an l
20 agreement state program.
The ' proposed common 21 indicator program contemplates the use of a management
'i 22 review board to make the decision on the adequacy and' l
23 compatib'ility-for agreement states and-that 24 compatibility indicators will be developed for use by 25 the review team.
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58 1
COMMISSIONER de PLANQUE:
Shelley, how 2
will the agreement states have input into that?
3 MR. SCHWARTZ:
We would propose -- well, 4
first we'd have the workshop on -- you mean on the 5
impact program?
6 COMMISSIONER de PLANQUE: The last bullet, 7
the compatibility indicators.
8 MR. SCHWARTZ:
We would provide that to 9
them and get comments back from them when the staff 10 works on it.
11 COMMISSIONER de PLANQUE:
Will they have 12 any up front input?
13 MR. SCHWARTZ:
I expect they will, yes.
14 We would provide them the information that we have j
15 right now.
We have already had a workshop with the i
16 agreement states on the impact program as part of the i
17 Tempe meeting and we have a lot of input already from i
18 the agreement states on that.
They are now waiting 19 for the next go through and we will have another 20 discussion with them on that.
So, we've had at least 21 one or two opportunities to discuss the impact program 22 with the agreement states.
23 MR. BANGART:
We do not have established 24 a formal plan yet with milestones.
We've yet to do
~
25 that.
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59 1
COPiMISSIONER-de PLANQUE:
Okay.
2 MR. SCHWARTZ:
'(Slide).Viewgraph 18.
I 3
Future actions.
If the-Commission 4
approves publication, we will publish the draft policy 5
statement in the Federal Reaister for 90 days.
I will 6
note that we are planning to conduct a public meeting 7
on February 22nd and 23rd with the agreement states 8
and the regulated community, environmental community, 9
the same cross section that we had at the July 10 workshop as well, to discuss the proposed policy and 11 that.we're now drafting the agenda for that.
If there 12 are any issues that the Commission would like to see 13 on that agenda, I'd sure like to get that in as soon 14 as we can.
15 Then the final act on this issue would be 16 to prepare a Commission paper transmitting'the final 17 proposed policy statement to the Commission.
That 18 would include what we heard at the workshop'and also 19 include any comments we got as a ' result of the Federal 20 Reaister notice.
I 21 That concludes the presentation.
.22 CHAIRMAN SELIN:
I have a couple.of 23 observations.
First, some minor ones.
One is that we 24 have to be very careful.
The agreement states are 25 most affected by this.
We need to pay a lot of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W (202) 234-4433 WASHINGTON, D.C 20005 (202) 234-4433
60 l
l' attention to what they say, but they.shouldn't get a t
2 chance to read the documents before everybody else.
3 I mean the workshop is the right approach.
There'are i
4 many people that are affected in addition the 5
agreement states and they.should all be seeing the 6
material and they should all get a chance to comment 7
on this.
8 More generally, I really think you've dome-9 a superb job in breaking out the distinction between 10 an adequate program and a compatible program. As I've 11 said before, my view is that the agreement states i
12 program is different from a lot of other things that 13 we run, that the law sets it up differently and it is 14 different.
We don't delegate to them, they run a
- i 15 program and we're supposed to evaluate their programs 16 against these two rather vague -- well, adequacy is 17 not so vague, but compatibility is fairly vague, as 18 opposed to saying, are they carrying out our program 19 the way we would like them to carry it out?.At least
. I
?
20 in my case, that affects very much the way I look.at' i
21 what we require them to do and what they come back and i
22 do.
23 It is also possible that a program could 24 be compatible but not adequate, which is not the way-25 we've looked at things in the past.
In the past, we NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N W.
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61 1.
treated compatibility-as something like adequacy, but) 2 more - so, so that adequacy was included.
In other 3
words, if'a program wa 3 not adequate, we treated it as 4
if'it couldn't be compatible.
But the way you've set 5
this up, which I happen to think is correct, where
~
6 they're on different dimensions, each of those two 7
evaluations has to be done separately.
8 The fourth comment is that a number of 9
things that we've thought of.as being compatibility' 10 issues because of the confusion of division 1 and 11 division 2 is compatibility really are adequacy issues 12 and we need to get a very clear idea of what we 13 require for a program to be considered adequate. When 14 you talk about radiation standards, et cetera, those 15 standards have to be part of the adequacy program.
16 I do think that your page 16 gives a very l
17 clear idea of the kind of things that have to be 18 tested for a compatibility program and more precisely 19 say our view of compatibility requires a uniform 20 manifest and transportation criteria, et cetera, 21 things that'would not be-required' just on. straight 22 adequacy because if there were only one agreement:
23 state, they wouldn't come up.
t 24 So, I'm not particularly-alarmed by the.
25 fact that we're being asked to approve the policy NEAL R. GROSS COURT REPORTERS AND TRANSCRIDERS i
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statement before we'see what its full implementation 2
would carry out, but this. carrying out this concept 3
one step further, what do we really.. require for 4
adequacy, I think that has to be done very carefully.
5 I think you've done a very good job.
I 6
think it's been quite a different job, quite a 7
groundbreaking job and we'd really have to take a good 8
hard look. as to what we mean by an agreement 9
statement, whether on the one hand they're just people t
10 who carry out our program, in which case they're 11
- argue, "Why should we bother being an agreement 12 state."
On the other hand, do we really give them 13 full license to run where they are with just a very 14 simple test and I don't think anybody is in favor of 15 that.
So, the concept of what's an agreement utate is 16 an underlying question below this policy statement.
17 Commissioner Rogers?
18 COMMISSIONER ROGERS:
Yes.
I think that
{
19 you're drawing the distinction between adequacy and f
i 20 compatibility.
The way you've done it, I think, is a 21 very important step forward.
It does carry with it i
22 some questions.
For example, do you think that when 23 we're finished with this that it will be possible.to 24 maintain requirements that are not weighty enough to 25 lead to a finding of inadequacy or incompatibility, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE. N W.
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63 1
. but nevez-theless are kind of practices that somehow or 2
.other we've very strongly favored in the past?
3 I can't think of a particular example 4
right off the top of my head, but it seems to me that 5
going the route that we're going now, which I think is 6
the right way to go, does carry with it the-7 possibility that when we're finished we'll have a set 8
of criteria that somehow will leave out some of the 9
things that we think have been very good things for us 10 to insist on on the past, even though they don't fall 11 into this new framework.
1 12 I know just on the basis of the discussion 13 that we had this mornin3; about the ^ommissioners'-
14 views on what should be in regulations' and what should 15 not be in regulations will have to be brought to bear 16 on that.
Put I just wondered if you have thought 17 about that aspect of going this way.
18 MR. SCHWARTZ: The notion of this program, 19 adequacy and compatibility being reviewed as part of 20 the common performance indicator program, along with 21 some of the special or uncommon indicators, we'll say, 22 I think is what puts the thinking hat on and not just 23 an operation where we're just counting numbers and 24 that we will find some areas that are in the - gray 25 zone.
I'm sure we will.
That's where I believe that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N W.
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~
64 1
- the management review' board will-the. senior 2-managers of the Agency will then apply their judgment 3
as to the significance of some 'of those. gray areas and 4
then be able to recommend.to the Commission what we do 5
about it, whether we enjoin the governor in a
6 discussion on why the state is not compatible or other 7
sanctions or other actions that the commission might 8
want to take with respect to a finding of -not'-
9 compatibility.
10 I think-it's clear in the area of adequacy' 11 that we would -- I think we'd be very strong and have 12 a very rigid approach to those questions.
13 COMMISSIONER ROGERS:
With ' respect-to 14 areas for discussion at the workshop, I notice.that 15 really there's nothing in the SECY yet other than.a 16 brief mention of how to deal with shortcomings in 17 programs.
There is in part -- well, page 10, I guess l
1 18 it is, of.the SECY in Section 6, "The procedures.will 19 also establish the process for suspending an agreement I
t 20 statement
- program, placing it on probation and j
21 reasserting NRC jurisdiction."
22 Now, I take it that those are seen as 23 three separate and distinct issues there, a suspension 24 status, a probation status and then a reassertion of 25 NRC's jurisdiction.
Or do you just see that as' reall'y NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N W.
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65 1
one category?
2 MR. - SCHWARTZ:
I would see that as one 3
category with var'ious elements on what the Commission 4
4 could do with respect to a program that is either not 5
adequate or not compatible.
Those procedures are 6
being worked on under the programmatic assessment 7
group that was created after the SRM that said, "We 8
look at the agreement state program, rebaseline, look 9
at the policies."
So, that is art issue that's being 10 handled under that programmatic assessment group which 11 is being chaired by Dick Bangart.
12 COMMISSIONER ROGERS:
Well, I would think 13 the workshop would be a place that would explore what 14 kind of sanctions are meaningful here when a state t
15 falls short for some reason. -It does seem to me that 16 we need some kind of a graded approach.
I think one 17 of the difficulties that we had in explaining what we 18 did or what we didn't do a year or so ago had to do 19 with this go/no-go situation that we're in. We either 20 find it compatibility or you have to take it back.-
21 We've been trying to find some intermediate group to
~
22 give a little ' bit of time for things to happen both on I
- 23 our end and on the licensee's or the agreement state's 24 part.
I think that's an area that I personally would 25 like to see some considerable work done.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 HHODE ISLAND AVENUE, N W.
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66 1
MR. TAYLOR:
We agree.
.i 2
MR. SCHWARTZ:
We agree with that.
3
-COMMISSIONER ROGERS: Well, thank you very 4
much.
5 MR. SCIIWARTZ :
Thank you,' sir.
6 COMMISSIONER REMICK:
I'd also first like
-i 7
-to say I
think you've made some contributions 8
conceptually to this whole process of_.what do we mean 9
by adequacy and compatibility.
There's no question 10 about that should be given thought.
Where I start to-11 have some real stronger than concerns, point of 12 objections is when I see things like on page 3 that 13 people can set stricter dose limits when local 14 conditions warrant.
Now, dose limits to me, as I 15 think of them in Part 20, are standards.
I hear you 16 at least part-time saying that things like radiation 17 protection standards is defined in Part 20, presumably 18 would remain in division 1.
Let.me call it division 19 1.
I certainly agree that.there are certain things 20 like that.
21 Now, something interesting came to mind I
22 when the Chairman mentioned that those standards i
23 probably should be ' in the adequacy provision.
My i
^
24 first reaction is no,
that's inconsistent with I
t 25 conceptually what you've just defined.
But I think NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N W.
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perhaps he's-right.
I think things like radiation 2
protection standard might be both necessary for 3
adequacy and for compatibility.
I don't want us to 4
get back to where we were before where they were 5
confused, but it caused me to think that maybe there 6
are a few things that are necessary in both areas.
7 I'm convinced -- and by the way, I'm very 8
much for flexibility, where we can offer flexibility, 9
but I think we do have a responsibility to establish 10 standards.
So, I very strongly feel that there will 11 be something, whether we call it division 1 or not, 12 that are going to be necessary to be identical.
Then 13 I can't see where we can have exemptions where people, 14 for local needs, can vary those, or the fact that 15 their division 1 has no meaning.
To me, things that 16 people have the flexibility to change automatically 17 fall into division 2 because if I look at the 18 definition of former division 2,
it says, "Well, 19 states much address such principles," meaning 1 and 20 division 2.
"In their regulations, the states may 21 adopt requirements more restrictive than NRC rules."
22 So, to me, the type of things we're.
23 talking about automatically are not in division 1,
l 24 they're in division 2.
They're not even subject to
{
25 discussion.
We've already said they can have more NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N W.
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.I
68 1
restrictive, but there will be some things in my mind 2
that are going to be division 1 where we cannot offer 3
that type of flexibility.
4 So, that's the inconsistency that I see in 5
the paper.
It's in that area of providing_the local 6
option, local conditions to dictate.
I have great 7
concerns over that and where you draw the line.
Even 8
if it comes back to us for review, whether we can do 9
the adequate job of being sensitive to the. people who
(
10 would be affected by those.
11 I do have concerns.
I certainly' don't 12 want to hold the process up, but I agree too that 13 these elements in the compatibility I think are no t 14 as well addressed as the one on the adequacy.
If we 15 went out with what is here now, I'm not sure we would 16 get the comments that are going to be helpful.
I l
17 think you'll see the type of confusion that obviously 18 exists in some of our minds of what are the meaning of 19 these words and so forth.
So, I don't know what the 20 best solution of that is.
I 21 Having had some relationship with the 22 radiation protection. community and some familiarity 23 with ICRP, I thought I understood practice.
But I 24 must admit when the question came up is an incinerator 25 a practice or not is a good question.
So, I think you NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE N W.
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i do need to define. what we do mean by practice, 2
although it's a
common term in.the radiation 3
protection community and ICRP, et cetera.
4 I had mentioned that.I thought this bit 5
that you should add to your list of four, that people 6
should not be able to impose local requirements that 7
would - discourage certain practices, and I said I 8
thought discourage was better than bar or preclude.
9 But on second thought I'm not sure because discourage 10 is awfully hard to define and know when is it l
f 11 discouraging.
Maybe the word " effectively bar or 12 preclude," might be helpful-to your word "bar,"
13 because I can see that's the opposite extreme. Unless i
14 they say, "You shall not," somebody can say, "Well, 15 we're not barring it."
So, maybe " effectively" might 16 help.
I don't know.
17 MR. SCHWARTZ:
Trying to find intent.
18 COMMISSIONER REMICK:
Yes, that's'right.
I l
i 19.
But I think that pretty well covers my
]
20 comments.
I think you've come a
long
.way I
21 conceptually. I do think there's still some confusion 22 in the compatibility area that'should be addressed and 23 my inclination at the moment is to think personally i-!
24 that perhaps some of that should be refined and better 25 defined before we go out for public comment.
But NEAL R. GROSS COUR' REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N W.
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that's just my view at the' moment.
2 CHAIRMAN SELIN:
Commissioner de Planque?
3 COMMISSIONER de PLANQUE:
- Well, I too.
4 basically applaud the approach.
I like the idea that 5
you've worked on program in terms of adequate and 6
compatible rather than looking at regulations per se' 1
7 or the other subdivision.
So, I basically like the 8
approach.
I think I saw some little warning flags 9
that I was concerned with when you look at all the 10 items, let's say, on slide 10.
When you get into 11 staffing and personnel and maybe budget, as someone 12 indicated in the paper, because then in my mind you're 13 moving a little away from the performance aspect of it 14 and into the prescriptive.- I'm not sure-that that's 15 the right way to go.
So, I think there needs to be a 16 balance there that we don't move in 'the wrong 4
17 direction.
18 I also think, as was alluded to earlier, 19 that we have to keep in mind the end point as we go 20 through all of this. The end point being is how do we 21 determine when there's a case where we have to-withhold adequacy or have to withhold compatibility 22 23 and how do we do it and are these measures that we're 24 setting up going to work well for us when it comes to 25 that point of making those determinations?
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7
'71 1
In terms of the workshop, several items 2
already came up.
An awful lot needs to be fleshed out 3.
more, especially in the compatibility area.
In the 4
practice area, what does the practice mean? The low-
]
5 level waste example, I think, is a very good one that i
6 we discussed.
Is low-level waste a practice or is'a 7
type of burial the practice? How do you define that?
8 I think that's going to be pretty critical.
Perhaps 9
at the workshop is the place to discuss example of i
10 what the local conditions would be that would require 11 something more stringent.
I still find it hard to-12 think of an example that would come into-that area, 13 which brings me again to the notion of radiation 14 protection standards.
15 As Mr. Taylor pointed out, you have ways 16 of operating at lower than the radiation protection 5
17 standards through programs that we already had, like 18 ALARA, maybe some release levels that-trigger some 19 action.
In my mind, if the radiation protection 20 standards are not adequate,.then it's the standards l
21 that should be changed.
That leads you -into an 22 entirely different direction.
23 Along those same lines,.I would not like 24 to see radiation protection standards used as the 25 mechanism to make either economic or political NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS f
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decisions.
Those. are different decisions. and 2
shouldn't be hidden behind a radiation protection i
3 argument.
4 But basically.I think you've done a very 5
good job and I like the basic approach and I await the 6
details.
7 MR.. TAYLOR: When we talked about the more 8
stringent requirements, we sort of stuck with classes 9
of licensees.
The staff on page 12 of the enclosure 10 makes the distinction that were that to occur, and 11 granted we don't have too many good examples, that it-12 could be for particular licensees, meaning just a 13 single operation or classes.
So, I just WNiu '11Pe --
14 COMMISSIONER de PLANQUE:
Okay.
Which'is 15 different from this lot.
16 MR. TAYLOR:
You may be able to make a 17 case for a particular licensee perhaps far better than 18 you could make a case for more stringent requirements.
19 COMMISSIONER de PLANQUE:
Again, I think l
l 20 if there were some compelling examples that could be 21 given, it would make the discussion a lot easier.
f 22 MR. TAYLOR:
Certainly since this was a 23 state concern, perhaps they can help when we do engage 24 in discussions with good, concrete examples.
25 CHAIRMAN SELIN:
I think there are two NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE. N W.
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73 1
very separate issues.
One is whether'the state -- I.
[
2
.think' the Commission is unanimous that we will not 3
tolerate the state setting different standards from 4
the national standards.
But if they have an 5
inspection program that says, "In our opinion, if you 6
don't -meet your ALARA goals, you.have to close down,"
7 as opposed to something more generous that we would 8
do, that's the kind of thing that we're talking about.
9 But more specifically, tho' staff is 10 specifically asking for permission to publish this 11 document for comment at this point, isn't that right?
12 MR. SCHWARTZ:
That's correct, sir.
13 CHAIRMAN SELIN:
Okay.
So, we have an 14 action on the table.
I would suggest, and I think the 15 Commissioners probably support this, that at least a 16 few of these terms be defined before you-really ask 17 for that permission, particularly practice elements, 18 a couple of those pieces.
Take a look at that, take 19 a look at the shorthand, Mr. Schwartz, and see if you 20 want to expand that.
Then you can decide whether you 21 want us to vote on this as it stands or do you want to 22 work out a couple of examples.
If I knew what some of -
23 these words meant, I would be prepared to vote.
So, 24' my colleagues might want to see some examples carrie'd 25 out.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE N.W.
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But there is a proposition on the table.
2 We've all asked what do you mean by practico.
We've 3
all asked how would you come out in three or four' 3
4 situations? We're not clear what the answers are.
It 5
would probably be worthwhile to answer those, at least 6
those questions that were generally set up before you
.i
~
7 ask us to vote on that.
8 MR. SCHWARTZ:
Yes, we will do that.
9 CHAIRMAN SELIN:
And the rest we'll just 10 see.
We may have different views as to whether this l
11 is ready to go out for comments or would we want more 12 Commission insight.
13 MR. TAYLOR:
We may have to delay the 14 workshop or reschedule it based upon providing 15 additional information, but we'll take a look at it.
16 MR. SCHWARTZ: We'll take a look at it and 17 we can provide --
-]
1 18 CHAIRMAN SELIN:
As far as the workshop-19 goes, I will identify myself with Commissioner Rogers'
'l 20 comment, I think Commissioner de Planque and I suspect '
j i
21 Commissioner Remick did also, that we don't want to 22 just see here's a definition of what's compatible and 23 what's adequate, but have a discussion of how people 24 would see the Commission acting in certain 25 circumstances where the program was found to be NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N W.
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~. - - - - ~
.75 51-adequate;but not compatible. 'It was compatible' on one 2
set of compatibilities, but not others. At least this 3
discussion of a range of actions to take once you're-:
4 having that workshop.
I think we.would probably all 5
like to see those.
So what, what would we do with 1
6 this information if we had it discussed at the same b
7 point?
8 Okay.
Very good job.
It was obviously 9
very stimulating and really quite well done.
Thank 10 you very much.
11 MR. TA'1 LOR:
Thank you.
Appreciate it.
12 (Whereupon, at 3:30 p.m.,
the above-13 entitled matter was concluded.)
14 15 16 17 18 19 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
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~
CERTIFICATE OF TRANSCRIBER This is to certify that the attached events of a meeting of the United States Nuclear Regulatory Commission entitled:
TITLE OF MEETING:
BRIEFING ON OPTIONS FOR AGREEMENT STATE COMPATIBILITY POLICY PLACE OF MEETING:
ROCKVILLE, MARYLAND DATE OF MEETING:
JANUARY 24, 1994 were transcribed by me. I further certify that said transcription is accurate and complete, to the best of my ability, and that the transcript is a true and accurate record of the foregoing events.
,__ALA $
Reporter's name:
PETER LYNCH 9
6 NEAL R. GROS $
cover apostles Ano taAnscaisses 1333 RM005 ISLAND AVENUE. M.W.'
(208) 234 4433 WASHINGNMt. D.C.
2000s (202) 232 6
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!, <,,1 United States f,,,,}
Nuclear Regulatory Commission BRIEFING ON DRAFT POLICY STATEMENT FOR AGREEMENT STATE ADEQUACY AND COMPATIBILITY t
Sheldon A.. Schwartz, Deputy Director sOffice of State Programs JANUARY.24,1994 i
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United States
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Nuclear Regulatory Commission T
OUTLINE
/
BACKGROUND
/
PRINCIPLES OF THE AGREEMENT STATE PROGRAM
/
RESULTS OFDISCUSSIONS WITH VARIOUS GROUPS i
/
RELATIONSHIP BETWEEN ADEQUACY AND COMPATIBILITY
/
FUTURE ACTIONS t
2 Jasmery 24,19N e
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Nuclear Regulatory Commission BACKGROUND
/
Past Agreement State Compatibility Concerns
/
Commission Directed Policy Development
/
Establishment of Compatibility Working Group
/
May 20,1993 Public Meeting
/
July 26-27,1993 Public Workshop
/
August 30,1993 Commission Briefing
/
October 24-27,1993 AH Agreement States
' Meeting.
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United States
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' Nuclear Regulatory Commission PRINCIPLES OF THE AGREEMENT STATE PROGRAM 4
/
Recognize the interests of States y
/
Recognize the need for cooperation between the a
Commission and the States
/
Promote an orderly regulatory pattem between the i
Commission and the: States
/
Provide for coordination of the development of l
radiation standards and other policies
/
Two separate Requirements -- Adequacy and 7
Compatibility
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%.....}1Nuclear Regulatory Commission RESULTS OFDISCUSSIONS WITH VARIOUS GROUPS
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States
> Minimum number of requirements for compatibility
> Uniformity forinterstate commerce
> Uniformity of radiation standants
> Early and substantive involvement
/
Regulated Community
> Strict adherence to uniform nationalradiation standards
/
Environmental Community
> Flexibility to adopt more stringent requirements Jenaery 24,19N l
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Nuclear Regulatory Commission 1
'r RELATIONSHIP BETWEEN ADEQUACY AND COMPATIBILITY
/
Adequacy component provides for an acceptable level of protection for public health and safety in an Agreement State.
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Compatibility component provides for the overali nationalinterest in radiation protection.
6
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\\,,,,,)3 Nuclear Regulatory Commission ADEQUACY COMPONENT
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Requires that the level of protection of public health and safety be equivalent to, or greater than, that provided by the NRC.
/
Would not require that NRC requirements be implemented essentially verbatim or through a particular mechanism such as a regulation, unless one
}
of the compatibility criteria foridentical adoption needed to be met i
i i
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7 January M,19N '
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Nuclear Regulatory Commission ADEQUATE MEANS:
An acceptable level ofprotection of the public health and safety from the radiation hazards associated with the use of byproduct, source, and
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special nuclear matedals.
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Nuclear Regulatory Commission i
AN ADEQUATE AGREEMENT STATE PROGRAM MEANS:
An effectively implemented regulatory program containing elements, regulations, policies, and procedures considered i
necessary by the Commission to provide an acceptable level of protection for the public health and safety from the radiation hazards associated with the use of byproduct, source, and special nuclear materials.
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Nuclear Regulatory Commission EXAMPLE ELEMENTS OF AN ADEQUATE PROGRAM Protection Statutes y
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Staffing and Personnel Qualifications a
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Nuclear Regulatory Commission COMPATIBILITY COMPONENT
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Focuses on State action orinaction that would have extraterritorialimpacts either on other States or on the effectiveness of the nationalprogram.
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Requires the essentially identical adoption of certain elements of NRC regulatory program 11 kmu. sm
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Nuclear Regulatory Commission COMPATIBLE MEANS:
The consistency between NRC and Agreement-State regulatory programs which is needed in order to establish a national.
radiation protection program for the regulation of byproduct, source and special nuclear material-which assures an orderly' and effective regulatory pattem in the administration of this nationalprogram.. Compatibility 'shall be aimed at ensuring that the flow ofinterstate commerce is not impeded, that effective communication in the radiation protection ' field is maintained, that central radiation protection concepts applicable to all licensees are maintained, and that information needed for the study of trends in radiation protection and other national program needs are ascertained.
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Nuclear Regulatory Commission A COMPATIBLE AGREEMENT STATE PROGRAM MEANS:
A regulatory program 'containing elements, regulations, policies, andprocedures considered necessary by the Commission to effectively implement the term " compatible" as defined.
above.
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Nuclear Regulatory Commission CRITERIA ' FOR IDENTICAL REQUIREMENTS
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Avoid a significant burden on interstate commerce l
/
Ensure clear communication on fundamental radiation protection terminology
/
Ensure clear communication and common understanding as to certain centralradiation protection concepts applicable to alllicensees
/
Assist the NRC in evaluating the effectiveness of the overall nationalprogram for radiation protection 6
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Nuclear Regulatory Commission t-POLICY UNIFORMITY-FLEXIBILITY BALANCE
/
if none of the cateria foridenticalrequirements for compatibility is met, the State would have the flexibility to design its programs to meet local needs and conditions, as long as the program is adequate.
/
To meet local needs and conditions. States could for particular classes oflicensees adopt more stringent radiation protection requirements:
Basic dose standards for alllicensees essentially identical to NRC.
Does not bar practice..
States submit proposed more stringent requirements to NRC for Commission review and approval.
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Nuclear Regulatory Commission l
EXAMPLE ELEMENTS OF A COMPATIBLE PROGRAM Reciprocity Radiation Labels, Signs, and Symbols Records and Reports Uniform Manifest Radiation Protection Transportation Regulations Terminology Radiation Protection Event Reporting Standards L
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Nuclear Regulatory Commission RELATIONSHIP TO DEVELOPMENT OF COMMON PERFORMANCE INDICA TORS PROGRAM:
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The development of the common performance indicators closely coordinated with efforts to define the elements of an adequate State program
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The common indicators willbe used along with non-I common indicators to evaluate the adequacy of an Agreement State program.
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The proposed common indicators program contemplates using a Management Review Board (MRB) to make the decision on the adequacy and compatibility
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Compatibility indicators will be developed for use by the Review team.
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Nuclear Regulatory Commission FUTURE ACTIONS s
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Publish draft policy statement in Federal Register for 90 days L
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Conduct a public meeting on February 22 and-23,1994
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Prepare a Commission Paper transmitting the finalproposed Policy Statement i
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