ML20141C784
| ML20141C784 | |
| Person / Time | |
|---|---|
| Issue date: | 12/17/1985 |
| From: | Cunningham G NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | James Keppler NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION III) |
| Shared Package | |
| ML20140C976 | List: |
| References | |
| NUDOCS 8512310027 | |
| Download: ML20141C784 (7) | |
Text
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!m a nes oy'o UNITED STATES
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/ .E g NUCLEAR REGULATORY COMMISSION WASHINGTON, D. C. 20555 *
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,[ MEMORANDUM FOR: James G. Keppler i Regional Administrator
/ Region III
' FROM:
Guy H. Cunningham, III Executive LeSal Director
SUBJECT:
RECENTLY ADOPTED ILLIN0IS POLLUTION CONTROL BOARD REGULATIONS ESTABLISHING STANDARDS FOR PROTECTION AGAINST RADIOLOGICAL AIR POLLUTANTS In response to your request of Novem'oer 21, 1935, we have reviewed the radiological air poliutant regulations recently adopted by the Illinois Pollution Control Board in order to determine whether these regulations presentany preemption problems. For the reasons given below, it is cur opinion that the Illinois regulations do not present a Federal preemption problem insofar as they constitute a bona fide exercise of State authority, either pursuant to the state's traditional police powers or pursuant to delegated authority from EPA, and fall within the purview of Sec. 116 of the Clean Air Act, as amended.
By way of introduction and before commenting on the text of the Illinois regulations, a brief review of the applicable provisions of the Clean Air Act and the Atcmic Energy Act of 1954, as amended, is in order. .
The Clean Air Act Amendments of 1977 authorhed the Environmental Protection Agency (EPA) to establish emission standards for all radioactive pollutants, including source, byproduct and special nuclear materials and nuclear-related air emissions from nuclear power plants.
In 1980, as required by i 122(c)(2) of the Clean Air Act, EPA and NRC entered into a Memorandum of Understanding 1/ which defined the respective roles of the two agencies for regulating radionuclide air emissions from-sources and facilities licensed by NRC and established a framework of cooperation for avoiding unnecessary duplication of effort and for conserving resources in estdlishing, implementing and enforcing standards for airborne radionuclide emissions from sources and facilities licensed by NRC. Although some of the provisions of this MOU have been rendered obsolete by the passage of time, the MOU provides that with respect te the implementation and enforcement of EPA standards:
1/ Regulation of Radionuclide Emissions; Memorandum of Understandin -
45 FR 72980, November 3,1980.
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- _....._. l DEC 17 1985 "NRC, using its own regulatory program and statutory and regulatory authorities, shall have the primary role in implementing and enforcing EPA's Clean Air Act radionuclide standards for sources and facilities licensed by NRC."
In 1985, in the exercise of its Clean Air Act authority, EPA promulgated )
40 CFR Part 61 2/ which established national air emission standards for radio- )
nuclide emissioiis from NRC-licensed facilities, DOE facilities and certain 1 other Federal facilities. l The Clean Air Act gives states a major role in the astablishment, imple- -l mentation and enforcement of air emission standards. Under il 113(d)(2) and !
116 of the Clean Air Act, states are authorized to adopt and enforce more stringent air emission limitations and more expeditious compliance schedules than those established by EPA. Unlike i 274 of the Atomic Energy Act which is based on the premise that cartain atomic energy materials shall either be ,
regulated by the Federal government or by the states but not by both, the !
Clean Air Act permits the Federal government and the states to exercise l concurrent regulatory authority over radioactive air pollutants. For example, i 112(d) of the Clean Air Act authorizes States to develop proce-dures for implementing and enforcing emission standards for hazardous air
_ pollutants from stationary sources located in the State and empowers the EPA l Administrator, if the Administrator finds the State procedure is adequate, to delegate to that State any authority which the Administrator has to imple-ment and enforce such standards. Section 112(d)(2) makes clear, however, that delegation of enforcement authority to a State does not deprive the EPA Administrator of any statutory power to take enforcement action. Sec- m.
I tion 122(c)(3) prescribes procedures to be used when an NRC facility is unable to comply with a state air emission standard safely. Under these procedures, NRC may override state standards which present a significant !
safety hazard, subject to Presidential review.
In 1977, in the er.ercise of certain Atomic Energy Act functions relating to
! the establishment of generally applicable environmental standards for the protection of the general environment from radioactive material which were transferred to EPA by Reorganization Plan No. 3 of 1970, 3/ EPA promulgated 2/ 50 FR 5190-5200, February 6, 1985.
~3/ In this connection, see Auct.st 1973 AEC-EPA Memorandum of Understanding
- with respect to AEC-Lnow NitC] Licensed Facilities (38 FR 24936, Septem-
! ber 11,1973). -The purpose of this MOU was to fix an appropriate interfac for the complementary responsibilities of EPA and NRC in the areas of environmental protection and the control of radiation
- - effects in order to facilitate useful cooperation and avoid unnecessary i (FOOTNOTECONTINUEDONNEXTPAGE)
DEC 17 1985 40 CFR Part 190 which established environmental radiation protection standards for the uranium fuel cycle.
The Atomic Energy Act of 1954, as amended, prescribes the conditions under which states may assume responsibility for regulating source material, byproduct material and special nuclear material in quantities less than a critical mass. Until the statutory requirements for execution of a 6 274b Federal-state agreement have been satisfied, regulation of these materials for the purpose of protecting the radiological health and safety of the peMic and preserving the common defense and security remains the exclusive responsibility of the Federal government. Despite the execution of a 5 274b agreement, states are precluded by statute from assuming regulatory 1 authority over the construction and operation of production and utilization I facilities. These remain subject to the iurisdiction of the NRC. Unlike the Clean Air Act, the Atomic Energy Act does not contemplate dual or concurrent jurisdiction. The Atomic Energy Act does contain one mechanism which permits states to share in the regulatory responsibilities of the NRC.
Under 65 274i and 161f of the Atomic Energy Act, the Comission is 1 authorized in carrying out its licensing and regulatory responsibilities 1 to enter into agreements with any State or group of States to perform j inspections or other functions for the Commission on a cooperative basis as !
the Comission deems desirable and appropriate. In April 1984, Illinois and NRC entered into an " umbrella" Memorandum of Understanding which provides principles of cooperation between the State and NRC in areas of concern to the State, including, among others, siting of nuclear facilities and confirmatory radiological and environmental monitoring around nuclear i facilities. In July 1984, Illinois and NRC entered into Subagreement I l which pertains to low-level radioactive waste inspection and outlines mutually acceptable procedures whereby the State may perform inspection functions for and on behalf of the Commission at certain NRC reactor and materials licensees' facilities which generate low-level radioactive waste.
(See 49 FR 20586, May 15, 1984 and 49 FR 27861, July 6, 1984.)
Part 1000 of the regulations of the Illinois Pollution Control Board provides for the regulation of radiological air pollutants and was adopted by the Board pursuant to its authority under Title VI-A of the Illinois Environmental Protectico Act (Ill. Rev. Stat. 1983, ch. 111-1/2, par.
1025(b)). The Illinois regulations are applicable to radiological air pollutants associated with materials and activities under licenses issued by the U.S. Nuclear Regulatory Comission, including NPC-licensed nuclear power plants. The Illinois regulations are based partly on certain (FOOTNOTE CONTINUED FROM PREVIOUS PAGE) duplication of regulatory effort. See also Memorandum of December 7, 1973 from Roy L. Ash to Administrator Trdiii and Chairman Ray on "Respon-sibility for setting radiation protection standards."
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DEC l l 1985 provisions in 10 CFR Part 20 and partly on EPA's " Environmental Radiation Protection Standards for Nuclear Power Operations" set out in 40 CFR Part 190. These EPA regulations prescribe environmental standards for the uranium fuel cycle and were issued by EPA under its Atomic Energy Act authority to establish general environmental standards.
Portions of the Illinois regulations incorporate the ALARA concept (f 1000.102(b)), establish limits for concentrations of radioactive material in air in unrestricted areas (51000.302) and set limits on the radiation
, doses which may be received by members of the public in the general environ-
- ment from the operation of the uranium fuel pycle (99 1000.401-1000.403).
Generally speaking, these provisions are consistent with the provisions of 10 CFR Part 20 and 40 CFR Part 190 on which they are based. Although duplicative, the requirements for the submission of records in i 1000.501 do not appear to be particularly burdensome, except for the catchall provi- '
{ sfon in paragraph (f). The requirement for the notification of incidents, (
- i 1000.502, is more stringent than the comparable provisions in 10 CFR Part 20 (see 10 CFR 99 20.403 and 20.405) in that instead of providing for l graded reporting of incidents based on their significance and reverity,
, 9 1000.502 of the Illinois regulations requires that any incident or con-i dition which may have caused or threatens to cause emissions or radiation levels in excess of those allowed under Part 1000 shall be immediately reported to the Illinois Department of Nuclear Safety. Section 1000.301, which establishes permissible radiation levels in air in unrestricted areas, is inconsistent with li 1000.401-1000.403 of the Illinois regulations which are based on 40 CFR Part 190 and may present practical problems in terms of implementation. The source of the confusion may lie in the origin of 1 5 1000.301 which, apparently, was derived from 10 CFR H 20.105. Unlike 9 1000.301, ! 20.105 has as its principal purpose the control of exposures
! to radiation levels in unrestricted areas from external sources of radia-i tion, not the control of exposures from airborne radioactivity released to j unrestricted areas which is addressed in 6 20.106.
, The general principles of Federal preemption were recently sumarized in the October 18, 1985 decision of the Atomic Safety and Licensing Appeal Board in l Long Island Lichting Company (Shoreham Nuclear Power Station, Unit 1), Docket No. 50-322-OL-1, ALAB-818, slip opinion at pp. 9-21. In determining whether Federal laws are preemptive, it must be ascertained whether Congress acted "in such a manner as to exclude the States from asserting concurrent juris-diction over the same subject matter." Northern States Power Co. v. Minnesota, 447 F.2d 1143, 1146 (8th Cir. 1971), aff'd mem. 405 U.S. 1035 (1972). Federal ;
preemption may be established in one of two ways. First, state laws and regulations are preempted if they intrude upon an area reserved exclusively i to the Federal government; such Federal exclusivity may be demonstrated either by explicit statutory language or by the creation of a " scheme of federal regulation so pervasive as to make reasonable the inference that
DEC 17 1985 l-l
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l When the Federal government com-
> Congress pletely occupiesleft noaroom giventofield supplement or an ident it." 4]ifiable portion of it, the test of ',
preemption is whether "the matter on which the State asserts the right to act is in any way regulated by the Federal Act." 5/ Secondly, State laws and regu-lations may be preempted if they "actually conflict" with Federal law, i.e.,
where compliance with both Federal and State regulations is a " physical impossibility" or where the State regulations stand as "an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." 6/
! In applying the test of Federal exclusivity, the Supreme Court has stated l that althouoh the Federal Government has occupied the entire field of f nuclear safety concerns, certain limitad powers, among them the authority to regulate radioactive air pollutants from nuclear power plants, have been expressly ceded to the States. 7/ Thus, in accordance with the provisions of the Clean Air Act, Illinois Ts empowered to regulate radioactive air
! pollutants, including those which prior to the enactment of the Clean Air Act Amendments of 1977 could only be regulated by the NRC in accordance with the provisions of the Atomic Energy Act of 1954, as amended. Under the Clean Air Act, as amended, Illinois may either promulgate regulations in the exercise of its traditional police powers or may do so pursuant to the authority delegated to it by EPA. Moreover, Illinois is authorized to impose more stringer.t radioactive emission standards than those promulgated by NRC l and in the valid exercise of this authority, it may even prevent the con-l struction or operation of a nuclear power plant. 8]
l Based on an examination of the applicable provisions of the Clean Air Act, y the Atomic Energy Act of 1954, as amended, and the text of the Illinois i
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! 4/ Pacific Gas & Electric Co. v. State Energy Resources Conservation and
! Development Commission, 461 U.S. 190, 203-204 (1983).
! 5/ Id., 461 U.S. at 213.
6/ Id., 461 U.S. at 204.
7/ Id., 461 U.S. at 212 and n. 25, citing Clean Air Act Amendments of Tf77, i 122, 42 U.S.C. I 7422.
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See ~-
Id., concurring ConsoTidated Edison opinion of Justice Co. of New York, Inc. Blackmun, 461 (Indian Point U.S. at Station, 228, Unit 2 citing), 1 ALAB-453, 7 NRC 31,.34 and n. 13 (1978). Accord, Pacific Legal Founda- '
tion v. State Energy Resources Conservation 8 Development Comission, E9 F.2d 903, 927 and n. 39 (9th Cir.1981), aff'd sub nom Pacific Gas
& Electric Co. v. State Enercy Resources Conservation and Development Commission, 461 U.S.190 (19E 3).
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regulations, it appears that the Illinois regulations are likely to with-stand a challenge on the. grounds of Federal preemption.
First, it is clear that Congress explicitly provided for concurrent State and Federal regulation of radioactive air emissions in the 1977 Clean Air Act amendments, thus leaving no room for an argument that the Federal government has exclusive jurisdiction to regulate in this sphere. Secondly, the Illinois regulations do not appear to present an " actual conflict" with Federal law. Although more stringent insofar as the reporting of incidents is concerned, such greater stringency is permitted under the Clean Air Act amendments. Moreover, the Illinois regulations as promulgated are generally consistent with the regulations of the NRC, and do not appear to create a situation in which it is impossible to comply with both Federal and state regulations. Further, rather than presenting an obstacle to the achievement of Congressional purposes or objectives, the Illinois regulations stand as evidence of the accomplishment and execution of those purposes and objectives as expressed by Congress in the provisions of the Clean Air Act Amendments of 1977.
This is not to say that persons who are subject to both the Illinois regu-lations and the NRC regulations may not experience difficulty or conflict in attempting to comply with the requirements of both sets of regulations.
However, in the absence of information concerning the manner in which Illinois plans to enforce its regulations, no reascm appears to exist at this time which would demonstrate that J preemption problem exists. 9/ In this connection, note should be taken of i 122(c)(3) of the Clean Air Act which prescribes procedures for resolving conflicts between NRC and EPA or a State. .
Under these procedures, NRC may override State standards which present a significant safety hazard, subject to Presidential review.
For the foregoing reasons, it is our view that the Illinois radioactive air pollutant regulations do not present a Federal preemption problem.
9/ In this regard, it may be observed that if Illinois attempts to amend or enforce its regulations in such a manner as to demonstrate an improper purpose, such as if its actions are not reasonably related to the purposes of the Clean Air Act, a successful Federal preemption argument might be constructed. Cf. Illinois v. General Electric Co.,
683 F.2d 206, 215-16 (7th Cir. 1W 2), cert. denied, 461 U.S. 913 (1983)
(State of Illinois' ban on interstate shipment of spent fuel intended for storage within the State did not constitute a " rational pollution-control measure," and was not saved from Federal preemption by 9 116 of the Clean Air Act).
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DEC 17 1985 This response has been coordinated with the Office of State Programs which concurs in the views expressed.
Original signed by l Guy H. Cunningham, ll! I Guy H. Cunningham, III Executive Legal Director DISTRIBUTION:
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