SECY-19-0058, VR-SECY-19-0058: Proposed Agreement Between the State of Vermont and the Commission Pursuant to Section 274 of the Atomic Energy Act of 1954, as Amended

VR-SECY-19-0058: Proposed Agreement Between the State of Vermont and the Commission Pursuant to Section 274 of the Atomic Energy Act of 1954, as Amended

ML19170A055
Person / Time
Issue date:	06/17/2019
From:	Jeff Baran, Annie Caputo, Kristine Svinicki, Annette Vietti-Cook, David Wright NRC/OCM, NRC/SECY
To:
References
SECY-19-0058 VR-SECY-19-0058
Download: ML19170A055 (84)

Text

UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON , D.C. 20555-0001 June 17, 2019 SECRETARY COMMISSION VOTING RECORD DECISION ITEM : SECY-19-0058 TITLE: PROPOSED AGREEMENT BETWEEN THE STATE OF VERMONT AND THE COMMISSION PURSUANT TO SECTION 274 OF THE ATOMIC ENERGY ACT OF 1954, AS AMENDED The Commission acted on the subject paper as recorded in the Staff Requirements Memorandum (SRM) of June 17, 2019.

This Record contains a summary of voting on this matter together with the individual vote sheets, views and comments of the Com Annette L. Vietti-Cook Secretary of the Commission

Enclosures:

1. Voting Summary

2. Commissioner Vote Sheets cc: Chairman Svinicki Commissioner Baran Commissioner Caputo Commissioner Wright OGC EDO PDR

VOTING

SUMMARY

- SECY-19-0058 RECORDED VOTES NOT APPROVED DISAPPROVED ABSTAIN PARTICIPATING COMMENTS DATE Chrm . Svinicki X X 06/07/19 Cmr. Baran X X 06/05/19 Cmr. Caputo X X 06/06/19 Cmr. Wright X X 06/06/19

POLICY ISSUE NOTATION VOTE RESPONSE SHEET TO: Annette Vietti-Cook, Secretary FROM: CHAIRMAN SVINICKI

SUBJECT:

SECY-19-0058: Proposed Agreement Between the State of Vermont and the Commission Pursuant to Section 274 of the Atomic Energy Act of 1954, as Amended Approved XX Disapproved _ Abstain Not Participating_

Comments: Below XX Attached XX None I approve publication of the draft Federal Register notice, including the summary of the draft staff assessment and the proposed Agreement (Enclosure 1), subject to the attached edits. I also approve the staff's draft assessment of Vermont's regulatory program (Enclosure 2).

S NATURE DATE 06/:; /19 Entered on "STARS" Yes / No

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NUCLEAR REGULATORY COMMISSION

[NRC-2019-0114]

State of Vermont: NRC Staff Assessment of a Proposed Agreement Between the Nuclear Regulatory Commission and the State of Vermont AGENCY: Nuclear Regulatory Commission.

ACTION: Proposed state agreement; request for comment.

SUMMARY

By letter dated April 11 , 2019, Governor Philip Scott of the State of Vermont requested that the U. S. Nuclear Regulatory Commission (NRC or Commission) enter into an Agreement with the State of Vermont as authorized by Section 27 4b. of the Atomic Energy Act of 1954, as amended (AEA).

Under the proposed Agreement, the Commission would discontinue, and the State of Vermont would assume, regulatory authority over certain types of byproduct materials as defined in the AEA, source material, and special nuclear material in quantities not sufficient to form a critical mass.

As required by Section 274e. of the AEA, the NRC is publishing the proposed Agreement for public comment. The NRC is also publishing the summary of a draft assessment by the NRC staff of the State of Vermont's regulatory program. Comments are requested on the proposed Agreement, especiallyand its effect on public 11ealth and safety. Comments are also requested on the draft staff assessment, the adequacy of the State of Vermont's program, and the State's program staff, as discussed in this notice.

DATES: Submit comments by [INSERT DATE 30 DAYS AFTER DATE OF INITIAL PUBLICATION IN THE FEDERAL REGISTER] . Comments received after this date will

be considered if it is practical to do so, but the Commission is able to ensure consideration only for comments received before this date.

ADDRESSES: You may submit comments by the following method :

• Federal Rulemaking Web Site: Go to https://www.regulations.gov and search for Docket ID NRC-2019-0114. Address questions about NRC dockets in Regulations.gov to Jennifer Borges; telephone: 301-287-9127; e-mail:

Jennifer.Borges@nrc.gov. For technical questions, contact the individuals listed in the FOR FURTHER INFORMATION CONTACT section of this document.

For additional direction on obtaining information and submitting comments, see "Obtaining Information and Submitting Comments" in the SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Duncan White, Office of Nuclear Material Safety and Safeguards, telephone: 301-415-2598, e-mail: Duncan.White@nrc.gov of the U.S. Nuclear Regulatory Commission , Washington , DC 20555-0001 .

SUPPLEMENTARY INFORMATION:

I. Obtaining Information and Submitting Comments A Obtaining Information Please refer to Docket ID NRC-2019-0114 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:

• Federal Rulemaking Web Site: Go to https://www.regulations.gov and search for Docket ID NRC-2019-0114.

• NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly-available documents online in the ADAMS Public Documents collection at https://www.nrc.gov/reading-rm/adams.html. To begin the 2

search , select "ADAMS Public Documents" and then select "Begin Web-based ADAMS Search." For problems with ADAMS, please contact the NRC's Public Document Room (PDR) reference staff at 1-800-397-4209, at 301-415-4737, or by e-mail to pdr.resource@nrc.gov. The final application for an AEA Section 27 4 Agreement from the State of Vermont, the draft assessment of the proposed Vermont program, and additional related correspondence between the NRC and the State for the regulation of agreement materials are available in ADAMS under Accession Nos. ML19107A432, ML19114A092, ML19115A214, ML19102A130 and ML19113A279.

• NRC's PDR: You may examine and purchase copies of public documents at the NRC's PDR, Room 01-F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.

B. Submitting Comments Please include Docket ID NRC-2019-0114 in your comment submission . The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at https://www.regulations.gov as well as enter the comment submissions into ADAMS. The NRC does not routinely edit comment submissions to remove identifying or contact information.

If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS .

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II. Additional Information on Agreements entered under Section 274 of the AEA Under the proposed Agreement, the NRC would discontinue its authority over 36 licenses and would transfer its regulatory authority over those licenses to the State of Vermont. The NRC periodically reviews the performance of the Agreement States to assure compliance with the provisions of Section 27 4.

Section 274e. of the AEA requires that the terms of the proposed Agreement (in Appendix A) be published in the Federal Register for public comment once each week for four consecutive weeks. This notice is being published in fulfillment of that requirement.

Ill. Proposed Agreement with the State of Vermont

Background

(a) Section 27 4b. of the AEA provides the mechanism for a State to assume arui-the NRG to discontinue regulatory authority from the NRC over certain radioactive materials and activities that involve use of these materials. The radioactive materials, sometimes referred to as "Agreement materials," are byproduct materials as defined in Sections 11 e.( 1 ), 11 e.(2), 11 e.(3), and 11 e.( 4) of the AEA; source material as defined in Section 11 z. of the AEA; and special nuclear material as defined in Section 11 aa. of the AEA, restricted to quantities not sufficient to form a critical mass.

The radioactive materials and activities (which together are usually referred to as the "categories of materials") that the State of Vermont requests authority over are:

(1) The possession and use of byproduct materials as defined in Section 11e.(1) of the Act; (2) The possession and use of byproduct materials as defined in Section 11 e.(3) of the Act; (3) The possessio~ and use of byproduct materials as defined in Section 4

11 e.(4) of the Act; (4) The possession and use of source materials; and (5) The possession and use of special nuclear materials in quantities not sufficient to form a critical mass.

(b) The proposed Agreement contains articles that:

i) , Specify the materials and activities over which authority is disoontinuedtransferred ;

ii) Specify the materials and activities over which the Commission will retain regulatory authority; iii) Continue the authority of the Commission to safeguard special nuclear material, protect restricted data, and protect common defense and security; iv) Commit the State of Vermont and the NRC to exchange information as necessary to maintain coordinated and compatible programs; v) Provide for the reciprocal recognition of licenses; vi) Provide for the suspension or termination of the Agreement; and vii) Specify the effective date of the proposed Agreement.

The Commission reserves the option to modify the terms of the proposed Agreement in response to comments, to correct errors, and to make editorial changes.

The final text of the proposed Agreement, with the effective date, will be published after the Agreement is approved by the Commission and signed by the NRC Chairman and the Governor of Vermont.

(c) The regulatory program is authorized by law under the Vermont Statute~ AGt_

Annotated (VT. STAT. ANN.) title 18, (VSA) title 18, §§ 1651 through 1657, which provides the Governor with the authority to enter into an Agreement with the Commission. The 5

State of Vermont law contains provisions for the orderly transfer of regulatory authority over affected licensees from the NRC to the State. In a letter dated April 11, 2019, Governor Scott certified that the State of Vermont has a program for the control of radiation hazards that is adequate to protect public health and safety within the State of Vermont for the materials and activities specified in the proposed Agreement, and that the State desires to assume regulatory responsibility for these materials and activities.

After the effective date of the Agreement, licenses issued by the NRC would continue in effect as State of Vermont licenses until the licenses expire or are replaced by State-issued licenses.

(d) Based on tihe draft staff assessment, the NRG staff finds that the Vermont Department of Health's, Office of Radiological Health'sRadioactive Materials Program is adequate to protect public health and safety and is compatible with the NRC's regulatory program for the regulation of Agreement materials. However, it should be noted thatthe NRC staff identified several sections of the Mal-Vermont Radioactive Materials R[egulations that were either not compatible or needed additional editorial changes. By letter dated May 10, 2019, the NRC staff described these compatibility and editorial issues, and requested that the Vermont Department of Health ~commit within 60 days with a commitment to make the described regulatory changes as soon as practicable (ADAMS Accession No. ML19102A160). The resolution of these comments does not interfere with the NRC staff's processing of Vermont's Agreement State Application.

Summary of the Draft NRC Staff Assessment of the State of Vermont's Program for the Regulation of Agreement Materials The NRC staff has examined the State of Vermont's request for an Agreement with respect to the ability of the State's radiation control program to regulate Agreement materials. The examination was based on the Commission's Policy Statement, "Criteria 6

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 at 48 FR 33376 , July 21, 1983) (Policy Statement), and the Office of Nuclear Material Safety and Safeguards Procedure SA-700, "Processing an Agreement" (available at https://scp.nrc.gov/procedures/sa700.pdf and https://scp.nrc.qov/procedures/sa700 hb.pdf). The Policy Statement has 28 criteria that serve as the basis for the NRC staff's assessment of the State of Vermont's request for an Agreement. The following section will reference the appropriate criteria numbers from the Policy Statement that apply to each section.

(a) Organization and Personnel. The NRC staff reviewed these areas under Criteria 1, 2, 20, and 24 in the draft assessment. The State of Vermont's proposed Agreement materials program for the regulation of radioactive materials is called the "Radioactive Materials Program,._." The Radioactive Materials Program and will be located within the existing Office of Radiological Health of the Vermont Department of Health.

The educational requirements for the Radioactive Materials Program staff members are specified in the State of Vermont's personnel position descriptions and meet the NRC criteria with respect to formal education or combined education and experience requirements. All current staff members hold a Master's Degree in either environmental science or radiolog ic and imaging sciences. All have training and work experience in radiation protection. Supervisory level staff have at least 20 years of working experience in rad iation protection.

The State of Vermont performed an analysis of the expected workload under the proposed Agreement. Based on the NRC staff review of the State of Vermont's analysis, the State has an adequate number of staff to regulate radioactive materials 7

under the terms of the proposed Agreement. The State of Vermont will employ the equivalent of 1.25 full-time equivalent professional and technical staff to support the Radiological Materials Program.

The State of Vermont has indicated that the Radioactive Materials Program has an adequate number of trained and qualified staff in place. The State of Vermont has developed qualification procedures for license reviewers and inspectors that are similar to the NRC's procedures. The Radioactive Materials Program staff has accompanied the NRC staff on inspections of NRC licensees in Vermont and participated in licensing training at NRC's Region I with Division of Nuclear Materials Safety staff. The Radioactive Materials Program staff is also actively supplementing #letf.-its experience through direct meetings, discussions, and facility visits with the NRC licensees in the State of Vermont and through self-study, in-house training, and formal training.

Overall, the NRC staff concluded that the Radioactive Materials Program staff identified by the State of Vermont to participate in the Agreement materials program ha.§.ve sufficient knowledge and experience in radiation protection , the use of radioactive materials, the standards for the evaluation of applications for licensing , and the techniques of inspecting licensed users of Agreement materials.

(b) Legislation and Regulations. The NRC staff reviewed these areas under Criteria 1-15, 17, 19, and 21-28 in the draft staff assessment. The Vermont Statutes Annotated, VT. STAT. ANN. tit. 18, VSA-§§ 1651 through 1657 provide the authority to enter into the Agreement and establish the Vermont Department of Health as the lead agency for the State's Radioactive Materials Program . The Department has the requisite authority to promulgate regulations under the Vermont Statute.§. Annotated, VT.

STAT. ANN. tit. 18, "JJ..SA §§ 1653(b)(1) for protection against radiation. The Vermont Statutes Annotated, VL....STAT. ANN. tit. .1..§.._§§ 1651 through 1657 also provide the Radioactive Materials Program the authority to issue licensegs and orders; conduct 8

inspections; and enforce compliance with regulations, license conditions, and orders.

The Vermont Statute2 Annotated, VT. STAT. ANN. tit. 18, VSA §§ 1654 requires licensees to provide access to inspectors.

The NRC staff verified that the State of Vermont adopted by reference the relevant NRC regulations in parts 19, 20, 30 , 31 , 32, 33, 34, 35, 36, 37, 39, 40, 61 , 70, 71 , and 150 of title 10 of the Code of Federal Regulations (10 CFR}; into the Vermont Radioactive Materials Rule, Chapter 6, Subchapter 5. During its review, the NRC staff identified several sections of the final Vermont Radioactive Materials Rregulations that are not compatible or need editorial changes. By letter dated May 10, 2019, the NRC staff described these compatibility and editorial issues, and requested that the Vermont Department of Health commit @Qjy_within 60 days with a commitment to make the described regulatory changes as soon as practicable. The resolution of these comments does not interfere with the NRC staff's processing of Vermont's Agreement State Application . Therefore , on the proposed effective date of the Agreement, the NRC anticipates that the State of Vermont will have committed to adopting an adequate and compatible set of radiation protection regulations that apply to byproduct materials, source material.I. and special nuclear material in quantities not sufficient to form a critical mass. The NRC staff also verified that the State of Vermont will not attempt to enforce regulatory matters reserved to the Commission.

(c) Storage and Disposal. The NRC staff reviewed these areas under Criteria 8, 9a, and 11 in the draft staff assessment. The State of Vermont has adopted NRC compatible requirements for the handling and storage of radioactive material , including regulations equivalent to the applicable standards contained in 10 CFR parts 20, which address the general requirements for waste disposal, and part 61, which addresses waste classification and form.:., and both of which These regulations are applicable to all licensees covered under this proposed Agreement.

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(d) Transportation of Radioactive Material. The NRC staff reviewed this area under Criteria 10 in the draft staff assessment. The State of Vermont has adopted compatible regulations to the NRC regulations in 10 CFR part 71 . Part 71 contains the requirements licensees must follow when preparing packages containing radioactive material for transport. Part 71 also contains requirements related to the licensing of packaging for use in transporting radioactive materials.

(e) Recordkeeping and Incident Reporting. The NRC staff reviewed this area under Criteria 1 and 11 in the draft staff assessment. The State of Vermont has adopted compatible regulations to the sections of the NRC regulations that specify requirements for licensees to keep records and to report incidents or accidents involving the State's regulated Agreement materials.

(f) Evaluation of License Applications. The NRC staff reviewed this area under Criteria 1, 7, 8, 9a, 13, 14, 15, 20, 23 and 25 in the draft staff assessment. The State of Vermont has adopted compatible regulations to the NRC regulations that specify the requirements to obtain a license to possess or use radioactive materials. The State of Vermont has also developed licensing procedures and adopted NRC licensing guides for specific uses of radioactive material for use by the program staff when evaluating license applications.

(g) Inspections and Enforcement. The NRC staff reviewed these areas under Criteria 1, 16, 18, 19, and 23 in the draft staff assessment. The State of Vermont has adopted a schedule providing for the inspection of licensees as frequently as, or more frequently than, the inspection schedule used by the NRC. The State of Vermont's Radioactive Materials Program has adopted procedures for the conduct of inspections, reporting of inspection findings, and reporting inspection results to the licensees.

Additionally, the State of Vermont has also adopted procedures for the enforcement of regulatory requirements.

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{h) Regulatory Administration. The NRC staff reviewed this area under Criterion 23 in the draft staff assessment. The State of Vermont is bound by requirements specified in its State law for rulemaking , issuing licenses, and taking enforcement actions. The State of Vermont has also adopted administrative procedures to assure fa ir and impartial treatment of license applicants. The State of Vermont law prescribes standards of ethical conduct for State employees.

(i) Cooperation with Other Agencies. The NRC staff reviewed this area under Criteria 25, 26, and 27 in the draft staff assessment. The State of Vermont law provides for the recognition of existing NRC and Agreement State licenses and the State has a process in place for the transition of active NRC licenses. Upon the effective date of the Agreement, all active NRC radioactive materials NRG-licenses issued to facilities in the State of Vermont will be recognized as Vermont Department of Health licenses.

The State of Vermont also provides for "timely renewal. " This provision affords the continuance of licenses for which an application for renewal has been filed more than 30 days prior to the date of expiration of the license. NRC licenses transferred while in timely renewal are included under the continuation provision.

The State of Vermont regulations, in Vermont Radioactive Materials Rule Chapter 6, Subchapter 5, which adopts NRC regulations 10 CFR §§ 30.12, 40.11 and 70.11 by reference, provide exemptions from the State's requirements for the NRC and the U.S. Department of Energy contractors or subcontractors; the exemptions must be authorized by law and determined not to endanger life or property and to otherwise be in the public interest. The proposed Agreement commits the State of Vermont to use its best efforts to cooperate with the NRC and the other Agreement States in the formulation of standards and regulatory programs for the protection against hazards of radiation , and to assure that the State's program will continue to be compatible with the Commission's program for the regulation of Agreement materials. The proposed 11

Agreement specifies the desirability of reciprocal recognition of licenses, and commits the Commission and the State of Vermont to use their best efforts to accord such reciprocity. The State of Vermont would be able to recognize the licenses of other jurisdictions by general license.

Staff Conclusion Section 274d. of the AEA provides that the Commission shall enter into an Agreement under Section 274b. with any State if:

(a) The Governor of thate State certifies that the State has a program for the control of radiation hazards adequate to protect the public health and safety with respect to the Agreement materials within the State.. and that the State desires to assume regulatory responsibility for the Agreement materials; and (b) The Commission finds that the State program is in accordance ~ith the requirements of Subsection 27 4o. and in all other respects compatible with the Commission's program for-tfie regulation of such materials, and that the State program is adequate to protect the public health and safety with respect to the materials covered by the proposed Agreement.

The NRC staff has reviewed the proposed Agreement, the certification of Vermont Governor Scott, and the supporting information provided by the Radioactive Materials Program of the Vermont Department of Health. Based upon this review, the NRC staff concludes that the State of Vermont Radioactive Materials Program satisfies the Section 274d. criteria as well as the criteria in the Commission's Policy Statement "Criteria for Guidance of States and NRC in Discontinuance of NRC Regulatory Authority and Assumption Thereof by States Through Agreement. " The NRC staff also concludes that the proposed State of Vermont program to regulate Agreement materials, as comprised of statutes, regulations, procedures, and staffing .. is compatible with the Commission's program .. and is adequate to protect the public health and safety with 12

respect to the materials covered by the proposed Agreement. Therefore, the proposed Agreement meets the requirements of Section 274 of the AEA.

Dated at Rockville, Maryland, this XX th day of June, 2019.

For the Nuclear Regulatory Commission.

Andrea L. Kock, Director, Division of Materials Safety, Security, State, and Tribal Programs, Office of Nuclear Material Safety and Safeguards 13

APPENDIX A AN AGREEMENT BETWEEN THE UNITED STATES NUCLEAR REGULATORY COMMISSION AND THE STATE OF VERMONT FOR THE DIS~ONTINUANCE OF CERTAIN COMMISSION REGULATORY AUTHORITY AND RESPONSIBILITY WITHIN THE STATE 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 27 4 of the Atomic Energy Act of 1954, as amended, 42 U.S.C. Section 2011 et seq. (hereinafter referred to as "the Act"), to enter into agreements with the Governor of the State of Vermont (hereinafter referred to as "the State") providing for discontinuance of the regulatory authority of the Commission within the State under Chapters 6, 7, and 8, and Section 161 of the Act with respect to byproduct materials as defined in Sections 11 e.( 1), (3),

and (4) of the Act, source materials, and special nuclear materials in quantities not sufficient to form a critical mass; and, WHEREAS, The Governor of the State of Vermont is authorized under 18 V.S.A. VT. STAT. ANN. tit. 18, § 1653 to enter into this Agreement with the Commission; and, WHEREAS, The Governor of the State of Vermont certified on April 11, 2019, that the State has a program for the control of radiation hazards adequate to protect the public health and safety with respect to the materials within the State covered by this Agreement, and that the State desires to assume regulatory responsibility for such materials; and, 14

WHEREAS, The Commission found on [date] that the program of the State of Vermont for the regulation of the materials covered by this Agreement is compatible with the Commission's program for the regulation of such materials and is adequate to protect the public health and safety; and, WHEREAS, The State of Vermont and the Commission recognize the desirability and importance of cooperation between the Commission and the State in the formulation of standards for protection against hazards of radiation and in assuring that State and Commission programs for protection against hazards of radiation will be coordinated and compatible; and, WHEREAS, The Commission and the State of Vermont recognize the desirability of the reciprocal 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 Act; NOW, THEREFORE, It is hereby agreed between the Commission and the Governor of Vermont acting on behalf of the State as follows:

ARTICLE I Subject to the exceptions provided in Articles II, IV, and V, the Commission shall discontinue, as of the effective date of this Agreement, the regulatory authority of the Commission in the State under Chapters 7 and 8, and Section 161 of the Act with respect to the following materials:

1. Byproduct material as defined in Section 11 e.( 1) of the Act;

2. Byproduct material as defined in Section 11 e.(3) of the Act; 15

3. Byproduct material as defined in Section 11 e.(4) of the Act;

4. Source material; and

5. Special nuclear material, in quantities not sufficient to form a critical mass.

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

A. The regulation of byproduct material as defined in Section 11 e.(2) of the Act; B. The regulation of the land disposal of byproduct, source, or special nuclear material received from other persons; C. The evaluation of radiation safety information on sealed sources or devices containing byproduct, source, or special nuclear material and the registration of the sealed sources or devices for distribution, as provided for in regulations or orders of the Commission ;

I D. The regulation of the construction, operation .. and decommissioning of any production or utilization facility or any uranium enrichment facility; E. 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; F. The regulation of the disposal into the ocean or sea of byproduct, source , or special nuclear material waste as defined in tAe-regulations or orders of the Commission ;

G. 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 to be so disposed without a license from the Commission ; and H. The regulation of activities not exempt from Commission regulation as stated in 10 CFR Part 150.

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ARTICLE Ill With the exception of those activities identified in Article II, paragraph.§ fetH:.-Q_through paragraph oightJ::i, this Agreement may be amended , upon application by the State and approval by the Commission to include one or more of the additional activities specified in Article II, paragraph.§ GA&-A through tAfeeC, whereby the State may then exert regulatory authority and responsibility with respect to those activities.

ARTICLE IV Notwithstanding this Agreement, the Commission may from time to time by rule, regulation, or order, require that the manufacturer, processor, or producer of any eqL,Jipment, 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 for licensing issued by the Commission.

ARTICLE V This Agreement shall not affect the authority of the Commission under Subsection 161 b. or 161 i. of the Act to issue rules, regulations, or orders to promoteteGt 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 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 programs for protection against hazards of radiation will be coordinated and compatible.

The State agrees to cooperate with the Commission and other Agreement States in the formulation of standards and regulatory programs of the State and the Commission for protection against the hazards of radiation and to assure that the State's program will 17

continue to be compatible with the program of the Commission for the regulation of materials covered by this Agreement.

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

ARTICLE VIII The Commission, upon its own initiative after reasonable notice and opportunity for hearing to the State or upon request of the Governor of Vermont, 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 the public health and safety, or (2) the State has not complied with one or more of the requirements of Section 27 4 of the Act.

The Commission may also, pursuant to Section 274j. of the Act, temporarily suspend all or part of this Agreement if, in the judgment of the Commission, an emergency situation exists involving Agreement material that requiresiR§ immediate action to protect public health and safety and the State has failed to take necessary steps to contain or 18

eliminate the danger. The Commission shall periodically review actions taken by the State under this Agreement to ensure compliance with Section 27 4 of the Act, which requires a State program to be adequate to protect the public health and safety with respect to the materials covered by this Agreement and to be compatible with the Commission's program .

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

Done at [location] this [date] day of [month] , 2019.

For the Nuclear Regulatory Commission.

Kristine L. Svinicki, Chairman Done at [location] this [date] day of [month] , 2019.

For the State of Vermont.

Philip B. Scott, Governor 19

POLICY ISSUE NOTATION VOTE RESPONSE SHEET TO: Annette Vietti-Cook, Secretary FROM: Commissioner Baran

SUBJECT:

SECY-19-0058: Proposed Agreement Between the State of Vermont and the Commission Pursuant to Section 27 4 of the Atomic Energy Act of 1954, as Amended Approved X Disapproved

- - Abstain - - Not Participating COMMENTS: Below Attached X None Entered in "STARS" Yes X ~ ATURE No '1/r/11 DATE

Commissioner Saran's Comments on SECY-19-0058, "Proposed Agreement between the State of Vermont and the Commission Pursuant to Section 274 of the Atomic Energy Act of 1954, as Amended" In this paper, the NRC staff recommends publishing the proposed NRC Agreement with the State of Vermont in the Federal Register for public comment. The proposed Agreement would provide for the state to assume regulatory authority over source material, specific types of byproduct material, and special nuclear material, in quantities not sufficient to form a critical mass.

In reaching its conclusion that Vermont's proposed program would be compatible with NRC's program and adequate to protect public health and safety, the NRC staff evaluated Vermont's proposed program against 28 criteria related to radiation protection standards, inspection, enforcement, personnel, administration, and other key aspects of an effective program. I found the staff's draft assessment to be thorough and its findings well-reasoned.

During its evaluation, the NRC staff identified a limited number of changes to Vermont's regulations that will be necessary for the state to be fully compatible with NRC's regulations.

The NRC staff anticipates that these changes will be made prior to the proposed effective date of the Agreement.

For these reasons, I approve publication of the draft Federal Register notice, subject to the attached edits.

[7590-01-P]

NUCLEAR REGULATORY COMMISSION

[NRC-2019-0114]

State of Vermont: NRC Staff Assessment of a Proposed Agreement Between the Nuclear Regulatory Commission and the State of Vermont JMB edits AGENCY: Nuclear Regulatory Commission.

ACTION: Proposed state agreement; request for comment.

SUMMARY

By letter dated April 11 , 2019, Governor Philip Scott of the State of Vermont requested that the U.S. Nuclear Regulatory Commission (NRC or Commission) enter into an Agreement with the State of Vermont as authorized by_

Section 27 4b of the Atomic Energy Act of 1954, as amended (AEA).

Under the proposed Agreement, the Commission would discontinue, and the State of Vermont would assume, regulatory authority over certain types of byproduct materials as defined in the AEA, source material, and special nuclear material in quantities not sufficient to form a critical mass.

As required by tAB* Section 27 4e of the AEA, the NRC is publishing the proposed Agreement for public comment. The NRC is also publishing the summary of a draft assessment by the NRC staff of the State of Vermont's regulatory program. Comments are requested on the proposed Agreement, especially and its effect on public health and safety. Comments are also requested on the draft staff assessment.

DATES: Submit comments by [INSERT DATE 30 DAYS AFTER DATE OF INITIAL PUBLICATION IN THE FEDERAL REGISTER] . Comments received after this date will be considered if it is practical to do so, but the Commission is able to ensure consideration only for comments received before this date.

ADDRESSES: You may submit comments by the following method:

• Federal Rulemaking Web Site: Go to http://www.requlations.gov and search for Docket ID NRC-2019-0114. Address questions about NRC dockets in Regulations .gov to Jennifer Borges; telephone: 301 -287-9127; e-mail:

Jennifer.Borges@nrc.gov. For technical questions, contact the individuals listed in the FOR FURTHER INFORMATION CONTACT section of this document.

For additional direction on obtaining information and submitting comments, see "Obtaining Information and Submitting Comments" in the SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Duncan White, Office of Nuclear Material Safety and Safeguards, telephone: 301-415-2598, e-mail: Duncan.White@nrc.gov of the U.S. Nuclear Regulatory Commission , Washington , DC 20555-0001 .

SUPPLEMENTARY INFORMATION:

I. Obtaining Information and Submitting Comments A. Obtaining Information Please refer to Docket ID NRC-2019-0114 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:

• Federal Rulemaking Web Site: Go to http://www.regulations.gov and search for Docket ID NRC-2019-0114.

• NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly-available documents online in the ADAMS Public Documents collection at http://www.nrc.gov/reading-rm/adams.html. To begin the search , select "ADAMS Public Documents" and then select "Begin Web-based ADAMS Search ." For problems with ADAMS , please contact the NRC's Public Document Room 2

(PDR) reference staff at 1-800-397-4209, at 301-415-4737, or by e-mail to pdr.resource@nrc.gov. The final application for an AEA Section 274 Agreement from the State of Vermont, the draft assessment of the proposed Vermont program , and additional related correspondence between the NRC and the State for the regulation of agreement materials are available in ADAMS under Accession Nos. ML19107A432, ML19114A092, ML19115A214, ML19102A130 and ML19113A279.

• NRC's PDR: You may examine and purchase copies of public documents at the NRC's PDR , Room 01-F21, One White Flint North , 11555 Rockville Pike, Rockville, Maryland 20852.

B. Submitting Comments Please include Docket ID NRC-2019-0114 in your comment submission. The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission . The NRC will post all comment submissions at http://www.regulations .gov as well as enter the comment submissions into ADAMS. The NRC does not routinely edit comment submissions to remove identifying or contact information .

If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission . Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS .

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II. Additional Information on Agreements entered under Section 274 of the AEA Under the proposed Agreement, the NRC would discontinue its authority over 36 licenses and would transfer its authority over those licenses to the State of Vermont.

The NRC periodically reviews the performance of the Agreement States to assure compliance with the provisions of Section 27 4.

Section 27 4e. of the AEA requires that the terms of the proposed Agreement (in Appendix A) be published in the Federal Register for public comment once each week for four consecutive weeks. This notice is being published in fulfillment of that requirement.

Ill. Proposed Agreement with the State of Vermont

Background

(a) Section 274b. of the AEA provides the mechanism for a State to assume and the NRC to discontinue regulatory authority over certain radioactive materials and activities that involve use of these materials. The radioactive materials, sometimes referred to as "Agreement materials, " are byproduct materials as defined in Sections 11 e.(1 ), 11e.(2), 11e.(3), and 11e.(4) of the AEA; source material as defined in Section 11 z. of the AEA; and special nuclear material as defined in Section 11 aa . of the AEA, restricted to quantities not sufficient to form a critical mass.

(b) The proposed Agreement contains articles that:

i) Specify the materials and activities over which authority is discontinued; ii) Specify the materials and activities over which the Commission will retain regulatory authority; iii) Continue the authority of the Commission to safeguard special nuclear material, protect restricted data, and protect common 4

defense and security; iv) Commit the State of Vermont and the NRC to exchange information as necessary to maintain coordinated and compatible programs; v) Provide for the reciprocal recognition of licenses; vi) Provide for the suspension or termination of the Agreement; and vii) Specify the effective date of the proposed Agreement.

The Commission reserves the option to modify the terms of the proposed Agreement in response to comments, to correct errors, and to make editorial changes.

The final text of the proposed Agreement, with the effective date, will be published after the Agreement is approved by the Commission and signed by the NRC Chairman and the Governor of Vermont.

(c) The regulatory program is authorized by law under the Vermont Statute }\ct (VSA) §§ 1651 through 1657, which provides the Governor with the authority to enter into an Agreement with the Commission . The State of Vermont law contains provisions for the orderly transfer of regulatory authority over affected licensees from the NRC to the State. In a letter dated April 11 , 2019, Governor Scott certified that the State of Vermont has a program for the control of radiation hazards that is adequate to protect public health and safety within the State of Vermont for the materials and activities specified in the proposed Agreement, and that the State desires to assume regulatory responsibility for these materials and activities. After the effective date of the Agreement, licenses issued by NRC would continue in effect as State of Vermont licenses until the licenses expire or are replaced by State-issued licenses.

(d) Based on the draft staff assessment, the NRC staff finds that the Vermont Department of Health , Radiological and Toxicological Sciences Program Gffis&-ef-Radiological Health's Program is adequate to protect public health and safety and is 5

compatible with the NRC's regulatory program for the regulation of Agreement materials.

However, the it should be noted that NRC staff identified several sections of the final Vermont Radioactive Materials Regulations that were either not compatible or needed additional editorial changes. By letter dated May 10, 2019, the NRC staff described these compatibility and editorial issues, and requested that the Vermont Department of Health @!2!y_commit within 60 days with a commitment to make the described regulatory changes as soon as practicable (ADAMS Accession No. ML19102A160).

Summary of the Draft NRC Staff Assessment of the State of Vermont's Program for the Regulation of Agreement Materials The NRC staff has examined the State of Vermont's request for an Agreement with respect to the ability of the State's radiation control program to regulate Agreement materials. The examination was based on the Commission's Policy Statement, "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 at 48 FR 33376 , July 21, 1983) (Policy Statement), and the Office of Nuclear Material Safety and Safeguards Procedure SA-700, "Processing an Agreement" (available at http://scp.nrc.gov/procedures/sa 700.pdfand http://scp.nrc.gov/procedures/sa700 hb.pdf). The Policy Statement has 28 criteria that serve as the basis for the NRC staff's assessment of the State of Vermont's request for an Agreement. The following section will reference the appropriate criteria numbers from the Policy Statement that apply to each section.

(a) Organization and Personnel. The NRC staff reviewed these areas under Criteria 1, 2, 20, and 24. The State of Vermont's proposed Agreement materials program for the regulation of radioactive materials 1s called the "Radioactive Materials Program ." The Radioactive Materials Program will be located within the existing 6

Radiological and Toxicological Sciences ProgramOffice of Radiological Health of the Vermont Department of Health.

The educational requirements for the Rad1olog1cal and Tox1colog1cal Sciences Program Radioactive Materials Program staff members are specified in the State of Vermont's personnel position descriptions and meet the NRC criteria with respect to formal education or combined education and experience requirements. All current staff members hold a Master's Degree in either environmental science or radiologic and imaging sciences. All have training and work experience in radiation protection.

Supervisory level staff have at least 20 years of working experience in radiation protection.

The State of Vermont performed an analysis of the expected workload under the proposed Agreement. Based on the NRC staff review of the State of Vermont's analysis, the State has an adequate number of staff to regulate radioactive materials under the terms of the proposed Agreement. The State of Vermont will employ the equivalent of 1.25 full-time equivalent professional and technical staff to support the Radiological and Toxicological Sciences ProgramRadioactive Materials Program .

The State of Vermont has indicated that the Radiological and Toxicological Sciences Program Radioactive Materials Program has an adequate number of trained and qualified staff in place.

• The State of Vermont has developed qualification procedures for license reviewers and inspectors that are similar to the NRC's procedures. The Radiological and Toxicological Sciences Program Radioactive Materials Program staff has accompanied the NRC staff on inspections of NRC licensees in Vermont and participated in licensing training at NRC's Region 1-w+tR Division of Nuclear Materials Safety staff. The Radiological and Toxicological Sciences Program Radioactive Materials Program staff is also actively supplementing their experience through direct meetings, discussions, and facility visits with the NRC 7

licensees in the State of Vermont and through self-study, in-house training , and formal training .

Overall , the NRC staff concluded that the Radiological and Toxicological Sciences Program Radioactive Materrals Program staff identified by the State of Vermont to participate in the Agreement materials program have sufficient knowledge and experience in radiation protection , the use of radioactive materials, the standards for the evaluation of applications for licensing, and the techniques of inspecting licensed users of Agreement materials.

(b) Legislation and Regulations . The NRC staff reviewed these areas under Criteria 1-15, 17, 19, and 21-28 in the draft staff assessment. The Vermont Statutes VSA §§ 1651 through 1657 provide the authority to enter into the Agreement and establish the Vermont Department of Health as the lead agency for the State's

. Radioactive Materials Program. The Department has the requisite authority to promulgate regulations under Vermont Statute VSA §§ 1653(b)( 1) for protection against radiation. The Vermont Statutes VSA §§ 1651 through 1657 also provide the Radiological and Toxicological Sciences Program Radioactive Materials Program the authority to issue licenses and orders; conduct inspections; and enforce compliance with regulations , license conditions , and orders. The Vermont Statute VSA §§ 1654 requires licensees to provide access to inspectors.

The NRC staff verified that the State of Vermont adopted by reference the relevant NRC regulations in parts 19, 20, 30, 31 , 32, 33, 34, 35, 36, 37, 39, 40, 61 , 70, 71, and 150 of title 10 of the Code of Federal Regulations ( 10 CFR), into the Vermont Radioactive Materials Rule, Chapter 6, Subchapter 5. During its review, the NRC staff identified several sections of the final Vermont Radioactive Materials Regulations that are not compatible or need editorial changes. By letter dated May 10, 2019, the NRC staff described these compatibility and editorial issues, and requested that the Vermont 8

Department of Health @Q[y_comm1t within 60 days with a commitment to make the described regulatory changes as soon as practicable. The resolution of these comments does not interfere with NRC staff's processing of Vermont's Agreement State Application. Therefore, on the proposed effective date of the Agreement, the NRC anticipates that the State of Vermont will have committed to adopting an adequate and compatible set of radiation protection regulations that apply to byproduct materials, source material and special nuclear material in quantities not sufficient to form a critical mass. The NRC staff also verified that the State of Ve_ rmont will not attempt to enforce regulatory matters reserved to the Commission.

(c) Storage and Disposal. The NRC staff reviewed these areas under Criteria 8, 9a, and 11 in the draft staff assessment. The State of Vermont has adopted NRC compatible requirements for the handling and storage of radioactive material, including regulations equivalent to the applicable standards contained in 10 CFR parts 20, which address the general requirements for waste disposal, and part 61, which addresses waste classification and form, af\4- both of which are applicable to all licensees covered under this proposed Agreement.

(d) Transportation of Radioactive Material. The NRC staff reviewed this area under Criteria 10 in the draft staff assessment. The State of Vermont has adopted compatible regulations to the NRC regulations in 10 CFR part 71. Part 71 contains the requirements licensees must follow when preparing packages containing radioactive material for transport. Part 71 also contains requirements related to the licensing of packaging for use in transporting radioactive materials.

(e) Recordkeeping and Incident Reporting. The NRC staff reviewed this area under Criteria 1 and 11 in the draft staff assessment. The State of Vermont has adopted compatible regulations to the sections of the NRC regulations that specify requirements for licensees to keep records and to report incidents or accidents involving the State's 9

regulated Agreement materials.

(f) Evaluation of License Applications . The NRC staff reviewed this area under Criteria 1, 7, 8, 9a, 13, 14, 15, 20, 23 and 25 in the draft staff assessment. The State of Vermont has adopted compatible regulations to the NRC regulations that specify the requirements to obtain a license to possess or use radioactive materials. The State of Vermont has also developed licensing procedures and adopted NRC licensing guides for specific uses of radioactive material for use by the program staff when evaluating license applications.

(g) Inspections and Enforcement. The NRC staff reviewed these areas under Criteria 1, 16, 18, 19, and 23 in the draft staff assessment. The State of Vermont has adopted a schedule providing for the inspection of licensees as frequently as, or more frequently than, the inspection schedule used by the NRC. The State of Vermont's Rad1olog1cal and Toxicological Sciences Program Radioactive Materials Program has adopted procedures for the conduct of inspections, reporting of inspection findings, and reporting inspection results to the licensees. Additionally, the State of Vermont has also adopted procedures for the enforcement of regulatory requirements.

(h) Regulatory Administration. The NRC staff reviewed this area under Criterion 23 in the draft staff assessment. The State of Vermont is bound by requirements specified in its State law for rulemaking , issuing licenses, and taking enforcement actions. The State of Vermont has also adopted administrative procedures to assure fair and impartial treatment of license applicants. The State of Vermont law prescribes standards of ethical conduct for State employees.

(i) Cooperation with Other Agencies. The NRC staff reviewed this area under Criteria 25, 26, and 27 in the draft staff assessment. The State of Vermont law provides for the recognition of existing NRC and Agreement State licenses and the State has a process in place for the transition of active NRC licenses. Upon the effective date of the 10

Agreement, all NRC radioactive materials NRG-licenses issued to facilities in the State of Vermont will be recognized as Vermont Department of Health licenses.

The State of Vermont also provides for "timely renewal. " This provision affords the continuance of licenses for which an application for renewal has been filed more than 30 days prior to the date of expiration of the license. NRC licenses transferred while in timely renewal are included under the continuation provision.

The State of Vermont regulations, in Vermont Radioactive Materials Rule Chapter 6, Subchapter 5, which adopts NRC regulations 10 CFR §§ 30.12, 40.11 and 70.11 by reference, provide exemptions from the State's requirements for the NRC and the U.S. Department of Energy contractors or subcontractors; the exemptions must be authorized by law and determined not to endanger life or property and to otherwise be in the public interest. The proposed Agreement commits the State of Vermont to use its best efforts to cooperate with the NRC and the other Agreement States in the formulation of standards and regulatory programs for the protection against hazards of radiation-, and to assure that the State's program will continue to be compatible with the Commission's program for the regulation of Agreement materials. The proposed Agreement specifies the desirability of reciprocal recognition of licenses, and commits the Commission and the State of Vermont to use their best efforts to accord such reciprocity. The State of Vermont would be able to recognize the licenses of other jurisdictions by general license.

Staff Conclusion Section 274d. of the AEA provides that the Commission shall enter into an Agreement under Section 27 4b. with any State if:

(a) The Governor of the State certifies that the State has a program for the control of radiation hazards adequate to protect public health and safety with respect to the Agreement materials within the State and that the State desires to assume 11

regulatory responsibility for the Agreement materials; and (b) The Commission finds that the State program is in accordance with the requirements of Subsection 27 4o. and in all other respects compatible with the Commission's program for the regulation of materials, and that the State program is adequate to protect public health and safety with respect to the materials covered by the proposed Agreement.

The NRC staff has reviewed the proposed Agreement, the certification of Vermont Governor Scott, and the supporting information provided by the Radioactive Materials Program Rad1olog1cal and Toxicological Sciences Program of the Vermont Department of Health. Based upon this review, the NRC staff concludes that the State of Vermont Radioactive Materials Program Radiological and Toxicological Sciences Program satisfies the Section 274d . criteria as well as the criteria in the Commission's Policy Statement "Criteria for Guidance of States and NRC in Discontinuance of NRC Regulatory Authority and Assumption Thereof by States Through Agreement." The NRC staff also concludes that the proposed State of Vermont program to regulate Agreement materials, as comprised of statutes, regulations , procedures, and staffing is compatible with the Commission's program and is adequate to protect public health and safety with respect to the materials covered by the proposed Agreement. Therefore, the proposed Agreement meets the requirements of Section 27 4 of the AEA.

Dated at Rockville, Maryland, this XX th day of June, 2019.

For the Nuclear Regulatory Commission.

Andrea L. Kock, Director, Division of Materials Safety, Security, State, and Tribal Programs, Office of Nuclear Material Safety 12

and Safeguards APPENDIX A AN AGREEMENT BETWEEN THE UNITED STATES NUCLEAR REGULATORY COMMISSION AND THE STATE OF VERMONT FOR THE DISCONTINUANCE OF

• CERTAIN COMMISSION REGULATORY AUTHORITY AND RESPONSIBILITY

• WITHIN THE STATE 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 Comm ission") is authorized under Section 274 of the Atomic Energy Act of 1954, as amended , 42 U.S.C. Section 2011 et seq. (hereinafter referred to as "the Act") , to enter into agreements with the Governor of the State of Vermont (hereinafter referred to as "the State") providing for discontinuance of the regulatory authority of the Commission within the State under Chapters 6, 7, and 8, and Section 161 of the Act with respect to byproduct materials as defined in Sections 11e.(1 ), (3),

and (4) of the Act, source materials, and special nuclear materials in quantities not sufficient to form a critical mass; and ,

13

WHEREAS, The Governor of the State is authorized under 18 V.S .A. § 1653 to enter into this Agreement with the Commission; and, WHEREAS , The Governor of the State certified on April 11, 2019, that the State has 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 this Agreement, and that the State desires to assume regulatory responsibility for such materials; and, WHEREAS , The Commission found on [date] that the program of the State for the regulation of the 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, WHEREAS, The State and the Commission recognize the desirability and importance of cooperation between the Commission and the State in the formulation of standards for protection against hazards of radiation and in assuring that State and Commission programs for protection against hazards of radiation will be coordinated and compatible; and, WHEREAS , The Commission and the State recognize the desirability of the reciprocal 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 Act; NOW, THEREFORE, It is hereby agreed between the Commission and the Governor of Vermont acting on behalf of the State as follows:

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ARTICLE I Subject to the exceptions provided in Articles II, IV, and V, the Commission shall discontinue, as of the effective date of this Agreement, the regulatory authority of the Commission in the State under Chapters §_._7 and 8, and Section 161 of the Act with respect to the following materials:

1.. Byproduct material as defined in Section 11 e.( 1) of the Act;

2. Byproduct material as defined in Section 11e.(3) of the Act;

3. Byproduct material as defined in Section 11 e.( 4) of the Act;

4. Source material; and

5. Special nuclear material, in quantities not sufficient to form a critical mass.

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

A. The regulation of byproduct material as defined in Section 11 e.(2) of the Act; B. The regulation of the land disposal of byproduct, source, or special nuclear material received from other persons; C. The evaluation of radiation safety information on sealed sources or devices containing byproduct, source, or special nuclear material and the registration of the sealed sources or devices for distribution, as provided for in regulations or orders of the Commission; D. The regulation of the construction, operation and decommissioning of any production or utilization facility or any uranium enrichment facility; E. 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; 15

F. The regulation of the disposal into the ocean or sea of byproduct, source, or special nuclear material waste as defined in the regulations or orders of the Commission; G. 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 to be so disposed without a license from the Commission; and H. The regulation of activities not exempt from Commission regulation as stated in 10 CFR Part 150.

ARTICLE 111 With the exception of those activities identified in Article II, paragraph§ fetlf..De.

through paragraph eighlH ., this Agreement may be amended, upon application by the State and approval by the Commission to include one or more of the additional activities specified in Article II, paragraph GR&-&J hrough #weeC ., whereby the State may then exert regulatory authority and responsibility with respect to those activities.

ARTICLE IV Notwithstanding this Agreement, the Commission may from time to time by rule, regulation, or order, require that the manufacturer, 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 for licensing issued by the Commission.

ARTICLE V This Agreement shall not affect the authority of the Commission under Subsection 161 b. or 161 i. 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.

16

ARTICLE VI The Commission will cooperate with the State 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 programs for protection against hazards of radiation will be coordinated and compatible.

The State agrees to cooperate with the Commission 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 the State's program will continue to be compatible with the program of the Commission for the regulation of materials covered by this Agreement.

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

ARTICLE VIII The Commission , upon its own initiative after reasonable notice and opportunity for hearing to the State or upon request of the Governor of Vermont, may terminate or 17

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 has not complied with one or more of the requirements of Section 27 4 of the Act.

The Commission may also, pursuant to Section 274j . of the Act, 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 has failed to take necessary steps. The Commission shall periodically review actions taken by the State under this Agreement to ensure compliance with Section 27 4 of the Act, which requires a State 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 .

ARTICLEX This Agreement shall become effective on [date] , and shall remain in effect unless and until such time as it is terminated pursuant to Article VIII.

Done at [location] this [date] day of [month] , 2019.

For the Nuclear Regulatory Commission.

Kristine L. Svinicki, Chairman Done at [location] this [date] day of [month] , 2019.

For the State of Vermont.

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Philip B. Scott, Governor 19

POLICY ISSUE NOTATION VOTE RESPONSE SHEET TO: Annette Vietti-Cook, Secretary FROM: Commissioner Caputo

SUBJECT:

SECY-19-0058: Proposed Agreement Between the State of Vermont and the Commission Pursuant to Section 274 of the Atomic Energy Act of 1954, as Amended Approved XX Disapproved --

Abstain --

Not Participating COMMENTS: Below XX Attached XX None In reviewing the staff's draft assessment of the proposed Agreement with the State of Vermont, the NRC staff concluded that the Vermont Byproduct Materials program is compatible with the NRC's regulatory program and is , therefore , adequate to protect public health and safety, subject to slight revisions to certain sections of Vermont's. Radioactive Materials Regulations .

The staff notes that resolution of these comments do not interfere with the NRC's processing of this Agreement State application and following discussions with Vermont, expects the State to complete these changes prior to the effective date of the final Agreement.

I therefore approve publishing the proposed Agreement with the State of Vermont and a summary of the draft U.S. Nuclear Regulatory Commission staff assessment of the State's regulatory program in the Federal Register for public comment, subject to the attached edits.

Entered in STARS Yes X Si No

[7590-01-P]

AXC Edits on SECY 0058. Enclosure 1. FRN NUCLEAR REGULATORY COMMISSION

[NRC-2019-0114]

State of Vermont: NRC Staff Assessment of a Proposed Agreement Between the Nuclear Regulatory Commission and the State of Vermont AGENCY: Nuclear Regulatory Commission.

ACTION: Proposed state agreement; request for comment.

SUMMARY

By letter dated April 11, 2019, Governor Philip Scott of the State of Vermont requested that the U.S. Nuclear Regulatory Commission (NRC or Commission) enter into an Agreement with the State of Vermont as authorized by Section 27 4b. of the Atomic Energy Act of 1954, as amended (AEA).

Under the proposed Agreement, the Commission would discontinue, and the State of Vermont would assume, regulatory authority over certain types of byproduct materials as defined in the AEA, source material, and special nuclear material in quantities not sufficient to form a critical mass.

As required by Section 274e. of the AEA, the NRC is publishing the proposed Agreement for public comment. The NRC is also publishing the summary of a draft assessment by the NRC staff of the State of Vermont's regulatory program. Comments are requested on the proposed Agreement_, especially and its effect on public health and safety. Comments are also requested on the draft staff assessment.

DATES: Submit comments by [INSERT DATE 30 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER] . Comments received after this date will be considered if it is practical to do so, but the Commission is able to ensure

consideration only for comments received before this date.

ADDRESSES: You may submit comments by the following method :

• Federal Rulemaking Web Site: Go to http://www.regulations.gov and search for Docket ID NRC-2019-0114. Address questions about NRC dockets in Regulations.gov to Jennifer Borges; telephone: 301-287-9127; e-mail :

Jennifer.Borges@nrc.gov. For technical questions, contact the individuals listed in the FOR FURTHER INFORMATION CONTACT section of this document.

For additional direction on obtaining information and submitting comments, see "Obtaining Information and Submitting Comments" in the SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Duncan White, Office of Nuclear Material Safety and Safeguards, telephone: 301-415-2598, e-mail: Duncan.White@nrc.gov of the U.S. Nuclear Regulatory Commission , Washington , DC 20555-0001 .

SUPPLEMENTARY INFORMATION:

I. Obtaining Information and Submitting Comments A. Obtaining Information Please refer to Docket ID NRC-2019-0114 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:

• Federal Rulemaking Web Site: Go to http://www.regulations.gov and search for Docket ID NRC-2019-0114.

• NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly-available documents online in the ADAMS Public Documents collection at http://www.nrc.gov/reading-rm/adams.html. To begin the search , select "ADAMS Public Documents" and then select "Begin Web-based ADAMS 2

Search ." For problems with ADAMS , please contact the NRC's Public Document Room (PDR) reference staff at 1-800-397-4209, at 301-415-4737, or by e-mail to pdr.resource@nrc.gov. The final application for an AEA Section 27 4 Agreement from the State of Vermont, the draft assessment of the proposed Vermont program, and additional related correspondence between the NRC and the State for the regulation of agreement materials are available in ADAMS under Accession Nos. ML19107A432, ML19114A092, ML19115A214, ML19102A130 and ML19113A279.

• NRC's PDR: You may examine and purchase copies of public documents at the NRC's PDR , Room 01-F21 , One White Flint North, 11555 Rockville Pike, Rockville ,

Maryland 20852 .

B. Submitting Comments Please include Docket ID NRC-2019-0114 in your comment submission. The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission . The NRC will post all comment submissions at http://www.regulations.gov as well as enter the comment submissions into ADAMS. The NRC does not routinely edit comment submissions to remove identifying or contact information.

If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS .

3

II. Additional Information on Agreements entered under Section 27 4 of the AEA Under the proposed Agreement, the NRC would discontinue its authority over 36 licenses and would transfer its authority over those licenses to the State of Vermont.

The NRC periodically reviews the performance of the Agreement States to assure compliance with the provisions of Section 27 4.

Section 27 4e. of the AEA requires that the terms of the proposed Agreement (in Appendix A) be published in the Federal Register for public comment once each week for four consecutive weeks. This notice is being published in fulfillment of that requirement.

Ill. Proposed Agreement with the State of Vermont

Background

(a) Section 274b. of the AEA provides the mechanism for a State to assume and the NRC to discontinue regulatory authority over certain radioactive materials and activities that involve use of these materials. The radioactive materials, sometimes referred to as "Agreement materials," are byproduct materials as defined in Sections 11 e.( 1), 11 e.(2), 11 e.(3), and 11 e.( 4) of the AEA; source material as defined in Section 11 z. of the AEA; and special nuclear material as defined in Section 11 aa. of the AEA, restricted to quantities not sufficient to form a critical mass.

(b) The proposed Agreement contains articles that:

i) Specify the materials and activities over which authority is discontinued; ii) Specify the materials and activities over which the Commission will retain regulatory authority; iii) Continue the authority of the Commission to safeguard special nuclear material, protect restricted data, and protect common 4

defense and security; iv) Commit the State of Vermont and the NRC to exchange information as necessary to maintain coordinated and compatible programs; v) Provide for the reciprocal recognition of licenses; vi) Provide for the suspension or termination of the Agreement; and vii) Specify the effective date of the proposed Agreement.

The Commission reserves the option to modify the terms of the proposed Agreement in response to comments, to correct errors, and to make editorial changes.

The final text of the proposed Agreement, with the effective date, will be published after the Agreement is approved by the Commission and signed by the NRC Chairman and the Governor of Vermont.

(c) The regulatory program is authorized by law under the Vermont Statute Act (VSA) §§ 1651 through 1657, which provides the Governor with the authority to enter into an Agreement with the Commission. The State of Vermont law contains provisions for the orderly transfer of regulatory authority over affected licensees from the NRC to the State. In a letter dated April 11, 2019, Governor Scott certified that the State of Vermont has a program for the control of radiation hazards that is adequate to protect public health and safety within the State of Vermont for the materials and activities specified in the proposed Agreement, and that the State desires to assume regulatory responsibility for these materials and activities (ADAMS Accession No. ML19116A227).

After the effective date of the Agreement, licenses issued by NRC would continue in effect as State of Vermont licenses until the licenses expire or are replaced by State-issued licenses.

(d) Based on the draft staff assessment, the NRC staff finds that the Vermont Department of Health, Office of Radiological Health's Program is adequate to protect 5

public health and safety and is compatible with the NRC's regulatory program for the regulation of Agreement materials. However, it should be noted that NRC staff identified several sections of the final Vermont Radioactive Materials Regulations that were either not compatible or needed additional editorial changes. By letter dated May 10, 2019, the NRC staff described these compatibility and editorial issues, and requested that the Vermont Office of Radiological Health Vermont Department of Health respond commit within 60 days committing to commit to make the described regulatory changes as soon as practicable (ADAMS Accession No. ML19102A160). and requested that the Vermont Office of Radiological Health respond within 60 days to commit to make the described regulatory Summary of the Draft NRC Staff Assessment of the State of Vermont's Program for the Regulation of Agreement Materials The NRC staff has examined the State of Vermont's request for an Agreement with respect to the ability of the State's radiation control program to regulate Agreement materials. The examination was based on the Commission's Policy Statement, "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 at 48 FR 33376, July 21, 1983) (Policy Statement), and the Office of Nuclear Material Safety and Safeguards Procedure SA-700, "Processing an Agreement" (available at http://scp.nrc.gov/procedures/sa700.pdf and http://scp.nrc.gov/procedures/sa700 hb.pdf). The Policy Statement has 28 criteria that serve as the basis for the NRC staff's assessment of the State of Vermont's request for an Agreement. The following section will reference the appropriate criteria numbers from the Policy Statement that apply to each section.

(a) Organization and Persqnnel. The NRC staff reviewed these areas under 6

Criteria 1, 2, 20, and 24. The State of Vermont's proposed Agreement materials program for the regulation of radioactive materials is called the "Radioactive Materials Program./ ' The Radioactive Materials Program will be located within the existing Office of Radiological Health..... ~ o f the Vermont Department of Health.

The educational requirements for the Radioactive Materials Program staff members are specified in the State of Vermont's personnel position descriptions and meet the NRC criteria with respect to formal education or combined education and experience requirements. All current staff members hold a Master's Degree in either environmental science or radiologic and imaging sciences. All have training and work experience in radiation protection. Supervisory level staff have at least 20 years of working experience in radiation protection.

The State of Vermont performed an analysis of the expected workload under the proposed Agreement. Based on the NRC staff review of the State of Vermont's analysis, the State has an adequate number of staff to regulate radioactive materials under the terms of the proposed Agreement. The State of Vermont will employ the equivalent of 1.25 full-time equivalent professional and technical staff to support the Radioactive Materials Program.

The State of Vermont has indicated that the Radioactive Materials Program has an adequate number of trained and qualified staff in place. The State of Vermont has developed qualification procedures for license reviewers and inspectors that are similar to the NRC's procedures. The Radioactive Materials Program staff has accompanied the NRC staff on inspections of NRC licensees in Vermont and participated in licensing training at NRC's Region I with Division of Nuclear Materials Safety staff. The Radioactive Materials Program staff is also actively supplementing their experience through direct meetings, discussions, and facility visits with the NRC licensees in the State of Vermont and through self-study, in-house training , and formal training.

7

Overall, the NRC staff concluded that the Radioactive Materials Program staff identified by the State of Vermont to participate in the Agreement materials program have sufficient knowledge and experience in radiation protection, the use of radioactive materials, the standards for the evaluation of applications for licensing , and the techniques of inspecting licensed users of Agreement materials.

(b) Legislation and Regulations. The NRC staff reviewed these areas under Criteria 1-15, 17, 19, and 21-28 in the draft staff assessment. The Vermont Statutes Act (VSA} §§ 1651 through 1657 provide the authority to enter into the Agreement and establish the Vermont Department of Health as the lead agency for the State's Radioactive Materials Program. The Department has the requisite authority to promulgate regulations under Vermont Statute VSA §§ 1653(b )( 1) for protection against radiation. The Vermont Statutes VSA §§ 1651 through 1657 also provide the Radioactive Materials Program the authority to issue licenses and orders; conduct inspections; and enforce compliance with regulations , license conditions, and orders .

The Vermont Statute VSA §§ 1654 requires licensees to provide access to inspectors.

The NRC staff verified that the State of Vermont adopted by reference the relevant NRC regulations in parts 19, 20, 30, 31 , 32 , 33, 34, 35, 36, 37 , 39, 40, 61 , 70, 71 , and 150 of title 10 of the Code of Federal Regulations (10 CFR), into the Vermont Radioactive Materials Rule, Chapter 6, Subchapter 5. During its review, the NRC staff identified several sections of the final Vermont Radioactive Materials Regulations that are not compatible or need editorial changes. By letter dated May 10, 2019 , the NRC staff described these compatibility and editorial issues, and requested that the Vermont Office of Radiological Department of Health respond commit within 60 days te-committing to make the described regulatory changes as soon as practicable. Because these changes are not necessary for adequate protection of the public health and safety,

!+he resolution of these comments does not interfere with NRC staff's processing of 8

Vermont's Agreement State Application. Therefore, on the proposed effective date of the Agreement, NRC anticipates that the State of Vermont will have committed to adopting an adequate and compatible set of radiation protection regulations that apply to byproduct materials, source material and special nuclear material in quantities not sufficient to form a critical mass. The NRC staff also verified that the State of Vermont will not attempt to enforce regulatory matters reserved to the Commission.

(c) Storage and Disposal. The NRC staff reviewed these areas under Criteria 8, 9a, and 11 in the draft staff assessment. The State of Vermont has adopted NRC compatible requirements for the handling and storage of radioactive material, including regulations equivalent to the applicable standards contained in 10 CFR parts 20, which address the general requirements for waste disposal, and part 61, which addresses waste classification and form , aRG-both of which are applicable to all licensees covered under this proposed Agreement.

(d) Transportation of Radioactive Material. The NRC staff reviewed this area under Criteria 10 in the draft staff assessment. The State of Vermont has adopted compatible regulations to the NRC regulations in 10 CFR part 71 . Part 71 contains the requirements licensees must follow when preparing packages containing radioactive material for transport. Part 71 also contains requirements related to the licensing of packaging for use in transporting radioactive materials.

(e) Recordkeeping and Incident Reporting. The NRC staff reviewed this area under Criteria 1 and 11 in the draft staff assessment. The State of Vermont has adopted compatible regulations to the sections of the NRC regulations that specify requirements for licensees to keep records and to report incidents or accidents involving the State's regulated Agreement materials.

(f) Evaluation of License Applications. The NRC staff reviewed this area under Criteria 1, 7, 8, 9a, 13, 14, 15, 20, 23 and 25 in the draft staff assessment. The State of 9

Vermont has adopted compatible regulations to the NRC regulations that specify the requirements to obtain a license to possess or use radioactive materials. The State of Vermont has also developed licensing procedures and adopted NRC licensing guides for specific uses of radioactive material for use by the program staff when evaluating license applications.

(g) Inspections and Enforcement. The NRC staff reviewed these areas under Criteria 1, 16, 18, 19, and 23 in the draft staff assessment. The State of Vermont has adopted a schedule providing for the inspection of licensees as frequently as, or more frequently than , the inspection schedule used by the NRC. The State of Vermont's Radioactive Materials Program has adopted procedures for the conduct of inspections, reporting of inspection findings , and reporting inspection results to the licensees.

Additionally, the State of Vermont has also adopted procedures for the enforcement of regulatory requirements.

(h) Regulatory Administration . The NRC staff reviewed this area under Criterion 23 in the draft staff assessment. The State of Vermont is bound by requirements specified in its State law for rulemaking , issuing licenses, and taking enforcement actions. The State of Vermont has also adopted administrative procedures to assure fair and impartial treatment of license applicants. The State of Vermont law prescribes standards of ethical conduct for State employees.

(i) Cooperation with Other Agencies. The NRC staff reviewed this area under Criteria 25, 26, and 27 in the draft staff assessment. The State of Vermont law provides for the recognition of existing NRC and Agreement State licenses and the State has a process in place for the transition of active NRC licenses. Upon the effective date of the Agreement, all NRC radioactive materials NRG-licenses issued to facilities in the State of Vermont will be recognized as Vermont Department of Health licenses.

The State of Vermont also provides for "timely renewal. " This provision affords 10

the continuance of licenses for which an application for renewal has been filed more than 30 days prior to the date of expiration of the license. NRC licenses transferred while in timely renewal are included under the continuation provision.

The State of Vermont regulations, in Vermont Radioactive Materials Rule Chapter 6, Subchapter 5, which adopts NRC regulations 10 CFR §§ 30.12, 40.11 and 70.11 by reference , provide exemptions from the State's requirements for the NRC and the U.S. Department of Energy contractors or subcontractors; the exemptions must be authorized by law and determined not to endanger life or property and to otherwise be in the public interest. The proposed Agreement commits the State of Vermont to use its best efforts to cooperate with the NRC and the other Agreement States in the formulation of standards and regulatory programs for the protection against hazards of radiation, and to assure that the State's program will continue to be compatible with the Commission's program for the regulation of Agreement materials. The proposed Agreement specifies the desirability of reciprocal recognition of licenses, and commits the Commission and the State of Vermont to use their best efforts to accord such reciprocity. The State of Vermont would be able to recognize the licenses of other jurisdictions by general license.

Staff Conclusion Section 274d . of the AEA provides that the Commission shall enter into an Agreement under Section 27 4b. with any State if:

(a) The Governor of the State certifies that the State has a program for the control of radiation hazards adequate to protect public health and safety with respect to the Agreement materials within the State and that the State desires to assume regulatory responsibility for the Agreement materials; and (b) The Commission finds that the State program is in accordance with the requirements of Subsection 2740. and in all other respects compatible with the 11

Commission's program for the regulation of materials, and that the State program is adequate to protect public health and safety with respect to the materials covered by the proposed Agreement.

The NRC staff has reviewed the proposed Agreement, the certification of Vermont Governor Scott, and the supporting information provided by the Radioactive Materials Program of the Vermont Department of Health . Based upon this review, the NRC staff concludes that the State of Vermont Radioactive Materials Program satisfies the Section 274d. criteria as well as the criteria in the Commission's Policy Statement "Criteria for Guidance of States and NRC in Discontinuance of NRC Regulatory Authority and Assumption Thereof by States Through Agreement. " The NRC staff also concludes that the proposed State of Vermont program to regu late Agreement materials, as comprised of statutes, regulations, procedures, and staffing is compatible with the Comm ission's program and is adequate to protect public health and safety with respect to the materials covered by the proposed Agreement. Therefore, the proposed Agreement meets the requirements of Section 274 of the AEA.

Dated at Rockville , Maryland , this XX th day of June, 2019.

For the Nuclear Regulatory Commission.

Andrea L. Kock, Director, Division of Materials Safety, Security, State, and Tribal Programs, Office of Nuclear Material Safety and Safeguards 12

APPENDIX A AN AGREEMENT BETWEEN THE UNITED STATES NUCLEAR REGULATORY COMMISSION AND THE STATE OF VERMONT FOR THE DISCONTINUANCE OF CERTAIN COMMISSION REGULATORY AUTHORITY AND RESPONSIBILITY WITHIN THE STATE PURSUANT TO SECTION 274 OF THE ATOMIC ENERGY ACT OF 1954, AS AMENDED 13

WHEREAS, The United States Nuclear Regulatory Commission (hereinafter referred to as "the Commission") is authorized under Section 27 4 of the Atomic Energy Act of 1954, as amended, 42 U.S.C. Section 2011 et seq. (hereinafter referred to as "the Act"), to enter into agreements with the Governor of the State of Vermont (hereinafter referred to as "the State") providing for discontinuance of the regulatory authority of the Commission within the State under Chapters 6, 7, and 8, and Section 161 of the Act with respect to byproduct materials as defined in Sections 11 e.(1 ), (3),

and (4) of the Act, source materials, and special nuclear materials in quantities not sufficient to form a critical mass; and ,

WHEREAS, The Governor of the State is authorized under 18 VSA V.S .A.

§ 1653 to enter into this Agreement with the Commission ; and, WHEREAS, The Governor of the State certified on April 11 , 2019, that the State has 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 this Agreement, and that the State desires to assume regulatory responsibility for such materials; and, WHEREAS , The Commission found on [date] that the program of the State for the regulation of the 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 ,

WHEREAS , The State and the Commission recognize the desirability and importance of cooperation between the Commission and the State in the formulation of standards for protection against hazards of radiation and in assuring that State and 14

Commission programs for protection against hazards of radiation will be coordinated and compatible; and, WHEREAS, The Commission and the State recognize the desirability of the reciprocal 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 Act; NOW, THEREFORE, It is hereby agreed between the Commission and the Governor of Vermont acting on behalf of the State as follows:

ARTICLE I Subject to the exceptions provided in Articles II, IV, and V, the Commission shall discontinue, as of the effective date of this Agreement, the regulatory authority of the Commission in the State under Chapters 7 and 8, and Section 161 of the Act with respect to the following materials:

1. Byproduct material as defined in Section 11 e.( 1) of the Act;

2. Byproduct material as defined in Section 11 e.(3) of the Act;

3. Byproduct material as defined in Section 11e.(4) of the Act;

4. Source material§; and

5. Special nuclear material§, in quantities not sufficient to form a critical mass.

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

A. The regulation of byproduct material as defined in Section 11 e.(2) of the Act; 15

B. The regulation of the land disposal of byproduct, source, or special nuclear material received from other persons; C. The evaluation of radiation safety information on sealed sources or devices containing byproduct, source, or special nuclear material and the registration of the sealed sources or devices for distribution, as provided for in regulations or orders of the Commission; D. The regulation of the construction , operation and decommissioning of any production or utilization facility or any uranium enrichment facility; E. 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; F. The regulation of the disposal into the ocean or sea of byproduct, source, or special nuclear material waste as defined in the regulations or orders of the Commission; G. 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 to be so disposed without a license from the Commission; and H. The regulation of activities not exempt from Commission regulation as stated in 10 CFR Part 150.

ARTICLE Ill With the exception of those activities identified in Article II , paragraph.§. fetH:-.D, E, and F-through paragraph eight, this Agreement may be amended, upon application by the State and approval by the Commission to include one or more of the additional activities specified in Article II , paragraph.§. A. B, and Cone through three , whereby the 16

State may then exert regulatory authority and responsibility with respect to those activities.

ARTICLE IV Notwithstanding this Agreement, the Commission may from time to time by rule ,

regulation , or order, require that the manufacturer, 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 for licensing issued by the Commission.

ARTICLE V This Agreement shall not affect the authority of the Commission under Subsection 161 b. or 161 i. 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 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 programs for protection against hazards of radiation will be coordinated and compatible .

The State agrees to cooperate with the Commission 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 the State's program will continue to be compatible with the program of the Commission for the regulation of materials covered by this Agreement.

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

ARTICLE VIII The Commission, upon its own initiative after reasonable notice and opportunity for hearing to the State or upon request of the Governor of Vermont, 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 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, temporarily suspend all or part of this Agreement if, in the judgment of the Commission, an emergency situation exists with respect to any material covered by this agreement creating -danger which requires requiring immediate action to protect public health and safety and the State has failed to take necessary steps to contain or eliminate the cause of danger within a reasonable time after the situation arose. The Commission shall periodically review 18

actions taken by the State under this Agreement to ensure compliance with Section 27 4 of the Act, which requires a State 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.

ARTICLEX This Agreement shall become effective on [date], and shall remain ir, effect unless and until such time as it is terminated pursuant to Article VIII.

Done at [location] this [date] day of [month], 2019.

For the Nuclear Regulatory Commission.

Kristine L. Svinicki, Chairman Done at [location] this [date] day of [month], 2019.

For the State of Vermont.

Philip B. Scott, Governor 19 L

POLICY ISSUE NOTATION VOTE RESPONSE SHEET TO: Annette Vietti-Cook, Secretary FROM: Commissioner Wright

SUBJECT:

SECY-19-0058: Proposed Agreement Between the State of Vermont and the Commission Pursuant to Section 274 of the Atomic Energy Act of 1954, as Amended Approved X Disapproved

- - Abstain - - Not Participating COMMENTS: Below X Attached X None I approve publish ing the proposed Agreement with the State of Vermont in the Federal Register for public comment, subject to the attached edits. I also approve publication of the staff's draft assessment of Vermont's regulatory program, subject to the attached edits.

Entered in STARS Yes 7 No- - -

DATE . (

[7590-01-P]

DAW Edits to SECY-19-0058 Enclosure 1 NUCLEAR REGULATORY COMMISSION

[NRC-2019-0114]

State of Vermont: NRC Staff Assessment of a Proposed Agreement Between the Nuclear Regulatory Commission and the State of Vermont AGENCY: Nuclear Regulatory Commission.

ACTION: Proposed state agreement; request for comment.

SUMMARY

By letter dated April 11 , 2019, Governor Philip Scott of the State of Vermont requested that the U. S. Nuclear Regulatory Commission (NRC or Commission) enter into an Agreement with the State of Vermont (Vermont or State) as authorized by Section 274b. of the Atomic Energy Act of 1954, as amended (AEA).

Under the proposed Agreement, the Commission woulp discontinue, and the State of Vermont would assume, regulatory authority over certain types of byproduct materials as defined in the AEA, source material, and special nuclear material in quantities not sufficient to form a critical mass.

As required by Section 27 4e. of the AEA, the NRC is publishing the proposed Agreement for public comment. The NRC is also publishing the summary of a draft assessment by the NRC staff of the State of Vermont's regulatory program . Comments are requested on the proposed Agreement, especially its effect on public health and safety. Comments are also requested on the draft staff assessment, the adequacy of the State of Vermont's program, and the State's program staff, as discussed in this notice.

DATES: Submit comments by [INSERT DATE 30 DAYS AFTER DATE OF INITIAL PUBLICATION IN THE FEDERAL REGISTER]. Comments received after this date will

be considered if it is practical to do so, but the Commission is able to ensure consideration only for comments received before this date.

ADDRESSES: You may submit comments by the following method :

• Federal Rulemaking Web Site: Go to https://www.regulations.gov and search for Docket ID NRC-2019-0114. Address questions about NRC dockets in Regulations.gov to Jennifer Borges; telephone : 301-287-9127; e-mail:

Jennifer.Borges@nrc.gov. For technical questions, contact the individuals listed in the FOR FURTHER INFORMATION CONTACT section of this document.

For additional direction on obtaining information and submitting comments, see "Obtaining Information and Submitting Comments" in the SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Duncan White, Office of Nuclear Material Safety and Safeguards, telephone: 301-415-2598, e-mail: Duncan.White@nrc.gov of the U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001 .

SUPPLEMENTARY INFORMATION:

I. Obtaining Information and Submitting Comments A. Obtaining Information Please refer to Docket ID NRC-2019-0114 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:

• Federal Rulemaking Web Site: Go to https://www.regulations.gov and search for Docket ID NRC-2019-0114.

• NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly-available documents online in the ADAMS Public Documents collection at https://www.nrc.gov/reading-rm/adams.html. To begin the 2

search , select "ADAMS Public Documents" and then select "Begin Web-based ADAMS Search." For problems with ADAMS , please contact the NRC's Public Document Room (PDR) reference staff at 1-800-397-4209, at 301-415-4737, or by e-mail to pdr.resource@nrc.gov. The final application for an AEA Section 27 4 Agreement from the State of Vermont, the draft assessment of the proposed Vermont program, and additional related correspondence between the NRC and the State for the regulation of agreement materials are available in ADAMS under Accession Nos. ML19107A432, ML19114A092, ML19115A214, ML19102A130 and ML19113A279.

• NRC's PDR: You may examine and purchase copies of public documents at the NRC's PDR, Room 01-F21, One White Flint North, 11555 Rockville Pike, Rockville ,

Maryland 20852.

B. Submitting Comments Please include Docket ID NRC-2019-0114 in your comment submission. The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at https://www.regulations .gov as well as enter the comment submissions into ADAMS. The NRC does not routinely edit comment submissions to remove identifying or contact information.

If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.

3

II. Additional Information on Agreements entered under Section 27 4 of the AEA Under the proposed Agreement, the NRC would discontinue its authority over 36 licenses and would transfer its regulatory authority over those licenses to the State of Vermont. The NRC periodically reviews the performance of the Agreement States to assure compliance with the provisions of Section 27 4.

Section 27 4e. of the AEA requires that the terms of the proposed Agreement ~

Appendix A) be published in the Federal Register for public comment once each week for four consecutive weeks . This notice is being published in fulfillment of that requirement.

Ill. Proposed Agreement with the State of Vermont

Background

(a) Section 274b. of the AEA provides the mechanism for a State to assume aoo-the NRG to discontinue regulatory authority from the NRC over certain radioactive materials and activities that involve use of these materials. The radioactive materials, sometimes referred to as "Agreement materials," are byproduct materials as defined in Sections 11 e.(1 ), 11e.(2), 11 e.(3), and 11e.(4) of the AEA; source material as defined in Section 11 z. of the AEA; and special nuclear material as defined in Section 11 aa. of the AEA, restricted to quantities not sufficient to form a critical mass.

The radioactive materials and activities (which together are usually referred to as the "categories of materials") that the State of Vermont requests authority over are:

1. Byproduct material as defined in Section 11 e.( 1) of the Act;

2. Byproduct material as defined in Section 11e.(3) of the Act;

3. Byproduct material as defined in Section 11e.(4) of the Act;

4. Source material; and

5. Special nuclear material, in quantities not sufficient to form a critical mass.

4

(b) The proposed Agreement contains articles that:

i) Specify the materials and activities over which authority is discontinuedtransferred; ii) Specify the materials and activities over which the Commission will retain regulatory authority; iii) Continue the authority of the Commission to safeguard special nuclear material, protect restricted data, and protect common defense and security; iv) Commit the State of Vermont and the NRC to exchange information as necessary to maintain coordinated and compatible programs; v) Provide for the reciprocal recognition of licenses; vi) Provide for the suspension or termination of the Agreement; and vii) Specify the effective date of the proposed Agreement.

The Commission reserves the option to modify the terms of the proposed Agreement in response to comments , to correct errors , and to make editorial changes.

The final text of the proposed Agreement, with the effective date, will be published after the Agreement is approved by the Commission and signed by the NRC Chairman and the Governor of Vermont.

(c) The regulatory program is authorized by law under the Vermont Statute~

AnnotatedGt (VL_STAT. ANN.) title 18, §§ 1651 through 1657, which provides the Governor with the authority to enter into an Agreement with the Commission. The State of Vermont law contains provisions for the orderly transfer of regulatory authority over affected licensees from the NRC to the State. In a letter dated April 11, 2019, Governor Scott certified that the State of Vermont has a program for the control of radiation hazards that is adequate to protect public health and safety within the State of Vermont 5

for the materials and activities specified in the proposed Agreement, and that the State desires to assume regulatory responsibility for these materials and activities. After the effective date of the Agreement, licenses issued by the NRC would continue in effect as State of Vermont licenses until the licenses expire or are replaced by State-issued licenses.

(d) Based on the draft staff assessment, tihe draft NRG-staff assessment finds that the Vermont Department of Health's, Office of Radiological Health's Radioactive Materials Program is adequate to protect public health and safety and is compatible with the NRC's regulatory program for the regulation of Agreement materials. Hmvever, it should be noted that NRG staff identified with the exception of several sections of the final Vermont Radioactive Materials Rregulations that were either not compatible or needed additional editorial changes. By letter dated May 10, 2019, the NRC staff described these compatibility and editorial issues, and requested that the Vermont Department of Health commit in writingreply within 60 days with a commitment to make the described regulatory changes as soon as practicable (ADAMS Accession No. ML19102A160). The resolution of these comments does not interfere with the NRC staff's processing of Vermont's Agreement State Application. Therefore, by the proposed effective date of the Agreement. the NRC anticipates that the State of Vermont will have committed to adopting an adequate and compatible set of radiation protection regulations that apply to byproduct. source, and special nuclear materials in quantities not sufficient to form a critical mass.

Summary of the Draft NRC Staff Assessment of the State of Vermont's Program for the Regulation of Agreement Materials The NRC staff has examined the State of Vermont's request for an Agreement with respect to the ability of the State's radiation control program to regulate Agreement materials. The examination was based on the Commission 's Policy Statement, "Criteria 6

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 at

.48 FR 33376, July 21, 1983) (Policy Statement), and the Office of Nuclear Material Safety and Safeguards Procedure SA-700, "Processing an Agreement" (available at https://scp.nrc.gov/procedures/sa700.pdf and https://scp.nrc.gov/procedures/sa700 hb.pdf). The Policy Statement has 28 criteria that serve as the basis for the NRC staff's assessment of the State of Vermont's request for an Agreement. The following section will reference the appropriate criteria numbers from the Policy Statement that apply to each section.

(a) Organization and Personnel. The NRC staff reviewed these areas under Criteria 1, 2, 20, and 24 in the draft staff assessment. The State of Vermont's proposed Agreement materials program for the regulation of radioactive materials is called the "Radioactive Materials Program." The Radioactive Materials Program will be located within the existing Office of Radiological Health of the Vermont Department of Health .

The educational requirements for the Radioactive Materials Program staff members are specified in the State of Vermont's personnel position descriptions and meet the NRC criteria with respect to formal education or combined education and experience requirements. All current staff members hold a Master's Degree in either environmental science or radiologic and imaging sciences. All have training and work experience in radiation protection . Supervisory level staff have at least 20 years of working experience in radiation protection.

The State of Vermont performed an analysis of the expected workload under the proposed Agreement. Based on the NRC staff review of the State of Vermont's analysis, the State has an adequate number of staff to regulate radioactive materials under the terms of the proposed Agreement. The State of Vermont will employ the 7

equivalent of 1.25 full-time equivalent professional and technical staff to support the Radioactive Materials Program.

The State of Vermont has indicated that the Radioactive Materials Program has an adequate number of trained and qualified staff in place. The State of Vermont has developed qualification procedures for license reviewers and inspectors that are similar to the NRC's procedures. The Radioactive Materials Program staff has accompanied the NRC staff on inspections of NRC licensees in Vermont and participated in licensing training at NRC's Region I with Division of Nuclear Materials Safety staff. The Radioactive Materials Program staff is also actively supplementing ~its experience through direct meetings, discussions, and facility visits with the NRC licensees in the State of Vermont and through self-study, in-house training, and formal training .

Overall, the NRC staff concluded that the Radioactive Materials Program staff identified by the State of Vermont to participate in the Agreement materials program l=lave-has sufficient knowledge and experience in radiation protection, the use of radioactive materials, the standards for the evaluation of applications for licensing, and the techniques of inspecting licensed users of Agreement materials.

(b) Legislation and Regulations. The NRC staff reviewed these areas under Criteria 1-15, 17, 19, and 21-28 in the draft staff assessment. The Vermont Statutes Annotated, VL STAT. ANN. tit. 18, §§ 1651 through 1657 provide the authority to enter into the Agreement and establish the Vermont Department of Health as the lead agency for the State's Radioactive Materials Program. The Department has the requisite authority to promulgate regulations under the Vermont Statutes Annotated,-VSA VT.

STAT. ANN. tit. 18, §§ 1653(b}(1) for protection against radiation. The Vermont Statutes_

Annotated, VSA-VT. STAT. ANN. tit. 18, §§ 1651 through 1657 also provide the Radioactive Materials Program the authority to issue licenses and orders; conduct inspections; and enforce compliance with regulations, license conditions, and orders.

8

The Vermont Statutes Annotated, VT. STAT. ANN. tit. 18, \£SA-§§ 1654 requires licensees to provide access to inspectors.

The NRC staff verified that the State of Vermont adopted by reference the relevant NRC regulations in parts 19, 20 , 30, 31 , 32, 33, 34, 35, 36, 37, 39, 40, 61 , 70, 71, and 150 of title 10 of the Code of Federal Regulations (10 CFR), into the Vermont Radioactive Materials Rule, Chapter 6, Subchapter 5. During its review, the NRC staff identified several sections of the final Vermont Radioactive Materials ~regulations that are not compatible or need editorial changes. By letter dated May 10, 2019, the NRC staff described these compatibility and editorial issues, and requested that the Vermont Department of Health commit@Q!y_within 60 days with a commitment to make the described regulatory changes as soon as practicable. _The resolution of these comments does not interfere with the NRC staff's processing of Vermont's Agreement State Application. Therefore, on the proposed effective date of the Agreement, the NRC anticipates that the State of Vermont will have committed to adopting an adequate and compatible set of radiation protection regulations that apply to byproduct materials, source material.. and special nuclear material in quantities not sufficient to form a critical mass. The NRC staff also verified that the State of Vermont will not attempt to enforce regulatory matters reserved to the Commission.

(c) Storage and Disposal. The NRC staff reviewed these areas under Criteria 8, 9a , and 11 in the draft staff assessment. The State of Vermont has adopted NRC compatible requirements for the handling and storage of radioactive material, including -

regulations equivalent to the applicable standards contained in 10 CFR parts 20 and 61 ,

which address the general requirements for waste disposal, and part 61 , which addresses waste classification and form , respectively. These regulations and both of which are applicable to all licensees covered under this proposed Agreement.

9

(d) Transportation of Radioactive Material. The NRC staff reviewed this area under Criteria 10 in the draft staff assessment. The State of Vermont has adopted compatible regulations to the NRC regulations in 10 CFR part 71. Part 71 contains the requirements licensees must follow when preparing packages containing radioactive material for transport. Part 71 also contains requirements related to the licensing of packaging for use in transporting radioactive materials.

(e) Recordkeeping and Incident Reporting . The NRC staff reviewed this area under Criteria 1 and 11 in the draft staff assessment. The State of Vermont has adopted compatible regulations to the sections of the NRC regulations that specify requirements for licensees to keep records and to report incidents or accidents involving the State's regulated Agreement materials.

(f) Evaluation of License Applications . The NRC staff reviewed this area under Criteria 1, 7, 8, 9a, 13, 14, 15, 20, 23.. and 25 in the draft staff assessment. The State of Vermont has adopted compatible regulations to the NRC regulations that specify the requirements a person must meet to obtain a license to possess or use rad ioactive materials. The State of Vermont has also developed licensing procedures and adopted NRC licensing ,guides for specific uses of radioactive material that contain guidance for use by the program staff when evaluating license applications.

(g) Inspections and Enforcement. The NRC staff reviewed these areas under Criteria 1, 16, 18, 19, and 23 in the draft staff assessment. The State of Vermont has adopted a schedule providing for the inspection of licensees as frequently as, or more frequently than , the inspection schedule used by the NRC. The State of Vermont's Radioactive Materials Program has adopted procedures for the conduct of inspections, reporting of inspection findings, and reporting inspection results to the licensees.

Additionally, the State of Vermont has also adopted procedures for the enforcement of regulatory requirements.

10

{h) Regulatory Administration . The NRC staff reviewed this area under Criterion 23 in the draft staff assessment. The State of Vermont is bound by requirements specified in its State law for rulemaking, issuing licenses, and taking enforcement actions. The State of Vermont has also adopted administrative procedures to assure fair and impartial treatment of license applicants. The State of Vermont law prescribes standards of ethical conduct for State employees.

(i) Cooperation with Other Agencies. The NRC staff reviewed this area under Criteria 25, 26, and 27 in the draft staff assessment. The State of Vermont law provides for the recognition of existing NRC and Agreement State licenses and the State has a process iri place for the transition of active NRC licenses. Upon the effective date of the Agreement, all active NRC radioactive materials NRG-licenses issued to facilities in the State of Vermont will be recognized as Vermont Department of Health licenses.

The State of Vermont also provides for "timely renewal. " This provision affords the continuance of licenses for which an application for renewal has been filed more than 30 days prior to the date of expiration of the license. NRC licenses transferred while in timely renewal are included under the continuation provision.

The State of Vermont regulations, in Vermont Radioactive Materials Rule Chapter 6, Subchapter 5, which adopts NRG regulations 10 CFR §§ 30.12, 40.11 and 70.11 by reference, provide exemptions from the State's requirements for the NRC and the U.S. Department of Energy contractors or subcontractors; the exemptions must be authorized by law and determined not to endanger life or property and to otherwise be in the public interest. The proposed Agreement commits the State of Vermont to use its best efforts to cooperate with the NRC and the other Agreement States in the formulation of standards and regulatory programs for the protection against hazards of radiation , and to assure that the State's program will continue to be compatible with the Commission's program for the regulation of Agreement materials. The proposed 11

Agreement specifies the desirability of reciprocal recognition of licenses, and commits the Commission and the State of Vermont to use their best efforts to accord such reciprocity. The State of Vermont would be able to recognize the licenses of other jurisdictions by general license.

Staff Conclusion Section 274d. of the AEA provides that the Commission shall enter into an Agreement under Section 27 4b. with any State if:

(a) The Governor of #:le-that State certifies that the State has a program for the control of radiation hazards adequate to protect the public health and safety with respect to the Agreement materials within the State.. and that the State desires to assume regulatory responsibility for the Agreement materials; and (b) The Commission finds that the State program is in accordance with the requirements of Subsection 2740. and in all other respects compatible with the Commission's program for #:le-regulation of such materials, and that the State program is adequate to protect the public health and safety with respect to the materials covered by the proposed Agreement.

The NRC staff has reviewed the proposed Agreement, the certification of Vermont Governor Scott, and the supporting information provided by the Radioactive Materials Program of the Vermont Department of Health . Based upon this review, the NRC staff concludes that the State of Vermont Radioactive Materials Program satisfies the Section 274d . criteria as well as the criteria in the Commission's Policy Statement "Criteria for Guidance of States and NRC in Discontinuance of NRC Regulatory Authority and Assumption Thereof by States Through Agreement." The NRC staff also concludes that the proposed State of Vermont program to regulate Agreement materials, as comprised of statutes, regulations, procedures, and staffing .. is compatible with the Commission's program.. and is adequate to protect the public health and safety with 12

respect to the materials covered by the proposed Agreement. Therefore, the proposed Agreement meets the requirements of Section 274 of the AEA.

Dated at Rockville, Maryland, this XX th day of June, 2019.

For the Nuclear Regulatory Commission.

Andrea L. Kock, Director, Division of Materials Safety, Security, State, and Tribal Programs, Office of Nuclear Material Safety and Safeguards APPENDIX A AN AGREEMENT BETWEEN THE UNITED STATES NUCLEAR REGULATORY COMMISSION AND THE STATE OF VERMONT FOR THE DISCONTINUANCE OF CERTAIN COMMISSION REGULATORY AUTHORITY AND RESPONSIBILITY WITHIN THE STATE PURSUANT TO SECTION 274 OF THE ATOMIC ENERGY ACT OF 1954, AS AMENDED 13

WHEREAS, The United States Nuclear Regulatory Commission (hereinafter referred to as "the Commission") is authorized under Section 27 4 of the Atomic Energy Act of 1954, as amended, 42 U.S.C. Section 2011 et seq. (hereinafter referred to as "the Act") , to enter into agreements with the Governor of the State of Vermont (hereinafter referred to as "the State") providing for discontinuance of the regulatory authority of the Commission within the State under Chapters 6, 7, and 8, and Section 161 of the Act with respect to byproduct materials as defined in Sections 11 e.( 1), (3),

and (4) of the Act, source materials, and special nuclear materials in quantities not sufficient to form a critical mass; and, WHEREAS, The Governor of the State is authorized under VT. STAT. ANN.

!iL_18 V.S.A. § 1653 to enter into this Agreement with the Commission; and,

. WHEREAS, The Governor of the State certified on April 11, 2019, that the State has a program for the control of radiation hazards adequate to protect the public health and safety with respect to the materials within the State covered by this Agreement, and that the State desires to assume regulatory responsibility for such materials; and, WHEREAS , The Commission found on [date] that the program of the State for the regulation of the materials covered by this Agreement is compatible with the -

Commission's program for the regulation of such materials and is adequate to protect the public health and safety; and, WHEREAS , The State and the Commission recognize the desirability and importance of cooperation between the Commission and the State in the formulation of standards for protection against hazards of radiation and in assuring that State and 14

Commission programs for protection against hazards of radiation will be coordinated and compatible; and, WHEREAS, The Commission and the State recognize the desirability of the reciprocal 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 Act; NOW, THEREFORE, It is hereby agreed between the Commission and the Governor of Vermont acting on behalf of the State as follows:

ARTICLE I Subject to the exceptions provided in Articles II, IV, and V, the Commission shall discontinue, as of the effective date of this Agreement, the regulatory authority of the Commission in the State under Chapters 7 and 8, and Section 161 of the Act with respect to the following materials:

1. Byproduct material as defined in Section 11 e.( 1) of the Act;

2. Byproduct material as defined in Section 11 e.(3) of the Act;

3. Byproduct material as defined in Section 11e.(4) of the Act;

4. Source material; and

5. Special nuclear material, in quantities not sufficient to form a critical mass.

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

A. The regulation of byproduct material as defined in Section 11 e.(2) of the Act; 15

B. The regulation of the land disposal of byproduct, source, or special nuclear material received from other persons; C. The evaluation of radiation safety information on sealed sources or devices containing byproduct, source, or special nuclear material and the registration of the sealed sources or devices for distribution, as provided for in regulations or orders of the Commission; D. The regulation of the construction, operation and decommissioning of any production or utilization facility or any uranium enrichment facility; E. 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; F. The regulation of the disposal into the ocean or sea of byproduct, source, or special nuclear material waste materials as defined in tfle.-regulations or orders of the Commission; G. 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 te-be so disposed without a license from the Commission; and H. The regulation of activities not exempt from Commission regulation as stated in 10 CFR Part 150.

ARTICLE Ill With the exception of those activities identified in Article II, paragraph fmu:.-Q_through paragraph eigAtH , this Agreement may be amended , upon application by the State and approval by the Commission to include one or more of the additional activities 16

specified in Article II , paragraph GA&-A through tAfeeC , whereby the State may then exert regulatory authority and responsibility with respect to those activities.

ARTICLE IV Notwithstanding this Agreement, the Commission may from time to time by rule ,

regulation , or order, require that the manufacturer, 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 for licensing issued by the Commission.

ARTICLE V This Agreement shall not affect the authority of the Commission under Subsection 161 b. or 161 i. of the Act to issue rules, regulations , or orders to protect promote the common defense and security, to protect restricted data, or to guard against the loss or diversion of special nuclear material.

ARTICLE VI The Comm ission will cooperate with the State and other Agreement States in the formulation of standards and reg_ulatory programs of the State and the Commission for protection against hazards of radiation and to assure that Commission and State programs for protection against hazards of radiation will be coord inated and compatible .

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

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

ARTICLE VIII The Commission , upon its own initiative after reasonable notice and opportunity for hearing to the State or upon request of the Governor of Vermont, 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 the public health and safety, or (2) the State has not complied with one or more of the requirements of Section 27 4 of the Act.

The Commission may-atse, pursuant to Section 274j. of the Actafter notifying the Governor, temporarily suspend all or part of this Agreement without notice or hearing if, in the judgment of the Commission, an emergency situation exists with respect to any Agreement material creating danger which requiring requires immediate action to protect the health or safety of persons either within or outside of the State, public health and safety and the State has failed to take steps necessary &tef)sto contain or eliminate the 18

cause of the danger within a reasonable time after the situation arose. The Commission shall periodically review actions taken by the State under this Agreement to ensure compliance with Section 274 of the Act, which requires a State program to be adequate to protect the public health and safety with respect to the materials covered by this Agreement and to be compatible with the Commission's program .

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

Done at [location] this [date] day of [month] , 2019.

For the Nuclear Regulatory Commission.

Kristine L. Svinicki, Chairman Done at [location] this [date] day of [month], 2019.

For the State of Vermont.

Philip B. Scott, Governor 19

DAW Edits to SECY-19-0058 Enclosure 2 DRAFT STAFF ASSESSMENT OF THE PROPOSED VERMONT PROGRAM FOR THE REGULATION OF AGREEMENT MATERIALS AS DESCRIBED IN THE REQUEST FOR AN AGREEMENT This assessment examines the proposed State of Vermont Program to enter into an agreement with the U.S. Nuclear Regulatory Commission (NRC) to regulate the possession, use, and disposal of radioactive materials subject to the Atomic Energy Act of 1954 (Act), as amended .1 This assessment was performed using the criteria in the Commission's policy statement "Criteria for Guidance of States and NRC in Discontinuance of NRC Regulatory Authority and Assumption Thereof by States Through Agreement" (referred to below as the "criterion or criteria)2 using the Office of Nuclear Material Safety and Safeguards (NMSS) Procedure SA-700, "Processing an Agreement. " Each criterion , and the staff assessment related thereto, is addressed separately below.

OBJECTIVES

1. Protection. A State regulatory program shall be designed to protect the health and safety of the people against radiation hazards.

The State of Vermont's proposed Agreement State Program for the regulation of radioactive materials would be located within the Office of Radiological aRJ.

Toxioologioal SoienoesHealth Program, which is an organizational unit in the Vermont Department of Health (the Department). The Department is designated as the radiation control agency.

The Department has the statutory authority to establish the Vermont Agreement State Program in the Vermont Statutes Annotated (VSA) Title 18 Health, Chapter 32: Ionizing and Nonionizing Radiation Control (VSA §§ 1651 through 1657). The authorities to issue, amend, suspend , or revoke licenses; place conditions and to issue orders; and assess administrative penalties is vested by the Vermont Statutes, 18 VSA §§ 1653, 1655 and 1656. The authorities for the Department to adopt regulations is provided in the Vermont Statute 18 VSA §§ 1652(c) and 1653(b)(1).

The NRC staff verified that the design of the State of Vermont's Agreement State Program with respect to the distribution of regulatory responsibilities among the program staff assigns responsibility for each program element to a unit of the Department and is similar to designs used successfully in other Agreement States.

The staff concludes that this criterion is satisfied.

References:

Letter dated April 11, 2019, from Governor Scott to Chairman Svinicki, request for an Agreement, Section on Statutory Authority and Program Organization, and add itional related correspondence between the NRC and the State (Agencywide 1 According to paragraph (a) of Section 274, the radioactive materials subject to the Act are byproduct, source and special nuclear material. These are also referred to as agreement materials.

2 NRC Statement of Policy was published in the Federal Register, on January 23, 1981 (46 FR 7540-7546), a correction was published on July 16, 1981 (46 FR 36969), and a*revision of Criterion 9 was published in the Federal Register, on July 21 , 1983 (48 FR 33376) .

Enclosure 2 L_