ML20217L844

Forwards NRC Form 521, Request for Publication or Elimination of an NRC Mgt Directive, Which Transmits New MD (MD 5.8) & Handbook for Publication.Copy of SRM Re SECY-97-054 Encl

ML20217L844
Person / Time
Issue date:	08/13/1997
From:	Bangart R NRC OFFICE OF STATE PROGRAMS (OSP)
To:	Meyer D NRC OFFICE OF ADMINISTRATION (ADM)
References
SECY-97-054-C, SECY-97-54-C, NUDOCS 9708190111
Download: ML20217L844 (26)

Text

_

4 NEMbhANDUM TO: David L. M;ysr, Chief Rules and Directive Branch Division of Administrative Services-Office of Administration FROM: Richard L. Bangart, Director Office of State Programs

SUBJECT:

TRANSMITTAL OF NEW MANAGEMENT DIRECTIVE 5.8

' ..a J ed NRC Form 521, " Request for Publication or Elimination of an NRC "anagemsnt Directive," transmits a new Management Directive (MD 5.8) and Handbcok

' r publicmion.

ihe Commission approved MD 5.8 and Handbook as part of the Staff Requirements Memorandum dated June 30,1997 (copy attached) on SECY 97 054 " Final Recommendations on Policy Statements and Implementing Procedures for: ' Statement of Principles and Policy for the Agreement State Program' and ' Policy Statement on Adequacy and Compatibility of Agreement State Programs.'"

MD 5.8 and Handbook had received previous office review and concurrence both through a request for review and comment dated August 23,1990, and later as part of office review and concurrence on the Commission Paper SECY 97-054, in addition, comments were received from A0reement States. An analysis of the Agreement State comments is also i 1

attached.

Attachments:

As stated

\

-m

\

g p g (id M$ 5}D" E?: BC Dir,tnbution:

DIR RF DCD (SPO3)

SDroggitis PDR (YES v' NO )

Management Directives File DOCUMENT NAME: 'G:\TJO\ TRANSMIT \MDu8.XMT *See previous concurrence.

T2 ruesve e aopy of this document. hulicate in the boa: 'C' = Copy without attachmentrenclosure /T[* = Copy with attachment > enclosure *N' = No copy l OFFICE OSP [ OSP:DD OSP:Dff p -

-l l

' NAME TJO'Brien:nb = PHLohaus RLBangart '

l DATF, 08/07/97* 08/07/97* 08//3/97 9708190111 970813 OSP FILE CODE: SP-M- i PDR STPRO ESQOEN '

PDR i n * * * -

,i

WEMORANDUM TO: David L. May:r, Chief Rules and Dircctivs Branch Division of Administrative Services Office of Administration

~ 'JM: Richard L. Bangart, Director Office of State Programs

SUBJECT:

TRANSMITTAL OF NEW MANAGEMENT RECTIVE 5.8 The attached NRC Form 521, " Request for Publication nr Eliminatio of m NRC Management Directive," transmits a new Management Directive ( D 5.35 and handbcck for publication. ,

The Commission approved this MD in the Staff Requirements Memo dated June 30,1997 (copy attached) on SECY 97-054 " Final Recommendations on olicy Statements and implementing Proccdures for: ' Statement of Principles and P icy for the Agreement State Program' and ' Policy Statement on Adequacy and Compatib'ity of Agreement State Programs.'"

The MD has previous office review and concurrence bothj hrough a request for review and comment, and later as part of office review and concurrence on the Commission Paper SECY-97-054. In addition, comments were received fro /n Agreement States. An analysis of the Agreement State comments is also attached.

Attachment:

As stated

/

/

/

/

/

/

/

/

/

/

Distnbution:

DlR RF DCD (SPO3)

SDroggitis PDR (YES V~~ NO ~

)

Management Directives File DOCUMENT NAME: G:\TJO\TRANSblT\Mp58.XMT 13 ..w. . , .e w. e. cum.ni. wk. . in in. nom W chvennout .ti.cnm.nv.ncw ur. r - copy wien ett cnm.nv.ncio.u,. N - No copy OFFICE OSP l O$P: $ OSP:D NAME TJO'Brienmt'7W PHLoPiag RLBangart DATE 08/7 /97 08/ - J /97 08/ /97

t,*ntar, y> t UNITED STATES NUCLEAR REGULATORY COMMISSION b* I} WASHINGTON, D.C. 30eeHo01

% , , , , , !y August 13, 1997 MEMORANDUM TO: David L. Meyer, Chief Rules and Directives Branch Division of Administrative Services Office of Administration FROM: Richard L. Bangart, Director , / [f f7 4 Office of State Programs /(/t@ A ( @t g4 l

SUBJECT:

TRANSMITTAL OF NEW MANAGEMENT DIREC The attached NRC Form 521, " Request for Publication or Elimination of an NRC Management Directive," transmits a new Management Directive (MD 5.8) and Handbook for publication. -

The Commission approved MD 5.8 and Handbook as part of the Staff Requirements Memorandum dated June 30,1997 (copy attached) on SECY 97-054 " Final Recommendations on Policy Statements and Implementing Procedures for: ' Statement of Principles and Policy for the Agreement State Program' and ' Policy Statement on Adequacy and Compatibility of Agreement State Programs.'"

MD 5.8 and Handbook had received previous office review and concurrence both through a request for review and comment dated August 23,1996, and later as part of office review and concurrence on the Commission Paper SECY 97-054, in addition, comments were received from Agreement States. An analysis of the Agreement State comments is also attached.

Attachments:

As stated

NRC FORM 521 U.S. NUCLEAR RE!ULATORY COMMIS SlON p.sei l,

REQUEST FOR PUBLICATION OR ELIMINATION OF AN NRC MANAGEMENT DIRECTIVE I

TO: DMalon of Freedom of Information and Publications FRoM: (Office and Drvtalon or Branch)

Services, ADM Office of State Procrams IDENTIFICATlON OF DIRECTIVE NUM8ER AND TITLE:

Former No(s)

Manacement Directive 5.8 REPLACES MC/ APP O YES P vos e w w er meese ews e as acree seriames aco resumes taurim ouser ow Nosnas too ow ww, remos in ') 0 NO BASIC AUTHORfTY FOR ISSUANCE OR EUMINATION (Cao Ezecuuve Order, Statues, other Drective, etc.):

N/A TYPE OF ISSUANCE: D Directive O Manual Chapter TYPE OF ACTION: O New O Change Page O Handbook O Appendix 0 Revision O Elimination Please include in the purpose statement a bnet docussion (and section locaten in the Directrve or Handbook) If any of the following changes were made:

(1J Changes were made to tne responsibilite and authorttles, (2 smces, (3) new requirements were established that resultnalincoordmation addito) now policy among (in Drective) offices or newarea,(4) in 8 programmatc procedures (in Handbook) new areas were add of Coverage were added, and (5) any other signrficant or unusual changes that were made.

PURPOSE (Desertbo in 200 or 'ower words) (tf euminatina a manacement directive. crovide lust +caton)

This new Managerent Directive and Handbook provide the implementing procedures for the " Statement of Principles and Policy for the Agreement State Program and Related Procedures" Policy Statement approved by the Commission on June 29, 1995 (SECY-95-112 and SECY-95-115).

O cnock nere if a summary of comments is attached.

O Check here if this Directive, Handbook qualifies for approval by the Director, Office of Administration. pursuant to Handeook 1.1, Part if (D)(5)

Recommended Distnbution: Check offices to which Directive / Handbook was sent for Comment:

(I Custodians of complcte sets O ACNw O OCA O OSP O Branch Chiefs & Above O ACRS O OCAA D RES O Division Directors & Above D ADM O OCM D RI - RIV O Assistant Directors & Above O AEOD O OE DR only O A!! Employees O ASLBP O OGC* O SBCR O Other (Phase SpecM/) O EDO O Of O SECY O IRM G OlG* O G NMSS O OIP O O NRR O OP O O OC D OPA O

• OGC and OlG must review emh management droctive petor to offloe dwsctor sagnsture below (per MD 1.1).

STAFF CONTACT:

Tom O'Brien l MAIL 0-3-H-20 StoP: l TELEPHONE:

415-2308 SIGNATURE: OFFICE DIRECTOR OR REGIONAL ADMINISTRATOR NAME TirLE Richard L. B,angart Director kdr GsurGtf Of/hiffe;f

--.,wr.x.s wn.~ ww l

I Action: Bangart; SP I N

[ k: UNITED STATES -

NUCLEAR REGULATORY COMMISSION.

Cys: Callan 4 Thompson-  !

g ;l , , Q$p WASHINGTON, D.C. 70ll5-0001 g g. I

' t, Norry

%***** 57JUL -2 PM 3:Me 30.1997 slaha Thadani. RES i '

crnce or TMs '

Ross, AEOD secastAnt- Paperiello. NMSS--

Collins, NRR ,

(PLohaus. SP  ;

i MEMORANDUM TO: L. Joseph Callan I Exec i D actor for_ Operations l l

FROM- Jo . Hoy , Secretary <

SUBJECT:

- ST FF REQUIREMENTS - SECY 97-054 - FINAL ,

I RECOMMENDATIONS ON POLICY STATEMENT AND IMPLEMENTING PROCEDURES FOR: " STATEMENT OF PRINCIPLES AND POLICY FOR THE AGREEMENT STATE PROGRAM" AND " POLICY STATEMENT ON-ADEQUACY AND COMPATIBILITY OF AGREEMENT STATE PROGRAMS" -

The commission has approved the final " Statement of Principles l and Policies for.the Agreement State Program," final " Policy Statement on Adequacy and Compatibility of the Agreement State Programs," and the accompanying implementation procedures, subject to the following comments:

1. the "NRC" compatibility category identifies regulations l that are reserved to the NRC but allows states to adopt i them for clarity, but the policy omits certain NRC l

- regulations that Agreement-States may not-adopt because  :

the. areas in which they apply are reserved to the NRC. I The Policy and procedure should be revised to identify .

specifically the regulations in the ,"NRC" category that the~. States may adopt for clarity and a separate-

- category ("NRC-X or some similar designation) created  !

for those. regulations, such as 10 CFR Part 70.21 and-much of*10 CFR Part 50 that are reserved for the NRC and that-States may not adopt and still be: fount to have compatible' regulatory programs. The flow chart in-t Appendix A to Handbook 5.9 should also be revised to

< reflect this distinction.

FEBei- (SP) (SECY Suspense: 9/19f97)- 9300061/9300171 8/22/97

2. The flow chart in Appendix A to Handbook 5.9 should,be

- revised to clarify that regulations required for health-4

.. I

SECY NOTE - THIS SRM,-SECY-97-054, AND THE COMMISSION VOTING l

-RSCORD CONTAINING THE-VOTE SHEETS OF ALL l COMMISSIONERS WILL BE MADE PUBLICLY AVAILABLE 5  !

WORKING DAYS.FROM THE DATE OF THIS-SRM. I L /,

[ r

_ /[ _ _ _ _ _ _ _ __ _ . _ __.

i t O

1 and safety may also be included in compatibility categories A,B, and C as well as in the Health and Safety category. For the same reason, the staff should also add the following sentence to the last paragraph of page 27 in the Federal Rec 3 ster Notice: "Many program elements for compatibility also impact public health and safety; therefore, they may also be considered program elements for adequacy."

FB9H (SP) (SECY Suspense: +/2W47) 9300061/9300171 8/22/97 3.a. The staff should prepare a letter to the Agrcament States identifying the regulations that have been upgraded from former category 3 to new categoriGJ A,B, or C, or from former category 2 to new categories A or B since these changes will require the States to take action for any regulations that would fall into a higher compatibility category. The letter should also indicate the potential impact of the changes upon a finding of compatibility, and the date that State action is to be completed.

FBam (SP) (SECY Suspense: +/3W47) 9700223 9/23/97 3.b. At the same time, the staff needs to continue to review its regulation and other program element tables to identify inconsistencies, errors, or omissions, and to verify the appropriateness of the compatibility assignments. In that regard, the compatibility assignments for 10 CPR 30.10, 40.10, and 70.10 are inconsistent with each other, and the compatibility assignments for mobile nuclear medicine (35.29, 35.80) and the definition of brachytherapy source (35.2) warrant further evaluation.

FEBN- (SP) (SECY Suspense: 4/2W-974 9300061/9300171 8/22/97

4. With respect to the question of whether existing agreements with the States will need to be amended after the proposed policy is approved, the staff should write the standard agreement so as to ensure that existing agreements remain valid and that amendments will be limited to those required by a truly compelling legal or policy needs. If modification of the Policy Statements will be needed, the Commission should be promptly informed, g&b' FEDO4- (SP) (SECY Suspense: -9/30497) 940 M 9/23/97

5. The staff should prepare guidance for the Management Review Board regarding adequacy and compatibility determinations. Such guidance would also enable the States to perform self assessments of their programs, should they choose to do so, with some confidence that the NRC's review would produce similar conclusions.

FEDN (SP) (SECY Suspense: -1/3W.984 9700224 1/23/98

,g , ,

3-

6. The staff should continue to defer findings on

• Agreement State OM rules until NRC issues a revised .

Part 35 rule as directed in the SRM on DSI-7 and an effective date for Agreement State implementation has been set. Such a date could be earlier than the normal 3-year interval for Agreement State implementation of an NRC rule.

WDO4- (SP) (SECY Suspense: 4/2G/47) 9300061/9300171 8/22/97

7. The staff should modify the definition of " basic radiation protection standards" contained in the

" Policy Statement on Adequacy and Compatibility of Agreement State Programs" to reflect recent Commission decisions on the imposition of constraints, such as the

" constraint" rule on air emissions and the license termination rule.

FBBO-) (SP) (SECY Suspense: &/2 9-/97)9300061/9300171 8/22/97

8. The draft of Management Directive 5.9 contained in SECY-97-054 should be modified to reflect the Commission's direction to the staff in the SRM on DSI 22 to develop an implementation plan that would reassign responsibility for preparation and coordination of rulemaking from Research to the Program Offices. Suggested editorial changes to accomplish this objective are attached.

WDQ4 (SP) (SECY Suspense: 4/29/47) 9300061 8/23/97

9. Since the staff's proposal would make Agreement State reporting of events to NRC's Nuclear Materials Event Database an item of compatibility, references in the text to voluntary reporting should be eliminated, and the staff should make it clear that reporting of materials events is mandatory.

WDQ4-(SP) (SECY Suspense: 4 /29/-9 7) 9300061/9300171 8/22/97

10. The staff should submit an information paper to the Commission describing their actions to maintain frequent contact with the individual Agreement States to assess their program status and the procedure that will be used for this purpose and the staff's plans for review of draft State regulations as well as closing out the review of revisions of State regulations for compatibility with Part 20. The paper should also include the resource requirements in headquarters and the field needed to meet these responsibilities. The staff should also inform the Commission how it monitors and reviews State actions, including the review of draft regulations, and inform the Commission of any unexpected or significant problems that develop.

WDQ4 (SP) (SECY Suspense: 9/30/M) 9700225 9/23/97

7 ,'.

11. The staff shoul'd provide:its recommendations with respect to ethics, conflict-of-interest,_and financial e i disclosure requirements for the' Agreement State Program

- in a timely manner, .

-(eDel ' SP( )- (Secy-Suspense: .2,L30/m) 9700226 7/23/97

Attachment:

As stated 4

. cci Chairman Jackson Commissioner Rogers Commissioner Dieus '

Commissioner Diaz Commissioner McGaffigan OGC CIO t CFO OCA~

OIG Office Directors, Regions, ACRS, ACNW, ASLBP (via E-Mail)

PDR DCS 4

6 i

l b

', ,o Directive 5.9, Adequacy and Compatibility of Agreement State Programs should be changed as noted below. ,

1. On page 3, under Office of the General Counsel, line 2, insert 'that' after the word ' regulations.'

2. On page 3, under Director, Office of Nuclear Regulatory Research, change the parenthetical to (035) and move this section to that position.

3. On page 3, under Director, Office of Nuclear Regulatory Research, delete the entire first bullet. ,

4. On page 3, under Director, Office of Nuclear Regulatory Research, in the second bullet (now the first), line 2, insert 'and regulations that' after ' elements.' Also, insert ' the purpose of' after 'for.'

5. On page 4, under Director, Office of Nuclear Material Safety and Safeguards (NMSS), change the parenthetical to (034) and move this section to that position.

6. On page 4, under Director, Office of Nuclear Material Safety and Safeguards (NMSS), insert a new first paragraph which states: " Reviews, evaluates and determines, in coordination with other NRC offices, these regulations that an Agreement State should adopt as legally binding requirements for the purpose of compatibility or health and safety. (a)"

7. On page 4, under Director, Office of Nuclear Material Safety and Safeguards (NMSS), in what is now second paragraph, line 2, delete 'and regulations.'

8. On page 4, under Director, Office of Nuclear Material Safety and Safeguards (NMSS), in what is now second paragraph, after the end of line 3, add '(b).'

9. On page 4, under Director, Office for Analysis and Evaluation ~of Operational Data (AEOD), line 2, insert 'that' after ' regulations.'

10. On page 4, under Regional Administrators, line 2, insert

'that' after ' regulations.'

Attachment 1

9 9 o

4 e

PROPOSED 274b AGREEMENTS WITH STATES DIRECTIVE 5.8

, i i e R

U.S. NUCLEAR REGULATORY COMMISSION -

Volume 5: Governmental Relations and Public Affairs OSP

- Policy.

(5.8 01) -

-* It is the policy of the U.S. Nuclear Regulatory Commission to implement procedures for establishing new agreements with individual States pursuant to Section 274 of the Atomic Energy Act of 1954, as amended.

Objectives.

(5.8-02)

• To establish a system for an orderly transition in the discontinuance of certain regulatory authority by the NRC with assumption thereof by the State through a standard agreement.

Organizational Responsibilities and Delegations of Authority (5.8 03)

The Commission -

(031)

• Approves requests from a Governor to enter into an agreement under Section 274 of the Atomic Energy Act of 1954, as amended.

• Approves policy matters related to NRC's Agreement States program.

The Executive Director for Operations (EDO)

(032) e Provides management direction and oversight for the activities described herein.

The Director Office of State Programs (033)

• Coordinates the review and action on State requests for 274b agreements or amendments to agreements with cognizant regional administrator and office-directors, including the planning of meetings with the State to discuss issues related to the request. (a)

• Identifies an NRC contact, prepares correspondence to the State, as 4

appropriate, and provides a schedule for accomplishing staff work on the agreement request. (b)

• Reviews State requests for 274b agreements or amendments to agreements to determine adequacy and compatibility of State's program. (c) i d

---ew ,

~

s *

• Prepares a Commission Paper that includes the staff assessment of the State's request and a proposed Federal Register notice publishing this-information for public comment for 4 consecutive weeks according to the -

Atomic Energy Act. (d)

• Prepares a Commission Paper for final approval of the State's request by the Commission that analyzes and responds to public comments in cordination ,

with OGC and affected offices. (e)

• Prepares approved agreement for the signature of the Chairman and Governor. Arranges all post signing coordination for the transfer of ,

regulatory authority under the effective agreement. (f)

Office of the General Counsel (OGC), Director, Office of Nuclear Regulatory Research (RES), and Director, Office for Analysis and Evaluation of Operational Data (AEOD) (034)

• Consult with the Director, OSP, concerning the proposed agreement. (a) .

• Appoint principal working level contacts for review of the proposed agreement. (b)

• Review, comment and concur, if appropriate, on the proposed agreement and final Commission Paper, (c)

Director, Office of Nuclear Materials Safety and Safeguards (035)

• Consult with the Director, OSP, concerning the proposed agreement. (a)

• Appoint principal working-level contacts for review of the proposed agreement. (b)

• Review, comment and concur, if appropriate, on the proposed agreement and final Commission Paper. (c)

• Coordinate the transfer of license files and other appropriate material for sealed source and devices registrations and site decommissioning management plan sites when agreement is effective. (d)

Regional Administrators (036)

• Consult with the Director, OSP, concerning the proposed agreement. (a) li

- N

< a

• Appoint principal working level contacts for review of the proposed agreement. (b)

• Assists in the coordination of the review and action on State requests for 274b agreements or omsndments to agrecments, including the planning of meetings with the State to discuss issues related to the request. (c)

• Review, comment and concur, if appropriate, on the proposed agreement and final Commission Paper. (d)

• Coordinate with the State prior to the agreement on the licenses and contaminated or potentially contaminated sites and decommissioning records to be transferred when the agreement is effective. (e)

• Provido the opportunity for license reviewers and inspectors from the State seeking an Agreement to review Regional licensing casework in progress and observe NRC inspections at the facilities of licensees in State. (f)

• Coordinate the transfer of licenses, license files and other appropriate material when agreement is effective, including meeting with representatives of the State seeking an agreement to describe and explain licenses and files that will be transferred to the State. (g)

• Assure, to the extent practicable, that licensing and inspection backlogs do not exist for licensees in the State seeking an agreement. (h)

Applicability.

(5.8 04)

The policy and guidance in this directive and handbook apply to all NRC employees who process a request for a 274b agreement. (a)

Handbook.

(5.8-05)

Handbook 5.8 contains an overview of the process, guidelines and a standard agreement.

References.

(5.8 06)

Atomic Energy Act of 1954, as amended (42 USC. 2011 et seq.)

Criteria for Guidance of States and NRC in Discontinuance of NRC Regulatory Authority and Assumption Thereof by States through Agreement (46 FR 7540, January 23,1981, as amended by policy statements published at 46 FR 36969, July 16,1981, and 48 FR 33376, July 21,1983),

iii

- ~ _ . .. .- ..- . - . ._.-..... ..-. - .. ..... .. . - .- .. _ . . . - . .

I

-e *

.o _

1 Status and Notice cf Availability of Two Policy Statements Concerning the

- Agreement State Program (60 FR 39463, August 2,1995).

Evaluation of Agreement State Radiation Control Programs (60 FR 54734, t October. 25,1995),

Management Directive 5.6, Integrated Materials Performance Evatustion Program, approved September 12,1995, 4

1' 5

i ,

4 i

4 4

E iv

., ,. , , , , . + ,e . . - , , -

PROPOSED 27.ib AGREEMENTS WITH STATES HANDBOOK 5.8 6

. . - . .. . - _ . . . .- . . - . ~ . . . . . . - . . - - . . - . . -- . .- ..- - ... -.- . -- .--.

-i

.,,, c ';

, = -,. _e i s. .

Contents --

' Overview (A) -

Process Sequence for New Agreements (8)

Standard Agreement (C) -

4 d

Exhibit .

i 1 -- Standard Agreement under Section 274b 4

+

b s

1 j

e E

b e

k' n-r -

a- n -~--p  ; e , e - n., ,- ~w +w-- e . in,-, , .

--n---e. ---, - ,-

"J. -, e Overview (A)

NRC is authorized under Section 274 of the Atomic Energy Act of 1954, as amended, to enter into agreements with States -- (1)

• Upon certification by the Governor that the State hos a program for the control of radiation hazards adequate to protect public health and safety with respect to the materials within the State covered by the proposed agreement and the State desires to assume regulatory responsibility for such material. (a) e After a finding by ths Commission that the State program is in accordance with the requirements of Subsection o of Section 274 and in all other respects compatible with the Commission's program for the regulation of such materials, and is adequate to protect public health and safety with respect to the materials covered by the proposed agreement. (b)

This management directive and handbook supplement the " Criteria for Guidance of States enu NRC in Discontinuance of NRC Regulatory Authority and Assumption Thereof by States through Agreement," (46 FR 7540, January 23,1981,as amended by policy statements published at 46 FR 36969, July 16,1981, and 48 FR 33376, July 21,1983) and the Office of State Programs Internal Procedure C.1., " Processing a New Agreement." These documents should be used in conjunction with this handbook.

Process Sequence for Now Agreements (B)

The typical sequence for NRC in processing a request for an agreement is summarized below:

e Receive a letter of intent from the Governor of the State interested in an agreement with NRC. (1) e Provide guidance to the State on the necessary elements of an Agreement State program including draft legislation, regulations, and program description. (2) e Receive and review the request for an agreement from the Governor, the program description, and necessary program elements. (3) e Transmit and resolve any outstanding items with the State regarding the proposed agreement request. (4) e Prepare Commission Paper on the proposed agreement request, including staff assessment and Federal Register Notice with the proposed agreement for public comment. (5) i

.. -- - - . ~ _ - - -- - . .. - - - . - _ . . __ - - - - . .

. i s

e - Publish Federal Register Notice with the proposed agreement for public comment for 4 consecutive weeks according to the Atomic Energy Act. (6) e Prepare' Commission Paper that analyzes and responds to public comments and provides staff recommendations on the agreement for final approval by the Commission. (7) e Prepare approved agreemerit for the signature of the Chairman and Governor upon Commission approval and crrange signing ceremony, if necessary. (8) e Arrange all post signing coordination for the orderly transfer of regulatory authority under the effective agreement. (9)

Standard Agreement (C)

The standard agreement describes the categories of materials to be regulated by the, State and the effective date of the agreement. (1) 5 ii s - - , - -, .- , ., , , ee-a e

', , a Exhibit 1 AN AGREEMENT BETWEEN THE UNITED STATES NUCLEAR REGULATORY COMMISSION AND THE STATE / COMMONWEALTH OF [ insert name of Statel FOR THE DISCONTINUANCE OF CERTAIN COMMISSION REGULATORY AUTHORITY AND RESPONSIBILITY WITHIN THE STATE / COMMONWEALTH PURSUANT TO SECTION 274 OF THE ATOMIC ENERGY ACT OF 1954, AS AMENDED WHEREAS, The United States Nuclear Regulatory Commission (hereinafter referred to as the Commission) is authorized under Section 274 of the Atomic Energy Act of 1954, as amended (hereinafter referred to as the Act), to enter into agreements with the Governor of any State / Commonwealth providing for discontinuance of the regulatory authority of the Commission within the State / Commonwealth under Chapters 6,7, and 8, and Section 161 of the Act with respect to byproduct materials as defined in Sections 11e.(1) and (2) of the A::t, source materials,- and special nuclear materials in quantitles not sufficient to form a critical mass; and, WHEREAS, The Governor of the State / Commonwealth of (insert name)is authorized under (cite enabling statute) to enter into this Agreement with the Commission; and, WHEREAS, The Governor of the State / Commonwealth of (insert name] certified on (date],

that the State / Commonwealth of (insert name) (hereinafter referred to as the State / Commonwealth) has a program for the control of radiation hazards adequate to protect public health and safety with respect to the materials within the State / Commonwealth covered by this Agreement, and that the State / Commonwealth desires to assume regulatory responsibility for such materials; and, WHEREAS, The Commission found on [datel that the program of the State / Commonwealth for the regulation of tha materials covered by this Agreement is compatible with the Commission's program for the regulation of such materials and is adequate to protect public health and safety; and, i

WHEREAS, The State / Commonwealth and the Commission recognize the desirability and importance of cooperation between the Commission and the State / Commonwealth in the formulation of standards for protection against hazards of radiation and in assuring that State / Commonwealth and Commission programs for protection against hazards of radiation will be coordinated and compatible; and, WHEREAS, The Commitsion and the State / Commonwealth recognize the desirability of the teciprocol recognition of licenses, and of the granting of limited exemptions from

, licensing of those materials subject to this Agreement; and, WHEREAS, This Agreement is entered into pursuant to the provisions of the Atomic Energy Act of 1954, as amended; NOW, THEREFORE, it is hereby agreed between the Commission and the Governor of the State / Commonwealth acting on behalf of the State / Commonwealth as follows:

J ARTICLE l' Subject to tha exceptions provided in Articles 11, IV, and V, the Commission shall discontinue, as of the effective date of this Agreement, the regulatory authority of the Commission in the State / Commonwealth under Chapters 6,7, and 8, and Section 161 of the Act with respect to the following materials:

A. Byproduct materials as defined in Section 11e.(1) of the Act:

B. Byproduct materials as defined in Section 11e.(2) of the Act; C. Source materials:

D. Special nuclear materials in quantities not sufficient to form a critical mass.

E. The regulation of the land disposal of byproduct, source, or special nuclear waste materials received from other persons; F. The evaluation of radiation safety information on sealed sources or devices.

containing byproduct, source, or special nuclear materials and the registration of the sealed sources or devices for distribution, as provided for in regulations or orders of the Commission.

ARTICLE ll A. This Agreement does not provide for discontinuance of any authority and the Commission shall retain authority and responsibility with respect to:

'If the State / Commonwealth chooses not to regulate all categories of materiallisted in Article I, those categories where NRC will retain authority should be listed in Article ll, A.

ii

', , a

1. The regulation of the construction and operation of any production or utilization facility or any uranium enrichment facility;

2. The regulation of the export from or import into the United States of byproduct, source, or special nuclear material, or of any production or utilization facility;

3. The regulation of the disposalinto the ocean or sea of byproduct, source, or special nuclear materials waste as defined in the regulations or orders of the Commission;

4. The regulation of the disposal of such other byproduct, source, or special nuclear material as the Commission from time to time determines by regulation or order should, because of the hazards or potential hazards thereof, not be so disposed without a license from the Commission:

5. The evaluation of radiation safety information on sealed sources or devices contrining byproduct, source, or special nuclear materials and the recintration of the sealed sources or devices for distribution, as provided for in regulations or orders of the Commission.'

B.8 Notwithstanding this Agreement, the Commission retains the following authorities pertaining to byproduct material as defined in Section 11e.(2) of the Atomic Energy Act:

1. Prior to the termination of a State / Commonwealth license for such byproduct material, or for any activity that results in the production of such material, the Commission shall have made a determination that all applicable standards and requirements pertaining to such material have been met.

2. The Commission reserves the authority to establish minimum standards governing reclamation, long term surveillance or maintenance, and ownership of such byproduct material and of land used as a disposal site for such material. Such reserved authority includes:

a. The authority to establish terms and conditions as the Commission determines necessary to assure that, prior to termination of any license for such byproduct material, or for any activity that results in the production of such material, the licensee shall comply with decontamination, decommissioning, and reclamation standards prescribed by the Commission; and with ownership requirements for such materials and its disposal site;

' include only if the State is not authorized to conduct sealed source and device reviews for purposes of registration for distribution.

' Article ll.B. is included in the agreement only if the State is authorized to regulate 11e.(2) byproduct material.

iii

a

b. The authority to require that prior to termination of any license for such byproduct material or for any activity that results in the production of such material, title to such byproduct material and its disposal site be transferred to the United States or the State / Commonwealth at the option of the State / Commonwealth (provided such option is exercised prior to termination of the license);

c. The authority to permit use of the surface or subsurface estates, or both, of the land transferred to the United States or a State / Commonwealth pursue.nt to paragraph 2.b. in this section in a manner consistent with the provisions of the Uranium Mill Tailings Radiation Control Act of 1978, provided that the Commission determines that such use would net endanger public health, safety, welfare, or the environment;

d. The authority to require, in the case of a license for any activity that produces such byproduct material (which license was in effect on November 8,1981), transfer of land and material pursuant to paragraph 2.b. in this section taking into consideration the status of such materia l and land and interests therein, and the ability of the licensee to transfer title and custody thereof to the United States or a State / Commonwealth;

e. The authority to require the Secretary of'the Department of Energy, other Federal agency, or State / Commonwealth, whichever has custody of such byproduct material and its disposal site, to undertake such monitoring, maintenance, and emergency measures as are necessary to protect public health and safety, and other actions as the Commission deems necessary; and

f. The authority to enter into arrangements as may be appropriate to assure Federal long term surveillance or maintenance of such byproduct material and its disposal site on land held in trust by the United States for any indian Tribe or land owned by an Indian Tribe and subject to a restriction against alienation imposed by the United States.

ARTICLE lil' With the exception of those activities identified in Article ll.A.1 through 4, this Agreement may be amended, upon application by the State / Commonwealth and approval by the Commission, to include one or more of the additional activities specified in Article ll, paragraphs (those activities not included in the agreement), whereby the State / Commonwealth may then exert regulatory authority and responsibility with respect to those activities.

Ar ICLE IV

• Delete this Article and renumber the remaining articles if the State / Commonwealth assumes authority over all categories of materials in Article ll, iv

'O Notwithstanding this Agreement, the Commission may from time to time by rule, regulation, or order, require that the manuf acturer, processor, or producer of any equipment, device, commodity, or other product containing source, byproduct, or special nuclear material shall not transfer possession or control of such product except pursuant to a license or an exemption from licensing issued by the Commission.

ARTICLE V This Agreement shall not affect the authority of the Commission under Subsection 1610 or 1611 of the Act to issue rules, regulations, or orders to protect the common defense and security, to protect restricted data, or to guard against the loss or diversion of special nuclear material.

ARTICLE VI The Commission will cooperate with the State / Commonwealth and other Agreement States in the formulation of standards and regulatory programs of the State and the Commission for protection against hazards of radiation and to assure that Commission and State / Commonwealth programs for protection against hazards of radiation will be coordinated and compatible. The State / Commonwealth agrees to cooperate with the Commission and other Agreement States in the formulation of standards and regulatory programs of the State / Commonwealth and the Commission for protection against hazards of radiation and to assure that the State / Commonwealth's program will continue to be compatible with the program of the Commission for the regulation of materials covered by this Agreement.

The State / Commonwealth and the Commission agree to keep each other informed of proposed changes in their respective rules and regulations, and to provide each other the opportunity for early and substantive contribution to the proposed changes.

The State / Commonwealth and the Commission agree to keep each other informed of events, accidents, and licensee performance that may have generic implication or otherwise be of regulatory interest.

ARTICLE y2 The Commission and the State / Commonwealth agree that it is desirable to provide reciprocal recognition of licenses for the materials listed in Article Ilicensed by the other party or by any other Agreement State. Accordingly, the Commission and the State / Commonwealth agree to develop appropriate rules, regulations, and procedures by which such reciprocity will be accorded.

ARTICLE YEl The Commission, upon its own initiative after reasonable notice and opportunity for hearing to the State / Commonwealth, or upon request of the Governor of the State / Commonwealth, may terminate or suspend all or part of this agreement and reassert the licensing and regulatory authority vested in it under the Act if the Commission finds that (1) such termination or suspension is required to protect public health and safety, or (2) the State / Commonwealth has not complied with one or more of the requirements of Section 274 of the Act. The Commission may also, pursuant to Section 274j of the Act, v

5 e'

temporarily suspend all or part of this agreement if,in the judgment of the Commission, an emergency situation exists requiring immediate action to protect public health and safety and the State / Commonwealth has failed to take necessary steps. The Commission shall periodically review actiont_taken by the State / Commonwealth under this Agreement to ensure compliance with Section 274 of the Act which requires a State / Commonwealth program to be adequate to protect public health and safety with respect to the materials covered by this Agreement and to be compatible with the Commission's program.

ARTICLE lh' in the licensing and regulation of byproduct material as defined in Section 11e.(2) of the Act, or of any activity which results in production of such material, the State / Commonwealth shall comply with the provisions of Section 274o of the Act. If in such licensing and regulation, the State / Commonwealth requires financial surety arrangements for reclamation or long term surveillance and maintenance of such material,-

A. The total amount of funds the State / Commonwealth collects for such purposes shall be transferred to the United States if custody of such material and its disposal site is transferred to the United States upon termination of the State / Commonwealth license for such material or any activity which results in the production of such material. Such funds include, but are not limited to, sums collected for long term surveillance or maintenance. Such funds do not, however, include monies hold as surety where no def ault has occurred and the reclamation or other bonded activity has been performed; and B. Such surety or other financial requirements must be sufficient to ensure compliance with those standards established by the Commission pertaining to bonds, sureties, and financial arrangements to ensure adequate reclamation and long-term management of such byproduct material and its disposal site.

ARTICLE X This Agreement shall become effective on [date), and shall remain in effect unless and until such time as it is terminated pursuant to Article Vill.

Done at [ City, State) this [date) day of [ month), [ year).

FOR THE UNITED STATES NUCLEAR REGULATORY COMMISSION

. Chairman FOR THE STATE / COMMONWEALTH OF

, Governor

'Use Article IX only if the State is authorized to regulate 11e.(2) byproduct material, vi I

~$.

e ANALYSIS OF COMMENTS ON PROPOSED MANAGEMENT DIRECTIVE 5.8

" PROPOSED 274b AGREEMENTS WITH STATES" INTRODUCTION On November 15,1996, the draft Management Dire'etive (MD) 5.8, " Proposed 274b Agreements With States" was transmitted to all Agreement States, Massachusetts, Ohio, Oklahoma and Pennsylvania (SP 96117).

Twelve comment letters from Agreement State staff were received. The list of commentors is as follows:

1.- Aubrey Godwin, Arizona

2. Robert Ouillin, Colorado

3. William Passetti, Florida

4. Thomas Hill, Georgia

5. Steven Collins, Illinois

6. William Spell, Louisiana

7. Robert Schell, Maine

8. Diane Tefft, New Hampshire

9. Rita Aldrich, New York Department of Labor

10. Michael Page, Tennessee

11. Richard Ratliff, Texas

12. Terry Fraztee, Washington The comments received were summarized and grouped into the following five areas:

Phased Agreement Concept Changes to MD 5.8 Changes to Handbook 5.8 Changes to Standard Agreement Miscellaneous This analysis contains the summary of comments, responses and rationale for disposition.

A brief description of the commenta responses, and their disposition follows:

PHASED /4REEMENT CONCEPT COMMENT Eight states did not support the concept of phased agreement. Commentors pointed to a variety of concerns with this approach. These concerns included the need for multiple program funding requests to State legislatures, assessment of licensee fees, staffing levels, staff training, inspection and licensing coordination between the State and NRC, and the impacts of IMPEP reviews on a phased program. Four commentors questioned whether 4 NRC has the legal authority to phase implementation of the Agreement. Four commentors I supported the concept with comments.

1

o

RESPONSE

The concept of a phased agreement was incorporated into the draft Policy Statement on Principles and Policy for the Agreement State Program. The draft Policy Statement was published in the Federal Register on August 5,1994 (59 FR 40058) for public comment, in response to the solicitation of public comments, fifteen comment letters were received.

No comments were received on the phased agreement concept. At the time the draft policy was published, staff believed that a formal phased implementation process would be advantageous to both NRC and an Agreement State. The advantages were believed to be orderly transition of licensed activities to the State, identification of State's program areas requiring additional guidance from NRC before the State assumed full responsibility and an opportunity for an Agreement State to gain experi7nce with its program prior to having full responsibility. MD 5.8 and Handbook 5.8 were developed as implementing procedures for phased implementation.

Staff believes that recent experience gained since 1994 in the negotiation of the Massachusetts Agreement has provided assurance that new Agreement States will be fully capable of effectively regulating even the most complex licensees upon the effective date of a new Agreement. Thus, staff believes it is not necessary to have phased implementation.

DISPOSITION As a result of these comments, NRC MD 5.8 and Handbook 5.8 were revised to eliminate the phased Agreement concept. The phased agreement concept was removed from the

• Statement of Principles and Policy for the Agreement State Program."

COMMENT Nine commentors stated that if NRC insisted on a phased agreement approach, in light of the opposition, a phased agreement should be in place only at the request of the State.

RESPONSE

Statf believes that given the validity of comments in opposition to phased implementation of the Policy that the voluntary phased implementation of agreements is not necessary.

Staff also believes that few,if any, States seeking new agreements would request a phased agreement.

DISPOSITION NRC is revising MD 5.8, to eliminate the phased agreement concept. The phased agreemera concept will be removed from the " Statement of Principles and Policy for the Agreement State Program." In addition, NRC will not implement an option for phased agreements in the " Statement of Principles and Policy for the Agreement State Program."

2 l

I

CHANGES TO MANAGEMENT DIRECTIVE 5.8 Six commentors recommended that in MD 5.8 03 (035)(a), the Regbnal Administrators coordination responsibilities should be revised to include coordination on contaminated or potentially contaminated sites and decommissioning records that would be transferred when the agreement is effective.

RESPONSE

The staff agrees with the comment.

DISPOSITION The MD was revised and MD 5.8 03 (035), " Regional Administrators," became MD 5.8 03 (036). In addition, this section was revised to include coordination on contaminated or potentially contaminated sites and decommissioning records that would be transferred when the agreement is effective, paragraph MD 5.8 (036) (e).

COMMENT One commentor remarked that in MD 5.8 03 (035)(b), that it is important for a Stato to have opportunity to interact with the Regions for both licensing reviews and inspections prior to the agreement.

RESPONSE

The staff agrees with the comment.

DISPOSITION MD 5.8 03 (035)(b) has been revised to remove the reference to initial phase and include an opportunity for the State to interet with the Rogion for both licensing reviews and inspections prior to the agreement.

CHANGES TO HANDBOOK 5.8 COMMENT Five commentors stated that the fir *,t sentence in the Overview (A) is misleading. The commentors stated that the senten,:e implies that it is a discretionary NRC policy to eriter into agreements.

RESPONSE

Staff agrees that Sectioa 2 74b of-the Atomic Energy Act, as amended, says that the Commission shall enter ieto agreements with the States once the referenced findings are made and that this is not a discretionary policy.

3

.' ,., 3 I DISPOSITION The first sentence was revised to remove the reference to "the policy of the NRC is."

COMMENT One commentor recommended that is should be a prerequisite for Regional Offices to invite inspectors from the State seeking an agreement to accompany regional staff on inspections prior to the agreement.

RESPONSE

The staff believes that every effort is taken to extend an invitation to the State to accompany regional staff and that the language B.2.a in Handbook 5.8 is clear.

DISPOSITION To emphasize this responsibility, this text was m'oved from the handbook to the

" Organizational Responsibilities and Delegations of Authority" section of MD 5.8 03, and was inserted at 5.8-036, (fl.

COMMENT Seven States commented that NRC should ensure that there is no licensing and inspection backlogs to be transferred to a State when the agreement becomes effective instead of the text "as small as possible" in Handbook 5.8 (B)(2)(c).

RESPONSE

Previous text stated that the backlogs in licensing and inspection would be as small as possible it is the staff's intention that there be no backlog in either licensing or inspecticm to the extent practicable exist at the time the Agreement becomes effective, it is imposs)ble to eliminate alllicensing backlogs, since some license action requests may be received by the NRC Regional Office shortly in advance of agreement signing.

DISPOSITION Text in Handbook 5.8 (B)(2)(c) was revised to state that to the extent practicable, that no backlogs would exist. In addition, this text was moved to the " Organizational Responsibilities and Delegations of Authority" section of MD 5.8, and was inserted at 5.8-036, th).

CHANGES TO STANDARD AGREEMENT COMMENT Ten of the 14 commentors opposed the language modifications in the first paragraph of Article VI of _the Standard Agreement, which removed the sentence that NRC would use its 4

.' .t *O bet.t efforts to coordinate with the Status and removed the best effort clause from the State's commitment. Several states remarked that eliminating the sentence found in most agreements requiring NRC to use it best efforts to cooperate with the State / Commonwealth puts the States in a role that is subserv.ent to the NRC. Those commenting believe that this provision is the basis for the NRC and State mutual cooperation. Five States indicated that these provisions should not just be dismissed because the language implies equality between the Agreement States and NRC. One state commented that removal of the phrase "best efforts" implied coercion on the part of NRC.

RESPONSE

lt was not the staff intention to remove the NRC commitment to cooperate with the State / Commonwealth in the Standard agaement. It was the staff's intention to remove the "best effort" phrase, since it is difficult to define, and to clarify the langungo that both NRC and State / Commonwealth will be cooperative and will keep each other inform. The staff believe this lu a stronger commitment from both NRC and the State / Commonwealth.

DISPOSITION An adGnional factual sentence, without qualification, was placed in Article IV addressing NRC's commitment to cooperate with the State / Commonwealth, similar to the commitment from the State / Commonwealth. The phrase "best efforts" was not insert back into the language of the paragraph. The phrase "best efforts" was removed from Section E of the

" Principles and Policy for the Agreement State Program" in the sentence regarding NRC and Agreement States commitment to keep each other Informed.

COMMENT Four commentors objected to the last paragraph, Article VI, which specified which reportable events *n State / Commonwealth would report to NRC, One State remarked that it was unaware 0 9y situation that required that level of detail. Two States remarked 4

that reporting sn a voluntary basis was appropriate ano should be continued as long as it could be shown to be of use. One State remarked that reporte would change over time or if it was found that they were no longer of use, the Stete would be required to amend its agreement.

RESPONCE The staff believes that a comrnitment to keep the NRC informed, especially where there are generic implications is important. The reporting of incidents has been included in the

" Policy Statement on Adequacy and Compatibility of Agreement State Programs" as a matter of compatibility and will not need to be necessary in the Standard Agreement.

DISPOSITION The sentence on the reporting of immediately reportable, 24 hour2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> reportable, and 30-day reportable events has been deleted.

5

- - - - . _ - - - - - _ _ . . - _ - _ - - . . ~ . . - . - - - - - -

, i

, e, a v

COMMENT l One commentor asked whether the Standard Agreement, when approved would apply to all Agreement States or would there be effort to grandfather existing Agreements. The commentor stated that new Agreement States enould not be treated differently from existing Agreement States.

RESPONSE

The staff has not addressed the issue of revising existing agreements when a standard agreernent is approved. The staff is currently evaluating this issue and will coordinate its efforts with and request input from the Agreement States.

DISPOSITION 3

No changes were made as a result of this comment.

MISCELLANEOUS COMMENT Four commentors expressed concerns that MD 5.8 and its handbook were sent only to the Agreement States and not to the non agreement states that would be affected by these changes.

RESPONSE

MD 5.8 and Handbook 5.8 were sent to those non Agreement States, Ohio, Massachusetts, Oklahoma and Pennsylvanla, whose Governors have expressed interest in becoming an Agreement State. The staff believes that those States presently negotiating agreements are the most affected by these proposed procedures. These States were notified.

DISPOSITION 1

No changes were made as a result of this comment.

COMMENT Two commentors expressed the view that Section 274 of the Atomic Energy Act does not require that compatibility be maintained af ter an agreement is effective. One commentor objected to the language in Article Vil where NRC could terminate or suspend an agreement if the State / Commonwealth has not complied with one or more of the requirements of Sect.lon 274 that could include compatibility.

6

, , ., . 9 v.

RESPONSE

The staff does not agree with this interpretation of the AEA. Both Sections 274d.(2) and 274g. Indicate that the Commission must find a State program to be compatible with that of NRC's in order to enter into a Section 274b. agreement with the State. Subsection 274g. authorizes and directs the Commission to cooperate with the States in the formulation of radiation protection standards "to assure that the State and Commission programs for the protection against hazards of radiation will be coordinated and compatible." This provision demonstrates Congress' intention that the compatibility between the NRC's and Agreement State programs should be maintained on a continuing basis.

Section 274),(1) calls on the Commission to suspend or terminate an Agreement State's program if "the State has not complied with one or more of the requirements" of the Section 274. The Commission believes that this phrase "one or more of the requirements," encompasses all requirements of Section 274, including the requirement for compatibility.

Finally, the lack of a continuing compatibility requirement would lead to some incongruous results Under subsection 274d.(2), the Commission is authorized to enter into an agreement with a State if the Commission makes both requisite findings that the State program is compatible with the NRC's program and adequate to protect public health and safety. Absent a continuing compatibility requirement, an Agreement State could divert from having a compatible program the day af ter any agreement is signed with NRC. This would render the Commission's initial compatibility finding required by Section 274d.(2) meaningless.

DISPOSITION:

No changes were made as a result of this comment.

7