ML20235A991

Recommends Commission Publish Policy Statement on Cooperation W/States at Commercial Plants & Other Nuclear Production & Utilization Facilities.Commenter Ltrs & Draft Fr Notice Encl

ML20235A991
Person / Time
Issue date:	12/07/1988
From:	Parler W NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:
References
TASK-PIA, TASK-SE SECY-88-334, NUDOCS 8901050387
Download: ML20235A991 (108)

Text

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December 7, 1988 SECY-88-334 For: The Commis N

! From: William C. Parler, General Counsel

Subject:

POLICY STATEMENT ON COOPERATION WITH STATES AT COMMERCIAL NUCLEAR POWER PLANTS AND OTHER NUCLEAR PRODUCTION AND UTILIZATION FACILITIES (COMLZ-9/9A/9B)

Purpose:

To provide the Comission with a summary of and NRC response to public comments and to recommend that the Commission publish the policy statement as a final policy statement without further change.

Background:

On May 24,'1988, the Secretary of the Commission advised the staff by memorandum (COMLZ-9/9A/9B) that the Commission had approved the issuance of the subject policy statement by publication in the Federal Register with a request for public comment. 'The Commission also directed the Office of the General Counsel to ". . . analyze the public comments and provide the Commission with recommendations on the need for any changes following the public comment period." This paper responds to that instruction.

The policy statement was published in the Federal Register on June 13, 1988 for public comment (53 FR 21981-21983). Twenty-eight comments were received. A list of the commenters and copies of the comment letters are provided in Appendix A. Fourteen comments were subreitted by members and representatives of the nuclear power industry, including electric utilities and their counsel, thirteen by various state offices and one from a public interest group. Two states, Ohio and Minnesota, expressed an active interest in entering a joint inspection procrum with NRC. Although some of the comments were submitted after July 13, 1988, the expiration date of the comment period, all comments have been considered.

Contact:

J. R. Mapes, 0GC 492-1642 l@ 5 CQ -

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-2 Discussion: Based on the number ar.d content of the comments, the policy statement has not generated unusual interest. State commenters were generally supportive of the concept of participating in NRC inspections but 3 tended to be critical of various aspects of the policy as too restrictive regar' ding the role'of the states.

Although industry commenters were unitormly opposed to independent state inspections of. commercial nuclear power plants:and were generally opposed to am state role in NRC inspections, there appears to be a consensus am'ong all commenters that states do have legitimate concerns in being kept well-informed of NRC's regulatory activities with respect to commercial nuclear power plants.

Appendix B contains a summary of the public coments

- and the NRC response. .The' comments received from state offices are grouped together and summarized separately from the comments received from industry.

Specific recommendations for revising the policy statement made by state commenters are. set out on pp.

7 - 8 of Appendix B; specific recommendations made by industry commenters can be found on pp. 18 - 20 of Appendix B. These recommendations are' addressed in the NRC response which begins on p. 20 of Appendix B and is organized under the following general to' pics:

legal issues; implementation of the policy statement -

effect on NRC licensees; communication through state liaison officers; state participation in NRC inspections; opportunity for public comment on NRC-State instruments of cooperation relating to inspections at commercial nuclear power plants. For the reasons given in the NRC response, OGC nas concluded that no change need be made in the text of the policy statement. ,

Coordination: The Offices of Governmental and Public Affa1rs, Nuclear Reactor Regulation and Nuclear Material Safety and Safeguards concur.

Recommendation: That the Commission: i (1) adopt the policy statement noticed for comment as a final statement of policy to be effective in its entirety on the date of republication in the Federal

Register.

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l (2) approve the draft Federal Register notice set out l in Appendix C for publication in the Federal Register.

(Note: The draft Federal Register notice includes the l summary of comments and NRC response as set out in Appendix B.)

/ O/2.[fo William C. Parler General Counsel

Enclosures:

Appendix A - List of commenters and comment letters.

Appendix B - Summary of comments and NRC response.

Appendix C - Draft Federal Register Notice.

Commissioners' comments or consent should be provided directly to the Office of the Secretary by c.o.b. Friday, December 23, 1988.

Commission Staff Office comments, if any, should be submitted to the Commissioners NLT Friday, December 16, 1988, with an information copy to the Office of the Secretary. If the paper is of such a nature that it requires additional time for analytical review and comment, the Commissioners and the Secretariat should be apprised of when comments may be expected.

This paper is tentatively scheduled for affirmation at an Open Meeting during the Week of January 2, 1989. Please refer to the appropriate Weekly Commission Schedule, when published, for a specific date and time.

DISTRIBUTION:

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. . APPENDIX A LIST OF COMMENTERS

1. Iowa Departme'nt of Public Health, Iowa State Liaison Officer

'2. Ohio Citizens-for Responsible Energy Inc. (OCRE)

3. Iowa Department of Public Health, Chief Bureau of Radiological Health

4. NuclearManagementandResourcesCouncil..Inc.(NUMARC). -

5. New York Public Service Comission

6. Yankee Atomic Electric Company

7. Energy Facility Site Evaluation Council, State of Washington-

8. ..Wisconsin Electric Power Company

9. Bishop, Cook, Purcell & Reynolds

10. Illinois Department t,f Nuclear Safety

11. Long Island Lighting Company

12. Consumers Power Company -

13. Ohio Puelic Utilities' Commission and Ohio Emergency Management Agency

14. Washingten Public Power Supply System

15. Louisiana Power & Light

16. Tennessee Valley Authority

17. Minnesota Department of Health

18. Pennsylvania Power & Light Company

19. Maryland Department of Natural Resources, Energy Administration - Power Plant Research Program

20. State of California, Department of Health Services l

21. Shaw, Pittman, Potts & Trowbridge

22. Indiana State Coard of Health Indiana State Liaison Officer

23. Commonwealth of Puerto Rico, Environmental Quality ficard

24. GPU Nuclear Corporation

25. New York State Energy Office

26. Illinois Power Company

27. Oregon Department of Energy

28. Commonwealth Edison i

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DEPARTMENT OF PUBLIC HEALTH E AN 27 P3 :30 w^ay L. rtus. ...a Edr ',E June 22, 1988:

Secretary U.S. Nuclear Regulatory Commission -

Washington, D.C. 20555 Attention: Docketing and Service Branch Ladies and Gentlemen:

Reference is made to your policy statement 'on cooperation with states at comercial nuclear plants and other nuclear production or utilization facilities. I have reviewed this document in conjunction with radiation control program staff of this department. We concur in the need for such a policy statement by NRC in order to maintain a unifonn posture in its relationship with all states, and more significantly, to avoid any perception of dual regulation.

Independent. state inspections of federally regulated facilities would tend to confuse the regulated sector as well as expend sorely needed state resources in areas where adequate federal enforcement is already being directed. We are not prepared at this time to enter jnto a joint inspection program, as described in this policy statement.- However,1 fully agree with the six conditional elements you have listed and would strongly support the inclusion of these elements in any future such program in which we might participate.

Sincerely, 4

John. A. Eure, State Liaison Officer, State of Iowa Assistant to the Division Director for Environmental Health Divisien of Disease Prevention Iowa Department of Public Health JAE/bf cc: Mary L. Ellis Director of Public Health Roland Lickus NRC Region III LUCAS STATE OFFICE BUILDING / DES MOINES, IOWA 503194075 / 515 281 5787

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COMMENTS OF OHIO CITIZENS FOR RESPONSIBLE ENERGY. INC. 03BCND" M5 P2 :35 ON POLICY STATEMENT. COOPERATION WITH STATES AT COMMERCIAL NUCLEAR POWER PLANTS. 53 FED. REG. 21981 (June 13. 1988)OTHCL , . .

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00CKU I'4 . 4 NCI-BRANC" l The Commission has proposed o policy sectement outlining:NRC- l cooperotton with State governments. Included in,this policy I statement is the opportunity for representatives or State I governments to participate in inspections under NRC oversight.

Other activities in which States con portteipote include ,

observation or NRC inspections and meetings between the NRC and licensees.

OCRE supports this policy statement. This policy statement ,

orrers some importone opportunities ror State involvement in (

the protection or the health and sorety or citizens. The NRC '

is to be commended for taking this initiotive in pursuing cooperation with State governments.

Respectfully submitted.

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Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention: Docketing and Service Branch.

Ladies and Gentlemen:

Reference is made to your policy statement which appeared in the Federal Register (page 21981) on June 13, 1988, regarding cooperation with states at commercial nuclear i

plants and other nuclear production or utilization facilities. We have reviewed the policy and concur in the need for such a policy by NRC in order to maintain a uniform po.sture in its relationship with all states, and more significantly, to avoid any perception of dual regulation.

Independent state inspections of federally regulated facilities would tend to confuse the regula ed sector as well as expend sorely needed state resources in areas where adequate federal enforcement is already being directed. We are not prepared at this time to enter into a joint inspection program, as described in this policy statement. However, I fully agree with the six conditional elements you have listed and would strongly support the inclusion of these elements in any future such program in which we might participate.

Sincerely, aM Wh Don ld A. Flater, Chief Bureau of Radiological Health 515/281-3478 DAF/bf cc: Carlton Kammerer, Director State, Local and Indian Tribes Programs, NRC William J. Adam, Ph.D., NRC Region III l

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J Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention: Docketing and Service Branch.

Ladies and Gentlemen:

Reference is made to your policy statement which appeared in the Federal Register 1 (page 21981) on June 13, 1988, regarding cooperation with states at commercial nuclear i plants and other nuclear production or utilization facilities. We have reviewed I the policy and concur in the need for such a policy by NRC in order to maintain j a uniform posture in its relationship with all states, and more significantly, to avoid any perception of dual regulation.

Independent state inspections of federally regulated facilities would tend to confuse the regulated sector as well as expend sorely needed state resources in areas where adequate federal enforcement is already being directed. We are not prepared at this time to enter into a joint inspection program, as described in this policy statement. However, I fully agree with the six conditional elements you have listed and would strongly support the inclusion of these elements in any future such program in which we might participate.

Sincerely, aM Wh Don Id A. Flater, Chief Bureau of Radiological Health l 515/281-3478 DAF/bf l cc: Carlton Kamerer, Director l State Local and Indian Tribes Programs, NRC William J. Adam, Ph.D., NRC Region III I

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. Secretary-U.S. Nuclear Regulatory Commission-Washington, D.C. 20555 Attention: ~ Docketing and Service Branch Re: Policy Statement - Cooperation With States at Commercial Nuclear Power Plants and Other Nuclear Production or Utilization Facilities -

53 FR.21981 (June.13, 1988) -

Reauest for Coments

Dear Mr. Chilk:

These comments are ' submitted on behalf of the Nuclear Management and Resources Council, Inc. ("NUMARC") in response to the request of the U.S. ,

Nuclear Regulatory Comission ("NRC") for comments on the NRC Policy State-ment - Cooperation With States at Comercial Nuclear Power Plants and Other Nuclear Production or Utilization Facilities - 53 FR 21981 (June 13,1988).

NUMARC is the organization of the nuclear power industry that is responsible for coordinating the combined efforts of all utilities licensed by the NRC to construct. or operate nuclear power plants, and of other nuclear industry organizations, in all matters involving generic regulatory policy issues and on the regulatory aspects of generic operational and technical issues affecting the nuclear power industry. Every utility responsible for constructing or operating a commercial nuclear power plant in the United States is a member of NUMARC. In addition, NUMARC's members include major architect-engineering firms and all of the major nuclear steam supply system vendors.

NRC should be commended for taking the initiative to assist States to better understand the NRC's regulatory activities and the complex regulations associated with that responsibility. A Memorandum of Understanding (MOU) between the NRC and a duly authorized State representive could provide a mechanism whereby the complementary goals and policies of the NRC and State L agencies could be c?ried out more efficiently and expeditiously without diminishing the responsibilities or authority of either party.

However, as the Policy Statement recognizes, the regulatory i responsibilities assigned exclusively to the NRC by the Atomic Energy Act of i 1954, as amended, i.e., the regulation of the radiological and national security aspects of the construction and operation of nuclear production or utilization facilities, cannot be delegated. Section 274 of the Atomic Energy Act recognizes the interest of States in the peaceful uses of atomic energy and the desirability of the Comission to coordinate its programs with the 8807280148 880713 PDR 53 21981

Mr. Samuel J. Chilk July 13, 1988 Page Two States in the regulation of byproduct', source, and special: nuclear materials; it explicitly states that no agreement entered into with a State shall provide for the discontinuance of the Comission's authority and responsibility with respect to the regulation of the construction and operation of any production or utilization facility; Th'e proposed policy statement is silent about any specific need that the policy statement fulfills or any benefit, other than in greater coordination of activities, that would result from the implementation of the. proposed policy statement. -

Although we understand ~ that it:mayebe beneficial for the NRC and the States to share information relating to their comon interest to protect the public health and safety, we are concerned that situations could develop where a licensee could be subjected to dual, and perhaps conflicting, regulation. We share the NRC's conurn ". . . that independent State inspection programs could direct an applicant's or licensee's attention to areas not consistent with NRC safety priorities, misinterpret NRC safety requirements, or give the perception of dual regulation.' Although it may be appropriate for States to participate in the regulation of byproduct, source, and special nuclear materials pursuant to Section 274b of the Atomic Energy Act, it is not appropriate for States to assert authority over the public health and safety aspects of comercial nuclear power plant regulation.

The NRC must not abrogate its legal responsibilities nor allow, much less provide for, dual regulation of nuclear facilities. The need for stability

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of regulation and consistency of interpretation, goals that are critical to the safe and reliable operation of commercial nuclear power plants, will not be advanced by State participation in NRC inspection activities, even when in theory those programs will have provisions to ' ensure close cooperation with NRC." Such close cooperation and NRC oversight will not preclud~e the imposition of yet additional interpretations of regulatory requirements.

The interests of the NRC and States in pursuing cooperative ways in which they can better satisfy their complementary responsibilities to protect public health and safety does not provide a justifiable basis for undercutting the NRC's nondelegable authority over comercial nuclear power plant construction and operation under the Atomic Energy k:t. It is not consistent with that authority for the NRC to allow State representatives to conduct specific inspection activities, even if it is presumed that such activities would be conducted in accordance with NRC standards, regulations and procedures. The provisions of Section 2741 of the Atomic Energy Act authorizing agreements with respect to inspections must be interpreted in concert with Section 274b and 274c and do not establish an independent basis for agreements with States.

The NRC should closely monitor the implementation of whatever policy is finally adopted, and any MOUs executed thereunder, to ensure that any ,

misapplication of authority does not occur. The litigation concerning i emergency planning responsibilities now being considered in the First Circuit Court of Appeals is a vivid example of the potential that exists for States to misinterpret NRC regulations and assert authority over nuclear power plant operations. The NRC should also periodically evaluate the merits and l l

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l l Mr. Samuel J. Chilk l July 13, 1988 i Page Three effectiveness of the policy it adopts to ensure whether the nation's best interests are being served. '{ -

We appreciate the opportunity:to comment on~the NRC's Policy Statement

( and would -be pleased to discuss our connents'further 'with appropriate NRC staff I personnel .

Sincerely; A MN 'A ce F. Colvin RWB/bb e

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Washington, DC 20555 Attention: Docketing and Service Branch

Dear. Sir:

This letter responds to the notice that was published in the June 13, 1988, Federal-Register, on'page 21981. The notice invited comments.on a proposed pelicy statement for cooperative efforts'.between the Nuclear Regulatory Commission (NRC) and the states with respect to commercial nuclear. power. plants and other-nuclear production or utilization facilities.

We ag'ree with the proposed statement that the protection-of public health and safety. and the environment can best be . served by a policy of cooperation that unites the cocmon goals of the NRC and the' states. In addition, however, we would urge'the'NRC to recognize in its policy statement, the value of cooperation between the NRC and the states where there is mutual interest but differing goals and responsibilities. The following suggestions are intended to promote improved communication and cooperation.

1. Channelling state /NRC interaction through a single state liaison is too restrictive. The proposed l policy statement should recognize the unique and diverse communication needs of various state acencies and allow for more than one state contact.

It is to a large degree the NRC's practice, and perhaps intent, to channel contact with states through the State Liaison Officer.

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It is our experience that this is not an efficient or effective process. While it may be suitable for routine contacts and distribution, it is not suitable for contacts involving intensive interaction where continued communication with various branches in Washington or with regional personnel is necessary.

State radiological emergency preparedness personnel, for example have unique and intensive communication needs that maycexist for i

extended periods. Similarly, state ratemaking bodies"that periodically conduct intensive. reviews of operations or construction have information and communication needs that go beyond the level normally available through a liaison. More efficiency interaction will be possible if the NRC will recognize continuing relationships with more than one permanent contact.

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2. The policy statement should be broadened to recognize the state's needs for interaction with the >

NRC in areas central to state responsibilities, but substantially affected by NRC actions.

i The proposed policy statement seems to focus primarily on state participation in health and safety, environmental, and other nuclear safety-related activities falling under NRC jurisdiction.

It does not appear to address unique jurisdictional

. responsibilities of other state agencies. For example, state l agencies are responsible for the evaluation of the reasonableness of construction costs that directly affect base rates as well as operation and maintenance expenses. These evaluations frequently result in state agency /NRC communication as the state agency seeks to evaluate the reasonableness of a particular company's efforts including compliance with NRC rules and regulations.

For nine years the New York Public Service Commission has I had staff located at the Nine Mile Point site and until re 9ntly at Shoreham for the purpose of construction monitoring. That staff has worked closely with the NRC's staf f to the benefit of both agencies and such cooperation should be encouraged as states seek to evaluate construction costs. At other times the Public Service Commission has conducted comprehensive reviews of construction and operational activities which prompted close and extensive communication with the NRC staff in Washington and at the regional level.

l The NRC policy statement should recognize the needs of  !

state agencies to be f amiliar with NRC regulations, policies, and  ;

actions as they seek to evaluate and promote efficiency during construction, operation, and decommissioning phases.

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When such reviews become necessary effective communication should include attendance by state representatives for the purpose cf observation at all enforcement, policy, exit, and other meetings

.affecting the issue at hand. For example, the Nine Mile Point One unit is currently out-of-service for an extended period. The cutage . extension may. be 'duey -in part, to. Niagara Mohawk. Power Corporation's failure to adequately' complete its first ten-year in-service inspection; program. In thisminstancerit' is "important^ ' '-

J f or the State of New~ York be given access to meetings between the  !

company and the NRC and-be able to establish open' communication with NRC resident, regional, and branch personnel as it seeks to understand the extent to which the company fulfilled its license obligations..

3. The qualifications necessary for observers at NRC inspections and meetings need not be as stringent as those for participation in those activities.

The policy statement says that State representatives will be able to observe inspections, and entrance and exit meetings where the representative is knowledgeable in radiological health and safety matters. We are concerned that the NRC may impose a standard of knowledge and training that is inapprop'riate to the act of observing (as distinct from participating) in an inspection or i r.eeting. We recommend that such a distinction be made in the policy statement.

Thank you for the opportunity to comment on your proposed s tatement of policy. We share your objective of enhancing the present degree of cooperation between the states and the NRC.

Sincerely, G.F. WALSH Director, Power Division GFW/JGR/pbf

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Secretary of the Commission'.

U.S. Nuclear Regulatory Commission Washington, DC 20555 Attention: Docketing-and Service Branch

Subject:

Comments on Policy Statement. " Cooperation with States at Commercial Nuclear Power Plants and Other Nuclear Production or Utilization Facilities," (53FR21981).

Dear Sir:

Yankee Atomic Electric Company (YAEC) appreciates the opportunity to comment on the subject policy statement. Yankee Atomic Electric Company owns and operates a nuclear power plant in Rowe, Massachusetts. Our Nuclear Service

. Division also provides engineering and licensing services for other nuclear .

. power plants in the Northeast, including Vermont Yankee, Maine Yankee and Seabrook. +

Yankee Atomic Electric Company endorses the goal of improving NRC communication and cooperation with State governments on issues relating to the regu14 tion of commercial nuclear power plants. We believe that policies which aid qualified State representatives in improving their understanding of the design and operation of such facilities are beneficial to all parties and should be encouraged.

We specifically endorse the second paragraph of the policy statement as )'

providing an appropriate and adequate basis for achieving the desired communi-cation and cooperation. It is our belief that if representatives of the State are kept well-informed of the NRC's activities, provided with oppor-tunities to closely observe the NRC inspection activities, and afforded appropriate channels to raise questions and offer recommendations as proposed in this paragraph, all of the legitimate concerns of a State can be adequately addressed. With this in sind, we are very concerned about those of the policy statement which indicate that the NRC wil1 % odeesll portionstiey6r$$' '

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this point and delegate some of its authority to conduct safety.inspecffons ,,

to State personnel. ... .

Die policy statement specifically mentions the NRC's concern that *

" independent" State inspection programs could misdirect a licensee's attention in a manner inconsistent with NRC safety requirements, result in the mis-interpretation of NRC safety requirements, or give the perception of dual regulation. We believe that delegation of any of the NRC's responsibilities '

to State personnel would be subject to these same concerns legardless of ,

how the NRC attempted to structure and implement its oversight role.

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. Frc 88-009 G1A 88-089 July 12, 1988 furthermore, to require the NRC: Staff to qualify State inspectors.and then-

- assume full responsibility- for the -inspectors' subsequent activitiesist - .

a facility seems to us to seriously complicate the regulatory process without providing commensurate benefits.

In the introductory remarks to the policy statement, an allusion is made- .

to States monitoring. facilities. adjacent to their boundaries...We see no objection to keeping-appropriate representatives of " neighboring" States apprised of the regulatory activities at a specific facility. However,

. we believe that the policy statement should explicitly limit any "on-site" presence of State personnel to representatives of the State in which the facility is located.

Finally, we encourage the authors of the policy statement and subsequent NRC/ State implementing agreements to be sensitive to the fact that these NRC/ State programs can be a significant expense for the licensee., Examples of anticipated costs include: i) the li,cely requirement to provide on-site facilities and services for State personnel comparable to those provided to the resident NRC inspectors, ii) the time spent by NRC personnel (and subsequently billed to the licensee) in. training, qualifying, managing, and/or communicating with State personnel, and iii) the direct cost of participating State personnel.

In conclusion, we urge the Coaxnission to adopt a final policy statement that precludes delegation and/or duplication of Federal radiological health I and safety activities at commercial nuclear power plants. We encourage the Commission to adopt a policy statement that will promote a cost effective contribution to the common goal of protecting the public health and safety.

Very truly yours, l

nhY John DeVincentis vice President JDS/amd

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Secretary - _

U.S. Nuclear Regulatory Commission 1 Washington D.C. 20555 Attentiom Docketing and Service Branch Gentlemen:

Thank you for the opportunity to comment on the Commission's proposed Policy Statement on Cooperation with States at Commercial Nue! ear Power Plants and'Other Nuclear Production or Utilization Facilities as published '

in the Federal R.egister on June 13,1988. - .

'The state 'of Washington, as an Agreement State since December 1966, supports the Commission's objective of adopting a clear policy. regarding cooperation with the states that could be implemented uniformly across all five Nuclear Regulatory Commission (NRC) Regions. Early in 1985 the state of Washington and Region V, NRC, entered into an agreement establishing a mutually acceptable' procedure for - the exchange of ]

information concerning maintenance, engineering, quality assurance, security, emergency 1 planning and operation of nuclear power plants located in the state of Washington. it was 'I the intent of this agreement that cooperative efforts should enhance understanding, reduce duplication of effort and provide, wherever possible, a unified position on matters of joint concern.

Since the signing of this current agreement, state personnel have attended NRC Inspectors exit meetings, have sharad information on environmental monitoring, have participated in significant meetings between plant management personnel and senior representatives of NRC, and have worked jointly with NRC on eptprgency. respegne 4114m.iw y,g and exercises. The agreement has proven beneficial to state relations with theblRC and , ~

has served as a guide for other cooperative efforts. A satisfactory method to continue -

this spirit of cooperation is through a well defined and agreed upon liaison program. The state will review the final policy statement adopted by the Commission 9 prgpose changes in the existing agreement which may be mutually productive.

The state of Washington raises a general concern with the polky where it requires the ' ,,

states to recognize federal supremacy over the regulation of radiological and national '

security aspects of the construction and operation of nuclear production or utilization

• facilities. The state of Washington will not concede that the federal government has 1

i-Secretary July 12,1988 Page 2 unqualified and unspecified authority over these matters where public health, safety and environmental concerns are at risk. The-state also is concerned about the requirement that the state specify the minimum education, experience, training and qualification.of its inspectors which are to be patterned after those of NRC inspectors. .Because the jurisdictions of the state and federal government are different it is reasonable to expect the level of education and training to be different.

It is with positive support that we endorse the Commission's efforts to adopt a national policy for cooperation with the states and look forward to its adoption as a standard.

Sincerely,

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. _ July 11, 1988 Mr. Samuel J. Chilk, Secretary U.S. NUCLEAR REGULATORY COMMISSION '

Washington, D.C. 20555 Attention: Docketing and Service Branch Gentlemen:

POLICY STATEMENT ON NRC COOPERATION WITH STATES AT COMMERCIAL NUCLEAR POWER PLANTS On June 13, 1988, the U.S. Nuclear Regulatory Commission announced a policy statement on " Cooperation with States at Commercial Nuclear Power Plants'and Other Nuclear Pr: duction or Utilization Facilities." The statement was published in the Federal Register, Volume 53, No. 113, at page 21981. The Commission invited interested parties to comment on the policy before it becomes a final agency policy.

This policy statement reflects the intention of the NRC to cooperate fully with State governments and acknowledges their complementary responsibilities in protecting public health and safety and the environment with regard to operation of nuclear power plants and other utilization facilities. As the licensee of a commercial nuclear power plant, we believe that the policy statement will provide a uniform basis for NRC and State cooper-ation in the regulatory oversight of these facilities. This interim policy both recognizes the increased interest by States.

to become more actively involved in the monitoring of activities at commercial nuclear power plant and recognizes the regulatory responsibilities assigned exclusively to the NRC by the Atomic Energy Act of 1954 as amended.

We would encourage the NRC to adopt the provis. ions of this policy statement as an interim measure and to publi'sh this statement as a final policy as soon as practical.

Very truly yours, p

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July 13, 1988 Mr. Samuel J. Chilk Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attn: Docketing and Service Branch

Subject:

NRC Policy Statement Regarding Cooperation With State Governments At Nuclear Power Plants (53 Fed. Rec. 21981) 0

Dear Mr. Chilk:

On June 13, 1988, the Nuclear Regulatory Commission (NRC) published a Policy Statement dealing with cooperation between N NRC and State governments on the regulatory oversight of commercial nuclear power plants and other nuclear production and

'N utilization facilities. 53 End. Es.q.. 2198 V The Commission has olicited public comments on the Policy Sratement. We offer the follo ing comments on behalf of Arkansas Power and Light Co.,

Consol Edison Company of New York, Public Service Co. of Colorado, Rociie3ter e s E Electric Corporation, System Energy ,

Resources, Inc., TU Electric, and Washington Public Power Supply System.

1. Background The Policy Statement indicates that, in order to further the Commission's stated goal of cooperation between the NRC and the States in the protection of public health and safety and the environment, the NRC will do the following:

The NRC will continue to apprise governor-appointed State Liaison Officers routinely of matters of interest to the States.

The NRC will respond fully and in a timely manner (where '

possible, within thirty days) to State requests for information;

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Mr. Samuel J. Chilk July 13, 1988

. Page 2 ,

and will endeavor to provide a timely response to State

' recommendations concerning matters within NRC's regulatory jurisdiction.

-- If asked, the NRC will inform State Liaison Officers through the appropriate NRC Regional-office of.the scheduling.-of1public .

meetings between the NRC and its licensees and applicants,'so that State representatives may attend as observers.

More importantly, the Policy Statement provides that:

-- If asked, the NRC will allow State observation of NRC inspections and/or inspection = entrance and exit meetings, provided that the State representatives are knowledgeable in radiological health and safety matters.g

-- The NRC will consider State proposals to enter into instruments of cooperation for State participation in NRC inspection activities. Such proposals must specifically identify those activities in which.the State wishes to participate. In addition, the State's proposed program must contain a number of provisions designed to " ensure close cooperation and consistency" with the NRC inspection program.2 The Commissio.n states that it will not consider such proposals where the State. program does not include these elements.

2. Discussion and Comments At the outset, we recognize the importance to the NRC of the goals the commission sets for itself in the Policy Statement.

Specifically, the Commission is well-justified in its attempt to promote and enhance cooperation and to clarify the relationship between the Commission and the State governments. As Commission licensees, we are all too cognizant of the political atmosphere that surrounds the issue of nuclear power, and are keenly interested in maintaining amicable and workable relationships with the States. Reasonable efforts by the NRC to facilitate cooperation with the States are to be applauded.

However, while we support the overall goal of NRC/ State cooperation, we find extremely disturbing any Commission proposal to achieve this goal by delegating to the States any part of the commission's authority to conduct inspections at 1/ Such requests by a State must be approved by the appropriate ,

NRC Regional Administrator.

2/ The elements that the commission requires be included in the State's program are set forth in the Policy Statement. 53 End.

Egg. 21982. .

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, :Mr. Samuol J. Chilk July 13, 1988

e .Page 3-nuclear generating facilities. In particular, the Policy Statement provides that:

Qualified. State representatives may bs permitted to performrinspectionsm in; -

i cooperation-with,.and on behalf of,'the NRC under the oversightrof-an.authorised NRC ~ao' ~

representative. - The~ degree of; oversight:

provided.would-depend on the activity.' For instance, State representatives'may be accompanied by an NRC representative initially, in order to assess the-State "-

insoectors' orecaredness to conduct the -

insnectiencindividuallv; - '

53 Ind. Ef.g. -21983 (emphasis added).

Similarly, the Policy Statement provides that:

State participation in NRC programs would -

allow qualified State representatives, either individually or as a member of a team, to conduct spacified inspection. activities in accordance with NRC standards, regulations and procedures in close cooperation with the NRC.

State activities will normally be conducted under the oversig'ht of an authorized NRC .

representative with the degre's of oversight dependent upon the activity involved.

Id. at 21982 (emphasis added). ,

In sum, this language suggests that the NRC will "normally" oversee the States as they participate in and actually conduct inspections and other inspection-related activities. However, the clear implication is also that there will be occasions on which State representatives will be allowed to conduct their own inspections at nuclear generating plants "on behalf of" the NRC, unaccompanied by NRC representatives. At the most fundamental level, we conclude, as a matter of law, that allowing the States to conduct safety inspections would constitute an inappropriate delegation of the Commission's exclusive authority to regulate the operation of nuclear power plants. Moreover, we are concerned that any State involvement in inspections could lead to substantial friction between the States and the nuclear licensees involved. This would ultimately defeat the Commission's avowed goal of an enhanced relationship between the NRC and State governments.

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Mr.'Scmuel J. Chilk July 13, 1988 Page 4

a. Local Problems Section 274.1 of the Atomic Energy Act empowers the Commission, in carrying out its. licensing and regulatory responsibilities, to " enter into agreements with-any State, or group of State's,:to perform < inspection or other functions-on a cooperative basis as the Commission deems appropriate."

However,"to interpret this generalngrant of authority as allowing State representatives to conduct radiological ~ health and safety inspections at nuclear power plants would, we believe, go beyond the intended, scope of this provision.

Congress added Section 274sto thet1954-Atomic 4 Energy Act in 1959. The 1959; Amendments were intended to clarify the federal-state relationship regarding the regulation of " byproduct, source and special nuclear materials," and to " increase programs of assistance and cooperation between the Commission and the States so as to Lake it possible for the States to participate in regulating the hazards associated with such materials." S.

Rep. No. 870, 86th Cong., 1st Sess. (1959), 1959 U.S.C.C.A.N.

2878; H.R. Rep. No. 1125, 86th Cong., 1st Sess. 8 (1959). Thus, the 1959 b materials.jllwasdirectedtcwardstateregulationofnuclear In light of the fact that the 1959 bill adding Section 274 was intended to permit State regulation of nuclear materials only, subsection i should properly be read to permit only inspections related to such materials.

This reading is confirmed by Section 274.c(1), which provides that: -

No agreement entered into pursuant to subsection b. shall provide for discontinuance of any authority and the Commission shall retain authority and responsibility with respect to regulation of--

(1) the construction and operation of any production or utilization facility.

Section 274.b authorizes the Commission to enter into agreements with the States to provide for the discontinuance of certain regulatory authority. Only byproduct material, source material, H and certain quantities of special nuclear material are proper subjects for such state agreements. Regulation of production and utilization facilities is not included f suggesting that i commission authority with respect to such fac.ilities may not be )

discontinued or delegated. Clearly, the conduct of a safety 1 inspection at a nuclear generating facility constitutes an 2/ See also Stction 274.a, which indicates that the purpose of i Section 274 is generally to allow State regulation of materials, '

rather than power plants.

o Mr. Scmual J. Chilk July 13, 1988 Page 5 aspect of the regulation of that facility. An abdication of NRC j inspection authority to the extent contemplated by the present j Policy Statement is thus inconsistent with the intent of the '

Atomic Energy Act.

The Policy Statement. acknowledges'(53-Ind.1 Egg. 21981, 21982) that the federal ~ government, as represented by the NRC, has exclusive authority and responsibility to regulate the radiological and national security aspects of the construction and operation of commercial nuclear generating plants, except for certain authorityEgg the Clean Air Act.

over air emissions grantgd to States by 42 U.S.C. 5 2021.c(1). At the same time, however, the Commission announces in the Policy Statement its intention to allow the States to participate in the regulation of radiological matters by permitting State representatives to conduct inspections. We submit that it is exactly this type of State involvement that is preempted at commercial nuclear power plants.

The legislative history of Section 274 states that "the principal provisions of the bill authorize the Commission to withdraw its responsibility for regulation of certain materials

-- principally radioisotopes -- but not over more hazardous activities such as the . . . regulation of reactors," and that -

"[1]icensing and regulation of more dangerous activities -- such as nuclea'r reactors -- will remain the exclusive responsibility of the Commission." S. Rep. No. 280, 1959 U.S.C.C.A.N. at 2874, 2879 (emphasis added) ; H.R. Rep. No. 1125.

4f This conclusion is premised on the doctrine of federal preemption. Preemption is based upon the Supremacy Clause (Article VI, Clause 2) of the U.S. Constitution, which l 1

invalidates State regulation in areas that Congress has already occupied or which conflict with a federal statutory or regulatory scheme. Rice v. Santa Fe Elevator Coro., 331 U.S. 218, 230 (1947); Florida Line & Avacado Growers. Inc. v. Paul, 373 U.S.

132, 142-43 (1963).

Under the dual regulatory scheme that Congress has established for nuclear-powered electricity generation, it is i well-established that the federal government -- specifically, the l NRC - " maintains complete control of the safety and ' nuclear' l aspects of energy generation" and "has occupied the entire field of nuclear safety concerns, except the limited powers expressly ceded to the states." Pacific Gas and Electric Co. v. Stat.g '

Enerav Resources Conservation and Development Comm., 461 U.S.

190, 212 (1983) ; Silkwood v. Kerr-McGee Coro., 464 U.S. 238, 249 l (1984). These limited State powers do not include the authority to conduct State inspections of nuclear plants.

1 l

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Mr. Samuel J. Chilk July 13, 1988 Page 6 In conclusion, Section 274 must be read as a whole. The principal grant of authority to delegate certain functions to States, Section 274.b, is qualified by Section 274.c. Section 274.1 must be read as subject to Section 274.c as well.

Therefore, we read the grant of authority in Section 274.1 as allowing the NRC to enter " instruments of. cooperation".only with respect to licensed activities other than commercial nuclear power reactors (32gt, materials licensees) or with respect to matters other than radiological health and safety (sigt, certain environmental matters),

b. Practical Problems _ 2.

The Commission tacitly attempts to justify its proposed policy by asserting that it will not permit " independent" inspections by the States. For purposes of the Policy Statement, an " independent" state inspection program "is one in which State representatives would conduct inspections and assess NRC-regulated activities on a State's own initiative and authority without close cooperation with, and oversight by, an authorized NRC representative." 53 ZAd. Eng. 21982, col. 3.

. Thus, in the Commission's view, the distinction between a permissible and an impermissible State role in the inspection process is whether there is an appropriate degree of

" cooperation" with, and " oversight" by, the NRC. As discussed above, this distinction does not comport with Section 274 or its legislative history. Furthermore, we are not particularly comforted by the distinction, since certain portions of the Policy Statement (cited above) suggest that there need not always be Commission oversight of St-te inspections. Finally, this aspect of the Policy Statement aises myriad practical problems.

The Commission's announced intent to delegate inspection authority to the States would open a Pandora's box of regulatory problems for the NRC. As the Policy Statement itself recognizes, the existence of independent State inspection programs "could direct an applicant's or licensee's attention to areas not consistent with NRC safety priorities, misinterpret NRC safety requirements, or give the perception of dual 1/ In light of these legal deficiencies, it is also troublesome that the Policy Statement does not address any DRAd for the proposed instruments of cooperation. Presumably when Congress enacted Section 274 to provide for State participation in regulation of nuclear materials, it premised its action on some identified need. The NRC provides no similar basis for now deciding (without any Congressional sanction) to extend its delegation of responsibility to commercial nuclear power plants.

1 L___________________ )

Mr. Scmuol J. Chilk July 13, 1988

. Page 7 regulation." 53 End. Egg. 21982, col. 3. Such problems could of course result in unnecessary expenditures of time and money on the part of the licensee and the agency, and could even degrade safe reactor operation.

For example, and perhaps most troublesome, the. Policy Statement provides a window"for State inspectors to pursue personal agendas, motives, regulatory standards, and regulatory interpretations that differ from those of the Commission and/or the licensees. If this occurs, it will almost certainly lead to friction between the States and the licensees, adverse publicity for the NRC, a' call to the NRC to take sides, and a shattering of the illusion of " cooperation" between the NRC and the States.

As an example of this, the Commission need only~1ook as far as its own recent experience with the emergency planning regulations. In the early 1980's the Commission promulgated those regulations calling for a substantial State and local role. At the time, the Commission apparently viewed cooperation as a given and the regulations as fairly benign, as perhaps it now views the present Policy Statement. However, history has shown that those regulations have resulted in State-imposed delays on reactor operations, and in one case, a finished power plant apparently will be torn down before it ever operates. We hope the Commission will not again be so sanguine regarding *

" cooperation" with State governments. .

.In addition, the possibility of having State inspectors also raises the question of ensuring the competence of such inspectors. For example, who will these inspectors be? Who will assure their competence? Does the Commission have the time and.the resources to train these individuals? Inspectors that are not properly trained will exacerbate the problems noted above. The Commission seems to presume without foundation that State inspectors will be qualified. Moreover, the NRC should recognize that there is a limited pool of talent from which States could draw qualified inspectors. That pool generally consists of the NRC and its licensees. These organizations could thus lose important resources as a result of this proposal. As a final example, this proposal raises questions regarding whether State inspectors would be treated the same as NRC inspectors in regard to training, security, and fitness for duty requirements. In sum, the Commission's Policy Statement '

has not even begun to address these important practical problems.

3. Conclusions In view of the legal and practical concerns discussed above, we most strongly urge the Commission to modify the Policy Statement to provide specifically that no State radiological health and safety inspections of NRC-licensed commercial nuclear l

. '.'- l Mr. Samusi J. Chilk July 13, 1988 Page 8 power reactors will be permitted, independent or otherwise. We believe that the concept of federal preemption of all regulatory ]

activities in this area dictates the exclusive authority of NRC representatives with respect to all such inspections and other i inspection-related activities. J In this regard, the proposed delegation of inspection authority to State representatives also. exceeds the scope and intent of Section~274 of the Atomic Energy Act, as confirmed by the legislative history. To address this legsl deficiency and ,

the practical problems cited above, we believe that the role of j State representatives should be strictly limited to observation '

of, or participation in, entrance and exit meetings. The additional-qualifications in this latter regard currently incorporated into the Policy Statement (e.c., that State representatives at these meetings be " knowledgeable") should be retained.

We appreciate this opportunity to provide our comments on the Commission's proposed Policy Statement on cooperation with the States.

Respe fu y s bmitted, Nichel S. Reynolds David A,. Rep ka BISHOP C , PURCELL

& REYNOLDS 1

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GIN, SPRINGFIELD 62704 (217) 785 9900 TEMRY R. LASH DIRECTOR July 11,1988 The Secretary of the Comission Attn: Docketing and Service Branch 4 U.S. Nuclear Regulatory Commission l Washington, DC 20555 ]

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Re: Prorcsed Policy - Cooperation With States At Commercial Nuclear Power Plants And Other Nuclear Production Or Utilization Facilities, May 24, 1988.

The Illinois Department of Nuclear Safety (IDNS) hereby submits its coments on the above-mentioned proposed policy concerning cooperation with states at comercial nuclear power plants and other nuclear production or utilization facilities. There are thirteen- operational reactors at seven sites within Illinois. IDNS is the lead agency in Illinois for preparing i emergency plans for and coordinating emergency responses to accidents at these

. nuclear power plants.

The Illinois Department of Nuclear Safety has reviewed the proposed policy on " Cooperation With States At Comercial Nuclear Power Plants And Other Nuclear Production Or Utilization Facilities." The Illinois Department of Nuclear Safety is encouraged by the following items addressed in the policy:

- Cooperation between the NRC and the states. -

- How oversight by the NRC will be accomplished. * *

- Unifomity among all states with regard to prptocol.

- Coordination of State and NRC inspection effortst .

- Inspection findings not disclosed prior to release of the NRC inspection report.

DS/6

The Secretary of the Comission July 8,1988 Page Two We recommend that a sentence be added to 'the second paragraph in the

" Implementation" section on page 8, third line from the bottom to clarify what appears to be the intent. --

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. . . inspection individually. Af ter a positive assessment, State inspectors' inspections may be conducted individually and would be coordinated with the NRC resident inspector.

Other activities. . .

We are looking forward to cooperative ventures with the NRC in accordance with the proposed policy. L'e plan to provide additional resources to maintain public health and safety and to assure that there is minimal impact on the environment as a result of activities If eensed and regulated by the NRC.

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Secretary U.S. Nuclear Regulatory Commission Washington, DC ,20555 Attn Docketing and Service Branch Policy Statement on Cooperation With States and Commercial Nuclear Power Plants Gentlemen: .

We have carefully reviewed the proposed policy which was pub-lished in the Federal Register (53FR21981) on June 13, 1988, and wish to submit comments thereon.

We recognize that the states can have legitimate concerns re-garding the safety and operation of nuclear power plants. We believe that these concerns can be addressed in the currently prescribed licensing process through the offices of the NRC. Our major concern with this revised policy ic understanding the role of qualified state inspectors. Since the Atomic Energy Act has delegated to the NRC sole authority to regulate nuclear power plants, any policy which could possibly weaken this authority must be avoided.

The proposed policy on NRC/ Stat.e Cooperation is not entirely clear. He believe that if the NRC feels State input is essential, it should on a case-by-case basis: ,, ,, ,

(1) consider a State's concerns regardin, sa fety. oi a  ;

nuclear power plant responding, when necessary,.with.an inspection which could include State observers; (2) provide a State with timely information regarding its concerns,providing the information is not proprietary or ,

does not pertain to security matters; l .L

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l (3) include State representation in public meetings with the licensees-l (4) obtain State assistance when such assistance would be a

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benefit to'the NRC in~~its' regulatory duties; and (5) have complete oversight of State activities regarding 1 nuclear safety.-

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The NRC should not:

(1) permit independent' State inspection programs or reviews; and (2) delegate responsibility for performing NRC inspections ,

to State representatives.

Ttia proposed policy statement is ambiguous with regard to the )

above requirements. This ambiguity can lead to a situation where a State, for whatever reason, could hinder the NRC in its ,

regulation of nuclea'r power.

Very truly yours, 0H J hn D. Leonard, r V ce President - uclear Operations

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Secretary of the Comunission U S Nuclear Regulatory Conunission Washington, D C 20555 Attention: Docketing and Service Branch CONSUMERS POWER COMPANY COMMENTS ON THE POLICY STATEMENT -

COOPERATION WITH STATES AT COMMERCIAL NUCLEAR POWER PLANTS &

GTHER NUCLEAR PRODUCTION OR UTILIZATION FACILITIES Consumers power Company is pleased to offer the following comments on the proposed changes to 10CFR, Part 50 titled, " Cooperation With States at comuner cial Nucicar Power Plants and Other Nuclear Production ties; P'olicy Statement" as, published in the Federal Register on June 13, 1988or Utilization (53 FR 21981).

Consumers Power Company agrees that the States have a legitimate concern with the operation of nuclear powerOur plants within their jurisdiction; concerns are discussed in participation in NRC inspection activities.

detail below.

First, although the Policy Statement requires the State program to recognize the primacy of the NRC for the regulation of its licensees Specifically, ing State cooperation in Emergency Preparedness planning.

regardless of the policy statement, we believe that it is likely that the political climate within a particular State may result in a State or releasing information relating to the NRC inspection prior ato closure by the NRC. .t.

pub withradiologicalhealthandsafety,webelievethattherewillbecalls[fr.on-o.

State officials whose States are within the 50-mile indest'idE. path'way"of '- a.e particular plant to participate in the inspection program for that plant.-

Thus, the licensee and the NRC may be required Again, to dealthe given with and resolve differences in the concerns of several States rather than one.

State policies towards nuclear power, this could lead to significant problems for both the licensee and the NRC.

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Second, although the Policy Statement requires that the State program must specify the minimum education, experience, training, and qualification require-ments for the State representatives, it does not declare how the NRC will judge the adequacy of the State program, particularly as the program relates to i.he qualifications of the State representatives. Will the determination of the adequacy of the State program be mads'by the Region or by Headquarters? We believe that a detailed description of what constitutes an adequate State program, including the minimum qualifications of the State inspectors, is necessary to ensure uniform interpretation of this Policy.

Third, considering past disagreements within the NRC itself, regarding the meaning and interpretation of the NRC's own regulations, we believe it very likely that the addition of a third party, especially a party who is likely to be inexperienced to the inspection process, will result in significant delays in the process of resolving inspection items.

In conclusion, while Consumers Power Company agrees that the NRC should ensure that the various States are routinely inforned on matters of legitimate con-cern, we do not believe that a policy of af, lowing State participation in routine inspection activities is necessary or in the best interest of the NRC.or the licensees. ,

p Kenneth W Berry,

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U.S. Nuclear Regulatory Commission i One White Flint North 11555 Rockvi3'e Pike Rockville, Picyland 20852

Dear Sirs:

Per our telephone conversation, a copy of the Ohio Emergency Management Agency's and the Public Utilities Commission of Ohio's comments was faxed to Washington, D.C., and delivered to the Secretary of the Commission today.

Enclosed are the original and copies of the OEMA-PUCO comments to the NRC policy statement found in 53 F.R. 21981.

Please date stamp and mail any extra copies to the PUCO in the self-addressed envelope which is also enclosed.

Very truly yours, Mark A. Selker Attorney Consumer Services Department l

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COMMENTS FILED FOR THE STATE OF OHIO BY THE OHIO EMERGENCY MANAGEMENT AGENCY AND THE PUBLIC UTILITIES COMMISSION OF OHIO

i b - . j The Ohio Emergency Management Agency (OEMA) and the Public j Utilities Commission of Ohio herewith offer comments on the policy statement on " Cooperation with States at Commercial Nuclear Power  ;

. Plants and other Nuclear Production or Utilization Facilities."

The Nuclear Regulatory Commission (NRC) has invited comment.to consider its policy statement ~on future State proposals to monitor and participate in attivities related to the operation of nuclear ^ power plants.' The NRC issued the policy statement in response to increasing state initiatives to safeguard the environment and the health and safety of its citizens, especially residents in close proximity to nuclear facilities in or near the State. The States have become more critical of (1) NRC problems relating to establishing adequate safety enfor~ cement ~ procedures ~and~(2) NRC' neglect of'the management aspects of nuclear power plants.

The policy statement, if adopted, would provide for " instruments of cooperation" for State participation in inspections and inspection ontrance and exit meetings consistent with NRC regulations and standards. The States would be required to identify the specific inspections they desire to participate in with the NRC.

OEMA and PUCO support the NRC policy to joia with the States in Memorandum ,of Understanding instruments of cooperation and subletter agreements. The NRC policy will strengthen federal-state cooperation and improve nuclear safety. The State of Ohio will enter into an instrument of cooperation and subletter agreements to permit joint inspection activities, information sharing with the NRC and additional agreements on low level waste matters,.

The policy statement makes it difficult however for States to qualify for an instrument of cooperation or subletter agreement while pursuing their responsibilities to protect health and safety. Ohio for example has authority over the operator's finances through the rate-setting mechanism set forth in Chapter 4909 of the Ohio Revised Code. In any rate-making proceeding, the Public Utilities Commission has the duty to " consider the management policies, practices, and organization of the public utility" and the authority to recommend "sanagement policies, management practices, or an organizational structure to the public utility" to remedy " inadequate, inefficient, or improper" policies or practices. Moreover, the PUCO aust deny

" operating and maintenance expenses. . . incurred by the utility through management policies or administrative practices that the commission considers imprudent" (section 4909.154 of the Ohio Revised Code).

i 1

_ _ _ _ _ _ _ _ - - _ . - _ - - - - - - - - - - - - ' - - - - ' - - - - - - ^ ^ ^ - ' ' - - ^ - " ' ' ' " ^ ^ ~ ~ ~ ~ ~ ^^"~"~'"

,'  ; dhio's canagecent jurisdiction in conjunction with otxA, the ohio Departcent of Realth and the Ohio Environmental Protection Ageniy would .

assist NRC and complement the NRC program contained in the policy l statement. Accordingly, the NRC and the state of Ohio should review proposals to utilise the state's annagement and rate-making authority in concert with its emergency preparedness responsibilities and authority as part of or parallel to an instrument of cooperation and l subletter agreements. Multilevel cooperation and assistance will promote safe operation of AUcitet power planti thd inuft to the benefit of the operators and the publlor -

i Respectfully submitted, i

1 RICIAAD C. ALEKANDER The Adjutant General and Director chio Energency Management Agency ,

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TBoMAS V. CEBMA I

Chairman Public Utilities commission of Ohio

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u0Cel ...a Secretary. . SED U. S. Nuclear Regulatory Commission P1-137 Washington, D. C. 205S5 Attention: Docketing & Service Branch

Subject:

SUPPLY SYSTEM COMMENTS ON PROPOSED POLICY STATEMENT REGARDING COOPERATION WITH STATES The Supply System appreciates the opportunity to coment on the proposed Policy Statement regarding Cooperation with States. We agree that the NRC should " cooperate fully with State governments as they seek to respond to the expectations of their citizens that their health and safety be protected and that there be minimal impact on the uvironment as a result of activities licensed by the NRC." Therefore, we agree that it is entirely appropriate for:

1) The NRC to keep Governor appointed State Liaison Officers routinely informed on matters of interest to the states.

2) The NRC to respond in a timely manner to state requests for information and state recommendations concerning matters within NRC's regulatory jurisdiction.

3) The NRC to routinely inform State Liaison Officers of public meetings between the NRC and its licensees and applicants, in order that state representatives may attend as observers.

The Supply System does believe that State inspections of facilities licensed by the NRC should not be permitted. Our position is in .

opposition to that in the Policy Statement which specifies that "the NRC will consider State proposals to enter into instruments of cooperation for State participation in inspections and inspection entrance and exit meeti ngs. " We oppose this portion of the Policy Statement for the following reasons: " ' '

1) The ultimate responsibility for safety of nuclear power rests with the NRC. Delegating some of those responsibilities to many states can or!v lead to waste and inefficient utilization of ratepayer resour s1 . Having a few NRC inspectors with the appropriate ,

specit1x red training and expertise is much more cost effective than for i, e ste tes also having to acquire those capabilities.

9

_ _ _ _ _ . _ __ - _ _ _ \

.. . Secretary

. Comments - Preposed Policy Statement

% " Cooperation with States" Page 2-O

2) Having states perform inspections of nuclear , facilities can only ultimately lead to confusion and conflicting interpretations of NRC requirements and guidance documents.

3) . Utility budgets are generally ~ fixed. This proposal will. certainly lead to' additional resources being. required to respond to inspections - byt : state. personnel . "This- will probably come at the expense.of other necessary= programs.-

4) The states probably do not now hava the requisite levels of qualifications for their inspectors. This means that they must then obtain those qualifications and much'of the training responsibility is going to fall upon the utilities.

5) Delegating inspection responsibilities to the states does not relieve NRC of .their responsibility for safe nuclear power. What does result from this Policy Statement is the equivalent of dual.

regulation with two governmental entities (Federal and State) having responsibilities in these areas.

The Policy Statement allows state representatives to individually conduct inspection activities under the oversight of an authorized NRC representative. NRC's resources have been severely restricted in recent years and the Supply System believes that the NRC will have great '

difficulty in maintaining an appropriate level of oversight. Without a clear and concise statement of the states' ability or inability to

. perform inspections independently, there will always be confusion about  !

a state inspector's authority to be conducting inspection activities.  !

In summary, the Supply System believes that to delegate inspection responsibility to the states results in additional levels of regulatory oversight with no additional benefit to public health and safety and the potential for negative safety implications certainly must be considered.

We also see deleterious impacts to the ratepayers due to further  ;

increases in governmental activities with no added benefit.

Please note that we will be providing additional comments on this proposed policy statement through Bishop, Cook, Purcell, and Reynolds.

If you have any questions, please contact Mr. D. W. Coleman at (509) I 372-5304.

Very trul yours,

( .u s G. C. Sorensen, Manager Regulatory Programs 1 cc: C. Eschels/EFSEC NS Reynolds/BCPR JR Lewis /BPA

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July 13, 1988 -

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W3P88-1366 j A4.05 {

NQA j Secretary-U.S. Nuclear Regulatory s maission f Washington, D.C. 20555 j i

ATTENTION: Docketing and Service Branch j

SUBJECT:

53 Federal Register 21981 (June 13, 1988) f Comments on NRC Policy Statement 10CFR50: ' Cooperation With States at Commercial l Nuclear Power Plants or Utilization Facilities

Dear Sir or Madam:

. j l

Louisiana Power & Light Company (LP&L), owner and operator of Waterford Steam )

Electric Station - Unit Number 3, a nuclear generating station located in l Taft, Louisiana, is providing comments on the subject Federal Regi'ter s notice.

LP&L supports the policy statement and agrees with the rationale used by the Nuclear Regulatory Commission (NRC) in developing the statement as pre-  !

sented in the-Federal Register notice.

1 As the NRC indicates in the policy statement: i i

It is the NRC's policy to cooperate fully with State governments l as they seek to respcod to the expectations of their citizens that their health and safety be protected and that there be minimal impact on the environment as a result of activities licensed by the NRC. 1 The NRC and the States have complementary responsibilities in protect- f ing public health and safety and the environment.

Inasmuch as LP&L employees are citizens of the State of Louisiana, LP&L ,. - < .

respects, understands and supports these states' rights and desires. Howeveri states are already burdened with many pressing fiscal responsibilities. '

i Nuclear power technology and regulation thereof require a great deal of exper-

) tise that both the industry and the NRC have established over a long period of time. The NRC has in place the technological expertise to assess its i licensees / applicants without regard to geographical location. For these '

l reasons, states' desires for increased interaction in matters of nuclear 8807250180 B80713 PDR PR 50 53PR21981 PDR l j

"AN EQUAL OPPORTUNITY EMPLOYER" D d -/d  !

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,I Page 2 W3P88-1366  ;

July 13, 1988 power are better served by continued, albeit increased, interaction with the NRC, rather than through direct, independent action with NRC licensees /

applicants.

1 LP&L concurs with the NRC's stated concern that:

... independent State inspection programs could direct an applicant's or licensee's attention to areas not consistent with NRC safety priorities, misinterpret NRC safuty requirements, or give the per-ception of dual regulation.-

LP&L finds the elements required to be identified in a state's proposal for an instrument of cooperation to be reasonable and appropriate. Further, LP&L strongly concurs that all' enforcement action should be undertaken by the NRC.

LP&L encourages the NRC to include one further consideration in the policy statement that of apprising potentially affected licensees / applicants that their state is pursuing an instrument of cooperation with the NRC. This would allow licensees / applicants to be a party to the proceedings through the public participation process, in the same manner that petitions brought by licensees / applicants to the NRC are open to public participation.

LP&L appreciates this opportunity to comment on the subject policy statement.

Yours very truly.

R.F. Burski Manager Nuclear Safety & Regulatory Affairs RFB/CDG/pim cc J.G. Dewease, R.P. Barkhurst, N.S. Carns, M.J. Meisner, J.J. Cordaro, R.M. Redhead, C.E. Wilson, L.W. Laughlin, R.W. Prados R.J. Murillo, G.E. Wuller, Records Center, Administrative Support, Licensing Library 1

. MiOP055!IR5T - so f ,

TENNEOSEE VALLEY AUTHORITY 6 F A.2/78 CH ATTANOOG A, TENNEs2EE 37t.o1 -

h SN 157B Lookout Place "

l JUL 151988 8 ^ "

• 33 U.S. Nuclear Regulatory Commission OP .* :. .

ATTN: Document Control Desk 00Q e.

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Washington, D.C. 20555 Centlemen:

NUCLEAR RECULATORY COMMISSION (NRC) - POLICY STATEMENT REGARDIhG 10 CFR 50,

" COOPERATION WITH STATES AT COMMERCIAL NUCLEAR POWER PLANTS AND OTHER NUCLEAR PRODUCTION OR UTILIZATION FACILITIES" The Tennessee Valley Authority (TVA) has. reviewed and is. pleased to provide comments on the Policy Statement noticed in' the" June 13 1988 Federal Retister (53FR 21981-21983) regarding State participation in NRC inspection activities at nuclear plants.

TVA supports WRC's initiative in the development of this Policy Statement as it establishes a basis for ensuring uniformity in State proposals for inspection of licensees, and lays the ground rules for their participation l within the authorities already established through federal regulations.

We also share the concerns of NRC and the Nuclear Management and Resources Council that this prograrr. must be closely monitored to ensure that misapplication of authority does not occur, and that the program should be evaluated for its merits and effectiveness periodically.

One specific consnent we offer concerns the following excerpt.

For instance, State representatives may be accompanied by an NRC representative initially, in order to address the State inspector's preparedness to conduct the inspection individually.

It implies that at sometime an authorized State inspector may be allowed to conduct an unsupervised inspection. We recommend that a quellfled NRC inspector always accompany a non-NRC " inspector."

We appreciate this opportunity to comment.

l Very truly yours.

l TENVESSME LEY AUTHORITY d /--

R. ridley, Di ctor Nuclear Licens g and Regulatory fairs 8808020076 880715 POR PR 50 53FR21981 PDR An Equal Opportunity Employer

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c. cc: Mr. George Barber JUL 151988 U.S. Nuclear Regulatory Commission 11555 Rockville Pike Room'12C-13 Rockville, MD 20852 Ms. S. C. Black, Assistant Director for Projects TVA Projects Division U.S. Nuclear Regulatory Commission ,

One White Flint, North 11555 Rockville Pike Rockville, Maryland 20852 Mr. F. R. McCoy, Assistant Director for Inspection Programs' .

TVA Projects Division U.S. Nuclear Regulatory Commission Region II 101 Marietta Street NW, Suite 2900 Atlanta, Coorgia 30323 b

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M r. Samuel J. Chilk DOCKC W s -

Li Secretary of the C o m m is s io n N~

U.S. Nu cle ar Regulatory C om mis s io n -

Docketing & S e rv ic e Branch W as hin g ton, D. C. 20555 l

Dear M r. Chilk:

The M in n e s o t a Department of Health wishes to make the follow-ing comments in response to your proposed policy statement on C om mis sion cooperation with states at commercial nuclear power plants, which appeared in the June 13, 1988 F ed er al R e g is t e r.

The Department would welcome the opportunity to cooperate more closely with the Commission in its reg ulato ry ac tivi-ties of commercial nuclear power plants. We see this as an opportunity to iuprove our working relationship with the Commis sion, educate ou rs elv e s ab out the day-to-day activi-ties of your licensee and p rov id e an evetoe for making your licenses aware th at ths State may have concerns in related areas. -

Areas of in spection in which we are particularly interested includ e low-level waste preparation prior to ship m en t, spent fuel rod storage, en'viron men t al monito rin g, d e conta min ation

. procedures and equip men t, e mis s ion control equipment and emis sion inv en tory records, routes of discharges, employee radiation exposure control, and emergency equipment and systems.

If this policy is ad opt ed , Minne sota in te nd s to seek a Memorandum of Understanding with the C o m mis sio n in order to p a r ticip at e in NE C inspections.

Thank you for the opportunity to comment or your policy s t at em ent. If you need ad dition al inf orm ation, please con-tact Raymond W. Thron, Ph.D., P.E., State Liaison Officer, at 612/623-5 32 0, or M s. Alic e T. Dolesal Hennigan, . Chief, Section of Radiation Control, at 612/623-5351.

Sincerely yours, 6 8808020089 880714 ,

21981 PDR hR p liister M ar Madonna Ashton Commissioner of Health SM M A: ATDH:T DD an equal opportunity ornployer

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Q P nnsylvcnic Powcr & Light Comprny QjMd/f#)

Two North Ninth Street e Allentown, PA 18101'

• 215 / n04151 'J5NRC.

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J 18 .AL 19 A9;33 Harold W. Keiser M *

'; ',..[h i Serrar Vice President Nuclear 215 770-4194 @UCf[ .{.

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Mr. Samuel J. Chilk,'-Secretary '

U.S. Nuclear Regulatory Commission '

Washington, D.C. 20555 Attn.: Docketing and Service Branch SCSQUEHANNA STEAM ELECTRIC STATION COMMENTS ON POLICY STATEMENT COOPERATION WITH STATES AT NUCLEAR POWER PLANTS Docket Nos. 50-387 PLA-3057 FILES R41-2/A17-11 and 50-388

Dear Mr. Chilk:

Pennsylvania Power and Light (PP&L) is pleased to provide the following comments on the policy statement on cooperation with states at ' commercial nuclear power plants and other nuclear production or utilization facility (53FR21981). .

Although PP&L agrees in principle with the policy staterant, we do make two specific comments.

1. PP&L believes the policy statement should provide for arbitration.

through the NRC, should a State representative be less than fully qualified to perform in the capacity of a nuclear plant inspector, and

2. PP&L believes that State representatives should not be permitted to operate independently, but rather be accompanied onsite by NRC representatives. This approach ir consistent with that generally used by the NFC with consultants.

PP&L appreciates this opportunity to comment on the policy statement.

Very truly yours, .o

• IA H. W. Keiser

.s cc: O > ~ S n . . '. k 6 ' C.hJW hsT

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NRC Region I Mr. F. I. Young, NRC Senior Resident Inspector Mr. M. C. Thadani, NRC Project Manager

" " DOCKET NUMBER

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PROPOSED RULE 9 b3 (53 pro 2/f8't Maryland Department of Natural Resourceii' '

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Energy Administration - Power Plant Research Program Tawes State Office Building '88 at 21 P2 :35 Annapolis, Maryland 21401 (301) 974-2261 Willia:- De ald Schaefer 0 h,' '

Torrey C. Brown, M.D.

Gowrnov 53t.N." Secretary 1

July 19, 1988-Samuel J. Chilk, Secretary Nuclear Regulatory Commission-Docketing and Service Branch Washington, D.C. 20555

Dear Mr. Chilk:

Representatives of the Maryland Department of Natural Resources and Department of the Environment have reviewed the Nuclear Regulatory Commission's Policy Statement, " Cooperation With States at Commercial Nuclear Power Plants and Other Nuclear Production or Utilization Facilities." The following comments are offered for your consideration. -

The Policy Statement makes several references tio notification which can or will be made to the State Liaison Officer. The State of Maryland has no problem with the existing State Liaison Officer program, and no objection to most routine notifications being made to the State Lia'_ son Officer. However, there may be cases, the ongoing review of the shutdown of the Peach Bottom Atomic Power Station being one notable example, where % principal contact within the State of Maryland is not the State Lid son Officer. Our only concern is to ensure that the Policy Statement is not intended to preclude future instances where the Governor may desire to select a principal contact other than the State Liaison Officer for interaction with the Commission.

It is our understanding that the Commission has directed its staff that the rights and responsibilities granted to the states under the Policy Statement are extended only to host states. The State of Maryland strenuously objects to this policy.

The scope of our review and activities (e.g., radiological monitoring and emergency planning) for the Calvert Cliffs Nuclear Power Plant, located in state, and the Peach Bottom Atomic Power Station, located out of state, are virtually identical. The location of Peach Bottom only 3 miles north of the Maryland Pennsylvania border necessitates that this be the case. Any impact from the operation of this plant, whether environmental, public health and safety, social or political would be no different if the plant were located a few miles couth within the state's borders.

8807280074 880719 , . .

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At least one of the reasons for our level of activity at Peach Bottom is the NRC's own requirement concerning radiological emergency planning for states within 10 miles of operating reactors. This requirement does not distinguish between a host state and one three miles downstream; We therefore do not believe that the NRC's Policy. Statement should make such a distinction.

We suggest that the NRC's implementation of this' policy be revised to grant the same' rights and responsibilities to all states within 10 miles of a nuclear power plant. We do not believe this places an unreasonable burden on either.the NRC or the licensee. This aspect of the policy should also be clearly intated in the Policy. Statement. .

Thank you for the opportunity to provide these comments.

Sincerely,

! /Y&

4.W/ g-Thomas Mage t., Administrator

. Nuclear Eva untions TM/rva cc: Paul Perzynski, MDE l

_______ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _________ _ _ _ _ _ _ _ _ _ _ __ ___ _ _J

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staff 0F CAUPORNIA- MGALTM AN3 WELFAM AOf**cY PROPOSED RULE N.

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Secretary U.S. Nuclear Regulatory n = 4== ion Washington, D.C. 20555 Attenticrt: Docketing.and Services Brancis FEDERAL REGISITR Notics: 53113,~ PAGE 21961, Dn2ED JUNE 13, 1988 The State of California is sqpportive of changes which would allcw greater opportunity to participate with the Nuclear Regulatory n=4== ion in matters involving the use of radioactive materials in QLlifornia. California has been an %i s it state since 1962. She State has spent many hours en licensing and inspecticri to provide for the health and safety of the public excluding those licensees of the Nuclear Regulatory &w=4==icri. I l

Shere are three utilities and several nuclear production facilities  !

licensed within California. She proposed cisange would allcw the State to j arv= nary Nuclear Regulatory n=4=mian p=&muel en regular inspections of these facilities. She proposed policy change does ncrt identify a source of f funding for the inspections. If the State oculd not fund the impacticri program totally, the Stata may be seen by the general public as not providing adequata review of nuclear facility operators to protect the public health.

We believe that the gt -M policy should include suggested means by whicit the Stata could obtain funding fee the program.

If your have any questions, please feel free to ccritact Gary W. Batner at (916) 323-5027.

Sincerely, Dcri J. dorf, % ia- Manager Ice-Level Radioactive:Wasta ',' -

w .s cc: Harvey F. Collins, Chief C Envim J.al Health Divisicri -

714 P Street, Rocni 616 Sacramento, CA 95814 l

8807270297 880719 PDR PR - g o

PDR 50 53FR21991 l

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3 Docketirg and Sezvice Branch Page 2 Paul A. Szalinski, Chief.

Radiologic Health Branch 1232 Q Street._

Sacramento, .G 95814 Gary W. Butner, Health Physicist-Envi. r4 W A. Branch 714 P Street, Roca 616 Sacramento, G 95814 John H. Hickman, Sr. Health Physicist Envisu 4.rf4 Ha n , w s. Branch 8455 Jackscm Road, Suita 120 Sacramento, G 95826 O I e

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i e Secretary of the Commission M U.S. Nuclear Regulatory Commission #

Washington, D.C. 20555 Attention: Docketing and Service Branch l-Re: NRC Policy Statement on Cooperation With States 53 Fed. Rec. 21981 (June 13, 1988) ,

Gentlemen:

The Commission recent1'y published, at 53 Fed. Rec. 21981 (June 13,.1988), a Policy Statement on Cooperation With States at Commercial Nuclear Power Plants and Other Nuclear Production or Utilization Facilities. The Federal Register notice invited the comments of interested parties concerning the policy statement, which is intended to provide a uniform basis for NRC/ State coop-eration in the regulatory oversight of commercial nuclear power plants and other nuclear production and utilization facilities.

On behalf of Baltimore Gas & Electric Company, The Cleveland Electric Illuminating Company, Northern States Power Company, Pennsylvania Power & Light Company, Sacramento Municipal Utility District, The Toledo Edison Company, Union Electric Company and Wisconsin Electric Power Company, all of whom hold operating licenses for nuclear power reactors, we are pleased to provide the following comments for the Commission's consideration.

I. Introduction The NRC presently has agreements in place with at least five states -- Illinois, New Jersey, Oregon, Pennsylvania and Vermont ,

-- which allow those states to participate in specified NRC ac-tivities (generally, inspections and meetings). However, the 8808010169 880720 PDR PR 50 53FR21981 PDR Dhk /

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. SMAW. PITTM AN, PoTTO & TmowDRioGE'

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July;20, 1988  !

Page-2 t trend of state activism in nuclear safety matters is. spreading 3 rapidly.. As.,the NRC has. recognized:, '

In recent years, States have taken-the inir"

'tiative to monitor more closely commercial'

. nuclear power plants and other nuclear pro--

duction or. utilization facilites?vithin, and ,

adjacent to, their State boundaries by becoming better informed and,cin.some.. cases,

~

more involved in' a'ctivities related to the.

regulation and operation of those facilites.

53 Fed.' Rec. 21982 (June 13, 1988). According to the NRC:

It was this increased interest by States to become more actively involved in NRC activi-ties that caused the NRC to re-examine those '

agreements previously negotiated with States and to' determine & uniform policy for.how fu-ture State proposals should be handled.

1$2 The NRC's Policy Statemer.t on Cooperation With States at Commercial Nuclear Power Plants and Other Nuclear Production or Utilization Facilities provides that the NRC:

(1) Will continue to keep Governor-appointed .

State: Liaison Officers routinely informed on matters of interest of the States; (2) Will respond in a timely manner to a State's requests for information and its recommenda-tions concerning matters within the NRC's regulatory jurisdiction; (3) Will, upon request, routinely inform State g Liaison Officers of public meetings between '

NRC and its licensees and applicants in order that State representatives may attend as ob-servers; and (4) Will, upon request, allow State representa-tives to observe specific inspections and/or

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'., . S'HAw, PITTMAN, PoTTO 6, TaoWORIDGE

- . m e.e.o. c m .. ..o,c. w . = co..o.a.o.o 2 Secretary of the Commission July 20, 1988 Page 3 inspection entrance and exit meetings where State representatives are knowledgeable in radiological health and. safety matters. .

53 Fed. Rec. at 21982.

The policy statement further provides that the NRC "will consider State proposals to enter into instruments of cooperation for State participation in inspections and inspection entrance and exit meetings." 53 Fed. Rec. at 21982. However, the policy statement emphasizes that a State's proposal-to enter into an instrument of cooperation must outline a program that:

(1) Recognizes the Federal Government, primarily NRC, as having the exclusive authority and responsibility to regulate the radiological and national security aspects of the con-struction and operation of nuclear production or utilization facili. ties, except for certain authority over air emissions granted to states by the Clean Air Act; (2) Is in accordance with Federal standards and regulations; (3) Specifies minimum education, experience, training, and qualification requirements for State representatives which are patterned after those of NRC inspectors; l

(4) Contains provisions for the findings of State j representatives to be transmitted to NRC for {

disposition; (5) Would not. impose an undue burden on the NRC and its licensees and applicants; and 1

(6) Abides by NRC protocol not to publicly dis-close inspection findings prior to the re-lease of the NRC inspection report. l l

l Id.

I

,-. S$Aw, PITTM AN, POTTS 6 Taowonicot A 868ThDSM@ INGwubMG #eCWC26eossak CO#80#17 tow 3 Secretary of the Commission July 20, 1988 Page 4 The policy statement is intended to preclude independent State inspection programs -- programs in which State representa-tives inspect and assess NRC-regulated activities on the.. State's own initiative and authority, without'close cooperation with and oversight by the NRC. The policy-statement indicates;that the NRC is " concerned that independent State inspection programs could direct an applicant's or licensee's attention to areas not consistent with NRC safety priorities, misinterpret NRC safety requirements, or give the perception of' dual regulation'" 53 .

Fed. Rec. at 21982.

Generally, we approve of the policy statement as a timely reaffirmation of federal preemption in the area of nuclear safe-ty, which properly focuses on State observation of and participa-tion in NRC meetings and inspections as a first step in defining more clearly the roles which States may play in cooperation and coordination with the NRC. However, we strongly disagree with the proposal that State representatives may conduct certain -

inspections alone, even if those inspections are conducted with the cooperation of the NRC and in accordance with NRC inspection procedures. We also disagree with the policy statement to the extent that it would allow States to publicly disclose inspection findings after release of the NRC inspection report. In addi-tion, we believe that affected licensees and applicants should be afforded the opportunity to comment on draft instruments of coop-eration between the NRC and the States. Finally, we believe that affirmative action is appropriate to bring existing instruments of cooperation into conformance with the policy statement.

Accordingly, we urge the Commission to modify the policy statement as follows:

1. To provide that State representatives may participate in NRC inspections only as ob-servers, and may not alone inspect NRC-regulated activities (even if those inspec-tions would be conducted with the cooperation of the NRC and in accordance with NRC inspec-tion procedures);

2. To prohibit State disclosure of inspection findings both before and after release of the NRC inspection report;

~.

,,, Aw, PITTMANs POTTO & TROWOCloGE a seatset;s=0, esCWpaseG PeOrtal@ mas Commomavcess Secretary of the Commission July 20, 1988 Page 5

3. To provide affected licensees and applicants opportunity to comment on draft instruments of cooperation during negotiations between-the NRC and the States; and

4. To provide for renegotiation of existing instruments of' cooperation between the NRC and the Statesont the earliest opportunity, to bring the existing agreements into con-formance with the policy statement.

II. Discussion A. States Should Not Be Permitted To Conduct Inspections Alone.

As the policy statement notes, "[t]he NRC and the States ,

have complementary responsibilities in protecting public health and safety and the environment." 53 Fed. Rec. at 21982. How-ever, the NRC has exclusive regulatory authority over all ra-diological health and safety aspects of the construction and operation of nuclear power plants. Based on a careful review of legislative history, the U.S. Supreme Court has confirmed the NRC's preemptive role in nuclear safety regulation (T]he Federal Government maintains complete control of the safety and " nuclear" aspects of energy generation; the States exercise their traditional authority over the need for additional generating facilities to be licensed, land use, ratemaking, and the like.

Pacific Gas & Electric Co. v. State Enercy Resources Conservation

& Dev. Comm'n, 461 U.S. 190, 212 (1983). Accord, Silkwood v,.

Kerr-McGee Coro., 464 U.S. 238 (1984); Northern States Power Co.

v. Minnesota, 447 F.2d 1143 (8th Cir. 1971), aff'd mem., 405 U.S.

1035 (1972). See also 10 C.F.R. S 8.4 (1988). Relying on the doctrine of preemption, the federal courts have expressly re-jected state and local government attempts to inspect the ra-County of diological safety of nuclear power plants. See, e.o.,

Suffolk v. Lono Islar.d Lichtino Co., 728 F.2d 52, 59 (2d Cir.

1984) (independent physical inspection of nuclear plant "would .

plainly intrude on areas of exclusive NRC jurisdiction" and is i

i

' f- SHAw, PITTMAN, PCTTG 6 TROWORIDGE Secretary of the Commission July 20, 1988 Page 6 therefore barred:by preemption); City of Cleveland.v. Public Utilities Commission of Ohio, 64 Ohio St.2d 209, 414 N.E.2d 718 (Ohio 1980)(State PUC saf ety-inspection of ? nucisar plant-if pre-empted).

Indeed, the policy statement acknowledges that the regula-tory responsibilities assigned exclusively to the NRC by the Atomic Energy Act of 1954 -- 1212, the regulation of the ra-,

diological safety and national security aspects of the construc-tion-and-operation-of' nuclear power plants - cannot-be dele-gated. See 53 Fed. Rece at 21982. However, the policy statement completely fails to establish the legal authority of State repre-sentatives to alons inspect nuclear safety activities -- in the words of the policy statement, "on behalf of the NRC." id 2 Moreover, while it is beyond dispute that States have an interest in the protection of public health and safety and the environment, those interests are served equally well whether a State representative alone conducts an inspection of compliance ,

with NRC s.tandards or whether that State representative observes an NRC official conducting the same inspection. Thus, there is no cognizable benefit to the Sta'tes f rom the opportunity to con-duct certain inspections alone (in cooperation with the NRC).

Nor does the policy statement identify any benefit to the NRC of the States' assumption of ins conducted by NRC personnel.1/pection In fact, activities the policytraditionally statement does not even specify which -- if any -- activities the NRC has deter-mined to be " desirable for State personnel to perform on behalf of the NRC." 53 Fed. Rec. at 21982.

Finally, we agree with the NRC that State inspection pro-grams "could direct an applicant's or licensee's attention to areas not consistent with NRC safety priorities, misinterpret NRC safety requirements, or give the perception of dual regulation."

53 Fed. Rec. at 21982. However, the potential for those problems is not limited to " independent State inspection programn," as the policy statement appears to suggest. The potential for dual 1/ States' assumption of NRC inspection activities would not even result in financial savings for the NRC, since the NRC collects the full cost of such activities from its appli-cants and licensees under 10 C.F.R. Part 170. .

( _ . _ _ _ _ _ _ _ _ _ - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - _ _ _ _ _ _ _ _ _ _ , _ _ _ _ _ _ - _ -

' SHAW, PITTM AN, PoTTs 6. Taowsmioot A #A8ThteSmap INCLUOemo peOFESSiONA6 Co#*0#AtiONS

. Secretary of the Commission July 20, 1988 Page 7 regulation would be inherent'even in" inspections-conducted by States in cooperation.with--the NRC.

The NRC~itself is in the.best position.to determine whether )

its own regulatory requirements are being met. As a general mat-ter, the greater the number of personnel involved in inspections, the greater the potential for differing -- and often conflicting interpretations'of' regulatory requirements. The-risk of'dif-fering and conflicting interpretations is multiplied when the personnel are drawn' f rom the ' dif f erent: organizations,-which have different responsibilities and interests, and which operate from l different assumptions, with different organizational backgrounds l and agendas.4/ The NRC has long been concerned about ensuring q uniformity in enforcement among its regional offices. The prac- l tice of allowing State representatives to alone inspect NRC- i regulated activities would further compound this concern.

Further, it is important to efficient and effective regula .

tion to have both hardware and personnel issues viewed in con-  !

text. This is as true for inspection and enforcement as for any other area of regulation. State representatives (who would only H be permitted to conduct inspections of very specific areas) .would i

necessarily be wearing blinders to much of the context of any potential enforcement situatien. Such a limited perspective would be particularly likely to result in misinterpretation and confusion of regulatory policy.

Finally, our concern about dual regulation is not simply an issue of economic cost and sound administrative practice. The clarity and consistency of regulation is a': the heart of the safe operation of nuclear power plart.t.. Thus, given the inherent potential for dual regulation, even State inspections which are conducted in cooperation with the NRC may actually have neaative implications for public healta and safety.

2/ These and other similar considerations would likely cause the NRC to be uncertain in many cases about the weight to be accorded the inspection findings of State representatives.

The NRC's need to verify such findings by conducting a re-peat inspection itself before considering enforcement action would be both politically sensitive and burdensome on the NRC and the licensee or applicant. .

l

. SMAw, PITTMAN. POTT 2 & TROW 3 RIDGE se v.sn , ews. an.<wsu.a n ca o.n o.a e Secretary of the Commission July 20,.1988 Page 8 B. States Should Not Be Permitted To Disclose Findings Even After Release of NRC_In3pection Report.

l The policy statement: indicates that the NRC intends to re-quire all State instruments of cooperation.to provide that" State representatives will " abide [] by.NRC protocol not to be [ sic) publicly disclose inspection findings prior to the release of the NRC i.nspection report." 53 Fed. Rec. at.21982. While such a requirement is patently appropriate, it does not go far.enough.

Under the NRC's current proposal,'ii vould' appear that States would be free to release underlying inspection data, notes, observations and findings after release of the NRC inspec-tion report. However, a State's release of this type of in-formation at any time would be prejudicial to the NRC's inspec-tion and enforcement process, particularly if the information released by the State appeared on its face to be inconsistent in-any way with the ultimate findings of the NRC inspection report.

States have no inherent right to participate in NRC inspec-

• tion activities. Therefore, where the NRC permits such partici-pation, the NRC may condition that permission as it deems appro-priate. Whether a State has participated in an NRC inspection as -

an observer or has c'onducted some part of the inspection itself, it should not be permitted to publicly disclose any underlying data, notes, observations or findings -- before or after release of the NRC inspection report. The integrity of the NRC's inspec-tion and enforcement program demands no less.

C. Affected NRC Licensees and Applicants Should Have Opportunity to Comment on Instruments of Cooperation.

The policy statement indicates that a State's proposed instrument of cooperation will be acceptable to the NRC only if, inter 1113, the State's program "would not impose an undue burden I on the NRC nnd its licensees and aoolicants." 53 Fed. Rec. at 21982 (emphasis supplied). However, the policy statement fails to provide for any opportunity for affected NRC licensees and  ;

applicants to comment on draft instruments of cooperation. -

Clearly, affected licensees and applicants may have valuable -- 'j even unique -- insights and perspectives on issues which may be

! i' L

l l

. SH Aw. PITTM AN, POTTS & TROWGRIDG E

. .- . .. .. ..cw o. on . ....., co. ..r ..

Secretary of the Commission July 20, 1988 Page 9 addrersed in instruments of cooperation. Accordingly, the policy statement should expressly provide affected licensees and appli-cants the opportunity to comment.on draft, instruments..of coopera-tion during negotiations between the NRC and the States.1/ Fur-ther, the NRC should consult with affected licensees and l applicants in its formal review of the implementation of an l instrument of cooperation to be conducted not less than six months after the effective date.of the instrument. .See 53 Fed.

Rec. at 21983.

D. Existing Agreements Should be Renegotiated To Conform To Policy Statement.

Although the policy statement "strongly encourages" States with existing instruments of cooperation "to consider modifying them, if necessary, to bring them into conformance with the pro-visions of this policy statement" (53 Fed. Rec. at 21982), it in-dicates that the NRC presently plans to continue to honor those agreements even if they are not modified. 53 Fed. Rec. at 21981.

But the policy statement offers no justification for this " grand-fathering."

In the absence of compelling reasons to the contrary, all licensees and applicants across the country should be subject to uniform treatment. Accordingly, the final policy statement should expressly provide for renegotiation of existing instru-ments of cooperation between the NRC and the States, at the ear-liest opportunity, to bring the existing agreements into con-formance with the policy statement.

J/ For example, under the Agreement States Program, the terms of any proposed agreement for the NRC's transfer to a State of authority for the regulation of byproduct material, source material and small quantities of special nuclear ma-terials must be published in the Federal Register once a week for four weeks and subject to opportunity for public .

comment. See 42 U.S.C. 5 2021(e).

.. SH AW. PITTMAN. POTTS 6. TROWGRIDGE a ~ m. m - . ew s a m ...o n eo ,,o .

Secretary of the Commission July 20, 1988 Page 10 III. Conclusion .

The NRC's. Policy. Statement.on Cooperation.WithcStates.at Commercial Nuclear Power Plants.and Other Production org Utilization : Faci'lities- is a.. timely reaf firmation of. federal' pre +

emption in-the area of nuclear safety, which properly. focuses on-State observation of and participation in NRC meetings and inspections. However, the policy. statement should.be modified to provide that State representatives may participate in inspections of NRC-regulated activities only.as observers.. The policy state-ment should be further' revised to prohibit State disclosure of underlying data, notes, observations and findings both before and after release of the NRC inspection report. In addition, the policy statement should expressly provide affected licensees and.

applicants the opportunity to comment on draft instruments of co-operation. Finally, existing instruments of' cooperation between the NRC and.the States should be renegotiated at the earliest op-portunity, to bring them into conformance with the policy state-

• ment.

With these revisions, the policy statement should be pub-1ished in final form. ,

Respectfully submitted, Am A. A.- f Jay E. Silberg,' P'.C0 Delissa A. Ridgway e

4 e

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

l R O B'E R T D. O R R , G O V E R N O R .. .' ~

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4.OOODROW A. MYERS. JR., M.D., STATE HEALTH gig INDIANA STATE BOARD OF HEA180

%EST M CHIGAN STRE g y g$ .

INDIANAPOLIS, IN 46206 1964 INDIANA STATE BOARD OF HEALTH f0C'~N>. ! '4 5CI BR A Ns - AN EQUAL OPPORTUNITY EMPLOYER July 5, 1988 Secretary Attention: Docketing & Service Branch Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Subj ect: Cooperation With States at Commercial Nuclear Power Plants and other Nuclear Production or Utilization Facilities; Policy Statement. .

Dear Sir:

I 1 appreciate being included in your proposed policy regarding cooperation vith the states. ,

Indiana has no fuel facilities and only one research reactor.

Indiana has had few problems and none in recent years with the cooperation provided or offered by the Nuclear Regulatory Commission.

The policy statement is straight forward, easily understood and appears to be equitable to the states and the Federal Government. We would appreciate routine notification of NRC inspection activities and public meetings affecting Indiana.

Thank you for your cooperation. If we may be of service, please contact us.

Sincere 1 T. S. Danielson, Jr., M.D., M.P.H.

Indiana State Liaison Officer

/

/

- I "The health of the people is really the foundation upon which all their happiness and all their powers as a state depend. "

-Disraell

COMMONWEALTH OF PUERTO RICO'/ OFMCE OF THE GOVERNOR IY R? A ' ??.'

$Y, . h,54,Ohr/ So s

July 12,~1988 , J127 A9 04 grcru .

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l Mr. Carlton Kammerer Director State, Local and. Indian Tribe Programs- i Office of Governmental and Public Affairs ]

United States Nuclear Regulatory Commission w Washington, D. C. 20555 ]

Subject:

Cooperation with States at Nuclear facilities Policy Statement- FR 53, No. 113 June 13, 1988, 21981 )

)

Dear Mr. Kammerer:

Reference is made to your' letter of June 15, 1988 received in my office 1 on July 6, 1988 regarding the Nuclear Regulatory Commission's Proposed Policy Statement on Cooperation with States at Commercial Nuclear Power Plants and Other Nuclear Production or Utilization facilities.

We> support this policy statement l'n principles. Since we receive this document too late we cannot assure that our specific comments will be ready for July 13, 1988 as reovired.

I Cordi [y y ,

S Santos Rohena Betancourt Chair an ,

l l

8808110003 890712 53 21981 PDR , /O OFFICE OF THE 80ARD. 204 DC. PARQUE ST. CoHDt oF P&WLADA / NJUNG ADDRES$ P.o. DoX 11486 MuRCE. NDffo IDCo 00910 / TELEPHONE: 7255l40 l

DOCHET tlU:, men

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Writer's Direct Dial Number:

00CKLiii ., . . , ,ici sit t.),g u July 22. 1988 C300-88-0393' Mr. Samuel J. Chilk Secretary of the Commission -

U. S. Nuclear Regulatory Commission Washington, D. C. 20555

Subject:

Request for Comments on the NRC Polity Statement on Cooperation with States at Commercial Nuclear Power Plants.

The staff of GPU Nuclear Corporation herewith submits comments on the subject policy statement. Comments were requested in a June 13, 1988 Federal Register notice (53 FR 21981).

As a general comment, we believe that the subject policy statement correctly maintains the current balance of Federal / State a'uthority in the field of nuclear regulation. Therefore, we support the NRC's efforts in this area.

incerely

).$ ,

. L. Sullivan .

ic. & Reg. Af rs Director JLS/RPJ:fg cc: President - P. R. Clark Director, Communications - C. Clawson Director, Planning & Nuclear Safety - R. L. Long gBog425880722 50 53FR21981 PDR l ,

7094f/017EPU Nuclear Corporation is a subsdary of General Pubhc Ut& ties Corporation f

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. k C II NEW YORK STATE ENERGY OFFICE "cS5SEY

%M/ e.t i r --

0 5 N $ l) August 8, 1988

'88 AUG 12 NO:51 Mr. Samuel J. Chilk [0C

• a 4 i, r " a' Secretary to the Comission ERANv U.S. Nuclear Regulatory Comission Washington DC 20555 Dear Mr. Chilk This is in response to the notice that was published in the June 13, 1988 Federal Register regarding a U.S. Nuclear Regulatory Commission policy statement on cooperation with states at commercial nuclear power plants and other nuclear production or utilization facilities.

My concerns about this statement relate to the limitations which appear to be suggested regarding state involvement in NRC meetings and proceedings.

i While I agree that the "NRC and the States have complementary responsibilities in protecting public health and safety and the environment",

the. States' role in the nuclear area is broader. States make both policy and regulatory decisions that can affect and be affected by nuclear operations.

An NRC inquiry into an extended outage at a nuclear plant may develop information important to state regulation of that utility's rates, for instance. This does not appear to be reflected in the statement of policy, which refers only to state

• representatives " knowledgeable in radiological health and safety matters". If the intent of this definition is to exclude persons from disciplines othee than radiological health and safety, it will unreasonably limit state involvement. This narrow a definition would {

contradict the spirit, if not the. intent, of the objective of furthering j federal / state cooperation. )

i My concerns are heightened by indications from the Regional State l Liaison Officer that the NRC may ultimately allow only one person to be 1 designated as a state representative. Since the states' nuclear interests are very broad, it is sometimes necessary that more than one representat.ve attend an NRC proceeding. Limiting state representation to one person would further contradict a policy intended to enhance cooperation.

Thank you for considering these comments. Be assured that New York shares a commitment to enhanced cooperation between the state:c and the Nuclear Regulatory Commission.

Sincere .

l illiam E. Davis Executive Deputy Commissioner WED/kkb TWO ROCKEFELLER PLAZA

• ALBANY, NEW YORK 12223

. .,.q.i 16 ls . ' igd NWM % -2%

U-601236 bwd g LIW) L10-88(os-oS)-LI v.ygc ILLINDIS POWER 00MPANY fy _,,_ ,,,,,co.o. sw s,s. c August 5, 1988 Tgs e 0% h.. ..

00CKE N- A ' U

Mr. Samuel J. Chilk BRw Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention: Docketing and Service Branch

Subject:

Policy Statement - Cooperation with States at Commercial Nuclear Power Plants and Other Nuclear Production or Utilization Facilities - 53FR21981 (June 13, 1988) - Request for Comments

Dear Mr. Chilk:

Illinois Power Company offers the following comments in response to the request of the U.S. Nuclear Regulatory Commission (NRC) for comments on the NRC Policy Statement - Cooperation with States at Commercial Nuclear Power Plants and Other Nuclear Production or Utilization Facilities - 53FR21981 (June 13, 1988).

Illinois Power Company endorses the comments provided by the Nuclear Management and Resources Council (NUMARC) in their July 13, 1988, letter (Mr. J. F. Colvin to Mr. S."J. Chilk). Illinois Power Company offers the following amplifying comments:

a. As the policy statement recognizes, the regulatory responsibilities assigned exclusively to the NRC by the Atomic Energy Act of 1954 cannot be delegated. The proposed policy statement is silent about any specific need that the policy statement fulfills or any benefit, other than greater coordination of activities, that would result from the implementation of the proposed policy statement.

b. It may be beneficial for the NRC and the states to share information relating to their common interest to protect the public health and safety. However, we are concerned that situations could develop where a licensee could be subjected to dual, and perhaps conflicting, regulation.

As is evident from the litigation now being considered in the U.S. Court of Appeals for the First Circuit concerning Emergency Planning, dual regulation and conflicting interpretations can lead to disputes resulting in substantial expenses, delays, and diversion of resources from more important concerns.

3.,* U~601236 L10-88(0&-05)-LI e .

c. The NRC should closely monitor the implementation of {

vhatever policy is finally. adopted, and any memorandum of <

understanding executed-thereunder, to ensure that any misapplication of authority does not occur. The NRC should also periodically evaluate the merits and  !

effectiveness of the policy it adopts to_. ensure whether the nation's best interests _are.being served.;.

1

'l Illinois Power Company appreciates the opportunity. to comment ort )

the NRC's policy statement and would be pleased to discuss our comments )

further with appropriate NRC staff personnel.

Sincerely yours, 3 . 7 .'/ 1 D. L. Holtzscher Acting Manager-Licensing and )

Safety l l

PGB/bjc 1

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. u@rci NUMBER gi ,,

c. , uuruSED RULE '84 (53 Ff_2J WD .

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• Department of Energy

- 'a rt 625 MARION ST. NE, SALEM, OREGON 97310 PHONE 378-404688rOEd6E 8Y0k18035

,y r n .. .

August 2, 1988 00CM g.j" "LL Carlton Kammerer, Director State, Local and Indian Tribe Programs Office of Governmental and-Public Affairs U.S. Nuclear Regulatory Commissicri  !

Washington, D.C. 20555

Dear Mr. Kammerer,

We have reviewed the draft Nuclear Regulatory Commission Policy Statement regarding cooperation with States. Please consider these comments as you pro'ceed with adoption of this policy statement:

The Sute of Oregon intends to ensure that NRC's final policy statement does rat adversely impact programs we have diligently worked to establish.

In 1975' Oregon Legislature established the State regulatory program for nuclear installations. The 1979 Legislature required a resident engineer at each nuclear power plant in the state. In 1980, the NRC and.the Oregon Department of Energy (ODOE) agreed on the relationships between our respective regulatory programs.

Over the years, we have shown that State and NRC regulatory programs can j be complementary without being duplicative. Our interaction on plant i safety issues has been very productive. We believe this has been a major j factor in achieving safe plant operation and maintaining public I confidence.

We take part in many of the NRC regulatory activities at Trojan. But, l our interests do not always coincide with the NRC inspectors'. We 1 believe personal interaction with plant staff is essential in gaining the information needed to accurately assess and influence plant safety.

There have been no instances where Oregon has misinterpreted NRC safety requirements. Oregon regulators have never redirected the licensee's attention to areas not consistent with NRC safety priorities. And, our

. agreement with the NRC prevents such problems from occurring. It states:

i "If ODOE finds it necessary to direct the operators of Trojan to take action 000E shall obtain NRC's prior agreement that such action does not have an adverse effect on plant or public safety" i l

The Oregon Department of Energy is an Equal Opportunity Employer

Carlton Kammerer August 2, 1988 Page 2 We believe that diluting our regulatory role to the level in the draft policy statement would not be in the public's best interest.-

Several other States have shown an interest in developing similar regulatory programs. Like Oregon, these programs may be required by l state laws. These laws may require more than the draft policy statement would allow. -The NRC needs.to recognize this and develop and maintain good working relationships with these states. Such relationships will usually work to the advantage of both parties. The' alternative is controversy and conflict and attendant negative publicity.

Oregon has-worked hard to build and maintain public confidence that state and federal regulatory programs assure safe operations at Trojan.

Discord between NRC and other states will:enly erode Oregonians' confidence that states and the NRC can work cooperatively for the public interest.

We appreciate NRC's cooperative approach to Oregon's regulatory pro' gram.

We believe this relationship has benefited the NRC, the licensee and the '

public. We hope the final policy statement will foster such relationships here as well as in other states.

Sincerely, M. W. Alsworth Manager of Reactor Safety Nuclear Safety and Energy Facilities Division MWA:ml 1273-Letter (dl/fl)

. \

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' C

./ Commonwealth Edison W 'N ' N 8E8 l.,' Ii One First Nabonel Plaza. Chace0o. lilinois PMVPOSEDQutE.p3,m 1v J Address Replyi; Post Omco Box 757 .

(. d Chicago, Illinois 60690 0767

. ,j ;

M

.MM

- August 4, 1988

'8B AUG 22 A9:21 i or e. >.

Mr. Samuel J..Chilk. -

hk- . . . .

Secretary of the Commission- - --

U.S. Nuclear Regulatory Conunission Washington DC 20555 Attn Docketing and Service Branch Subjects Proposed' Policy' Statement on Cooperation with States at Nuclear Power Pisints (53 FR 2198/. 6/13/88)

Dear Mr. Chilk:

This provides Commonwealth Edison Company's (Edison) views on the subject policy statement. In general, Edison supports the Nuclear Regulatory Commission's (NRC) approach to cooperation between the NRC and the States on nuclear power plants. In particuL. Edison agrees with the NRC's criteria for an acceptable instrument for State cooperation and with the NRC's refusal to recognize independent State inspection programs. However, Edison is concerned that the policy statement does not address how the NRC will enforce its authority should a State representative exceed the scope of his/her authority under the agreement for cooperation. By contrast, the Commission periodically reviews agreement state programs to assure continuing

- complianc'e. Some such sort of review should be included either in'the policy statement or in Memoranda of Understanding.(MOU) entered into under it.

Edison is also concerned that State representatives may be allowed to observe inspections and/or inspection entrance and exit meetings on approval by the Regional Administrator. Such observations should be delayed until the state has entered into an MOU at which time the observations will be a logical first step to ultimate participation in NRC inspection activities. Noveover, observers should be required not to divulge any information obtained without prior clearance by the NRC. Otherwise, the inspection process could be compromised.

Finally, although not explicitly stated, Edison aestunes that any MOU negotiated under the policy statement will be available for public comment before it becomes final. Thank you for allowing us to comment on this matter.

Very truly yours, Henry Bliss Nuclear Licensing Manager rf 4987K

I e I i

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. 4

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• "' tee p >+ e 4

ase APPENDIX B .

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1 1

. 1 APPENDIX B -

SUMMARY

OF COMMENTS AND NRC RESPONSE II. Sumary ~of Coments and NRC R_esponse On June 13,'1988, the Commission's Policy Statement on Cooperation with States at Commercial Nuclear Power Plants and Other Nuclear Production or Utilization Facilities was published in the Federal Register for publ'ic comment (53 FR 21981.) The comment period expired July 13, 1988. In the  :

Federal Register notice, the Comission stated that the " proposed policy will be followed in the interim, except for those paragraphs in the policy statement and Implementation section dealing with State proposals for l i'nstruments of cooperation for participation in inspections and inspection  !

I entrance and exit meetings. The Comission will not,act on these specific types of State-proposed instruments of cooperation until the comment period expires and the policy statement is published as a final policy statement."

The NRC received 28 letters of coment; fourteen from members and representatives of the nuclear power industry, including electric utilities and their counsel, thirteen from various State offices and one from a public interest group.

State Comments Most of the State offices expressed support for the NRC's policy "to cooperate fully with State governments as they seek to respond to the ,

1 expectations of their citizens that their health and safety be protected and that there be minimal impact on the environment as a result of activities licensed by the NRC." In the opinion of these States, the NRC policy statement would, among other things, enable the NRC to maintain uniformity in its relations with all the States, strengthen Federal-State cooperation,

li' '

-2 reduce duplication of effort, encourage the development of a unified NRC/ State position ~cn matters of joint' concern, avoid the' percept' ion'of dual regulation and improve nuclear.. safety. By giving " host" States, i.e., States in:which an NRC licensed facility is located, a greater' opportunity to participate _with NRC in matters involving the use of radioactive materials, including the use

- of those materials in nuclear power reactors located within the State, States-

' would become better informed about the day-to-day activities of HRC licensees'.

With the opening of these avenues of communication, NRC licensees would be made more aware of State concerns in related areas.

Two States stated that they are prepared to enter into a joint inspection program with NRC at this time. One State expressed no immediate interest but'

~

indicated that it might wish to participat,e in such'a program in the future.

This State was supportive of the six conditions specified in the Policy ,

Statement as prerequisites to State participation in NRC inspections and inspection entrance and exit meetings in accordance with the provisions of an instrument of cooperation entered into with NRC. One State indicated that it would appreciate routine notification of NRC inspection activities and public j meetings affecting the State. One Stato supported, while another State opposed, independent State inspections of federally regulated facilities. The stated reasons for opposing such inspections were that they would confuse the ,

regulated sector and would require the expenditure of scarce State resources in an area in which there is already adequate Federal enforcement. Noting the possible difficulty of securing needed funds for such inspections, one State recomended that the policy statement include suggested means of funding State  ;

inspections.

b c - - _ _ _ - - - - - - _ - .

l .

Noting that State needs for interaction with NRC are especially important in areas which are substantially affected by NRC actions but for which the State has central responsibility (e.g., rate-making, if emergency i

l preparedness, environmental protection) several States expressed concern j t

regarding the extent to which their differing needs and responsibilities would be accommodated under the NRC policy. Some States expressed the view that because of differing nature of State responsibilities, States might find it difficult to qualify for a Federal / State instrument of cooperation. One State suggested that the policy statement affirmatively recognize "the value of cooperation between the NRC and the States in areas where there is rutual interest but differing goals and responsibilities." Another State suggested that State representatives should be permitted to participate as observers in NRC enforcement, policy, exit or other meetings whenever the matters addressed involve issues of concern to the State.

Several States objected to that portion of the policy statement which would channel all communication between NRC and a State through the State Liaison Officer on the grounds that this procedure is too restrictive. Noting the needs of various State agencies to maintain a continuing relationship and ongoing dialogue with NRC, these States recommended that the policy statement be modified to allow for more than one State contact.

-1/ For example, for nine years the New York Public Service Commission has had staff located at the Nine Mile Point site and until recently at Shoreham for the purpose of construction monitoring in order to evaluate the reasonableness of construction costs that directly affect base rates as well as operation and maintenance expenses.

I i

. _ _ _ _ _ _ _ _ - - _ _ - )

< The comments submitted by the Oregon Department of Energy reflect Oregon's experience in implementing the provision? of a 1979 State law

. requiring the presence of.a State inspector at the site of the Trojan Nuclear Facility.in accordance with the provisions of an agreement relating to resident inspectors entered into between NRC and the Oregon Department of Energy (OD0E) in January 1980. Pursuant to these arrangements, ODOE participates in many of NRC's regulatory activities at Trojan. Based on its experience over the past eight years, 000E is of the opinion that " personal interaction with plant staff is essential in gaining the information needed to accurately assess and influence plant safety." According to ODOE, this experience demonstrates that State and NRC regulatory programs can be -

complementary without being duplicative and that State-Federal interaction on plant safety issues has been very productive. In its comments, ODGE also states:

"There have been no instances where Oregon has misinterpreted NRC safety requirements. Oregon regulators have never redirected the licensee's attention to areas not consistent with NRC safety priorities. And our agreement with the NRC prevents such problems from occurring. It states: l

"'If ODOE finds it necessary to direct the operators of Trojan to take action, 000E shall obtain NRC's prior agreement that such action does not have an adverse effect on plant or public safety. '"

j o,-

Expressing appreciation of NRC's cooperative approach to Oregon's regulatory program and noting that Oregon has' worked hard to build and maintain public confidence that State and Federal regulatory programs assure safe operations at Trojan, ODOE expressed its belief that this relationship l

has benefited NRC and that dilution of the State's regulatory role to the-level in the draft policy statement would not be in the best interest of the public.

Citing concerns relating to the operation of the Peach Bottom nuclear power reactor, located in Pennsylvania only three miles north of the Pfaryland

- Pennsylvania border, Pfaryland expressed the view that the benefits accorded States under the policy statement should not be limited to " host" States, but should also be extended to all States within ten miles of a nuclear power plant.

One State expressed general concern with the provision in the policy statement which would require States, as a condition of entering into an instrument of cooperation with NRC for the purpose of State participation in inspections and inspection entrance and exit meetings, to recognize "the Federal Government, primarily NRC, as having the exclusive authority and responsibility to regulate the radiological and national security aspects of the construction and operation of nuclear production or utilization facilities, except for certain authority over air emissions granted to States by the Clean Air Act." (53 FR 21982, June 13, 1988.) This State declared that it "will not concede that the federal government has unqualified and unspecified authority over these matters where public health, safety and

environmental concerns are at risk." Noting that in 1985 it had entered into an agreement 1/ with NRC Region V which established a mutually acceptable procedure for the exchange of information ~concerning maintenance, engineering, quality assurance, security, emergency planning and operation of nuclear power plants located in the State, this State stated that it "will review the final policy statement adopted by the Commission to propose changes in the existing agreement which may be mutually oroductive."

Several States questioned the teed to require State programs carried out under an instrument of cooperation to specify " minimum education, experience, training, and qualification requirements for State representatives which are patterned after those of NRC inspectors." In the opinion of some States, the standard of knowledge and training appropriate for State observers need not be as stringent as that for State inspectors. Other States expressed the view that the training and educational requirements applicable to Federal and State personnel need not be identical but should instead bear some reasonable' relationship to the differing jurisdictional responsibilities of the Federal government and the States. One State questioned the provisions of the policy statement characterizing qualified State representatives as those

" knowledgeable in radiological health and safety matters." This State pointed out that "[i]f the intent of this definition is to exclude persons from disciplines other than radiological health and safety, it will unreasonably 2/ In accordance with this agreement, State personnel have attended NRC inspector's exit meetings, shared information on environmental monitoring, participated in significant meetings between plant management personnel ar.d senior representatives of NRC and worked jointly with NRC on emergency response drills and exercises.

l l

6

- 7'-

limit. state involvement . . . ." and that "[t]his narrow a definition would contradict the spirit,-if not the. intent,'of the objective of furthering federal / state cooperation."

In addition, the State commenters recommended that the policy statement be revised in the following respects:

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p o The policy statement should recognize the unique and diverse communication needs of various State agencies and allow for more than one State contact.

O The policy statement should affirmatively recognize the value of cooperation between NRC and the States in areas where there is mutual interest but differing goals and responsibilities.

o The policy statement should be broadened to recognize the States' needs for interaction with the NRC in areas central to State responsibilities, but substantially affected by NRC actions.

o The second paragraph of the Implementation section should be revised by inserting the following sentence between the fifth and sixth sentences in that paragraph:

"After a positive assessment, State inspectors' inspections may be conducted individually and would be coordinated with the NRC resident inspector."

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o The policy statement should be revised to accord all States located within ten miles _3/ of a comercial nuclear power reactor the same rights and responsibilities accorded-to the State in which the reactor is sited.

o The policy statement should include suggested means by which a State could obtain funding for its irspection program.

l Public Interest Coments The comments from the public interest group expressed support for the

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. policy statement because it offers some important opportunities for State involvement in the protection of the health a'nd safety of citizens and commended the NRC for taking the initiative in pursuing cooperation with  !

l States.

Industry Comments Fourteen comments were received from representatives of the nuclear power industry, including one from a major industry organization, two from legal counsel on behalf of fifteen electric utilities holding NRC operating licenses i for nuclear power plants, and eleven from individual electric utilities holding NRC operating licenses; three of the latter were also included in the group of electric utilities represented by legal counsel.

l 3/ An industry comenter noted that in the case of a particular facility, the Comission might find it necessary to deal with the concerns of all States located within 50 miles of the ingestion pathway.

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For the most part, the industry commenters acknowledged the legitimate concerns of the States in being kept well-informed of NRC's activ.ities with respect to the regulation of. commercial nuclear power plants. >The industry comenters aln axpressed general support for the Comission's overall. goal of

' promoting and enhancing NRC/ State cooperation. One commenter expressed the view that " policies which aid qualified State representatives in improving.

their understanding of the design and operation of'. . . [comercial nuclear power plants] are beneficial to all parties and should be encouraged." One comenter characterized the policy statement as "a timely reaffirmation of federal preemption in the area of nuclear safety, which properly focuses.on state observation and participation in NRC meetings and inspections." .One

. comenter expressed affirmation support for the Comission's' stated position that in those instances in which inspections were conducted by State representatives, "[a]Il enforcement action will be undertaken by the NRC."

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(53 FR 21983, June 13, 1988.)

The industry comenters were in substantial disagreement, however, as to.

how this goal might best be achieved. Two comenters expressed unqualified support for'the policy statement as published June 13, 1988, one stating that the policy statement correctly maintains the current balance between Federal and State authority'in the field of nuclear regulation, the other urging that the Commission promulgate the policy statement in final form as soon as practicable. Two commenters considered the policy statement's six criteria for an acceptable State proposal for entrance into an NRC/ State instrument of cooperation relating to nuclear power plant inspections to be reasonable and appropriate. Howeve*, one of these comenters was concerned that the policy statement does not address how the NRC will enforce its authority should a

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-State: representative exceed the scope of his/her authority under an instrument of cooperation. In order to assure continuing compliance, the commenter recommended.that either the policy statement or the instrument of cooperation-provide for some sort of periodic review.

Several commenters expressed contrary views. One commenter did not believe a policy of allowing State participation in routine inspection activities to be necessary or in the best interest.of the NRC or its

. licensees. Another commenter expressed the. view that legitimate concerns of States regarding the safety and operation of nuclear power plants could be addressed in the currently prescribed licensing process. However, this commenter was also of the opinion that the NRC should proceed on a case-by-case basis 4/ if it feels State input is essential. The commenter 4/ If the'NRC should' decide to proceed in this manner, the commenter recommended that the following guidelines should be followed:

The NRC should:

o consider a State's concerns regarding safety of a nuclear power plant responding, when necessary, with an inspection which could include State observers; o provide a State with timely information regarding its concerns, providing the information is not proprietary or does not pertain to security matters; o include State representation in public meetings with the licensees; o obtain State assistance when such assistance would be a benefit to the NRC in its regulatory duties; and i

o have complete oversight of State activities regarding nuclear i safety. 1 1

(FOOTNOTE CONTINUED ON NEXT PAGE)

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also noted that the policy statetent as published for canuent.is ambiguous and that'"[t]his ambiguity can lead to a situation where a State, for whatever-reason, could hinder the NRC in its regulation of nuclear' power."

I Most commenters endorsed the second paragraph of the policy statement which provides that:the NRC will (1) contin.ue to keep. Governor-appointed State LiaisonOfficersroutinelyinformedonmattersofinteresttoStates,(2) respond in a timely manner to a State's requests for information and to its recommendations concerning matters within the NRC's regulatory , jurisdiction, (3) upon request, routinely inform State Liaison Officers of public meetings between NRC and its licensees and applicants in order that State representatives may attend as observers, and (4) upon. request, permit State i

representatives to observe but not to participate actively in specific <

inspections and/or inspection entrance and exit meetings where State' representatives are knowledgeable in radiological health and safety matters.

In the opinion of the commenters, these provisions. constitute both an appropriate and an adequate basis for achieving the desired communication and cooperation between the Commission and the States. Two commenters expressed a willingness to have State representatives present at public meetings with NRC licensees. These same two commenters favored giving States timely information (FOOTNOTE CONTINUED FROM PREVIOUS PAGE)

The NRC should not:

o permit independent State inspection programs or reviews; o delegate responsibility for performing NRC inspections to State representatives.

provided the information in question did not relate to proprietary or security matters.

Viewing the observation process as a logical first step to ultimate participation in.NRC inspection activities, one comenter expressed concern that State representatives should be allowed to observe NRC inspections and/or NRC inspection entrance and exit meetings solely on the approval of an NRC Regional Administrator. In the opinion cf the commenter, observation by State representatives should be delayed until the State and NRC have signed a formal instrument of cooperation.

Most industry commenters, including the respective legal counsel retained by electric utilities holding NRC operating licenses, opposed, in whole or in part, those portions of the policy statement. which seek to achieve the goal of -

NRC/ State cooperation by delegating to the States any part of the Commission's authority to conduct inspections at nuclear power plants. In particular, the commenters objected to the provisions of the policy statement which relate to State proposals to enter into instruments of cooperation for State participation in NRC inspections of commercial nuclear power plants and in NRC inspection entrance and exit meetings, and the types of inspection activities which qualified State representatives may be permitted to perform. some of the commenters opposed any type of State inspection program, whether conducted independently or under continuing NRC oversight. Other commenters were principally concerned about those passages of the policy statement which, in their opinion, carry "the clear implication . . . that there will be occasions l

on which State representatives will be allowed to conduct their own

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inspections at nuclear generating plants 'on behalf of' the NRC, unaccompanied by NRC representatives." 5/ Two commenters who opposed independent State inspection programs indicated a willingness to accept State participation in NRC inspections as long as the State representatives were always accompanied by a qualified NRC inspector. One of these cornenters suggested that the role of State representatives at an NRC inspection should be the same as that 1

I accorded NRC consultants.

The commenters who opposed any type of State inspection program, whether conducted independently or under continuing NRC oversight, strongly urged the Commission to provide specifically that no State radiological health and safety inspections of MRC-licensed commercial nuclear power reactors will be permitted, independent or otherwise. In their view, the role of State representatives should be strictly limited to observation of, or participation in, entrance and exit meetings. Noting that implementation of this aspect of the policy statement wculd make the regulatory process unnecessarily complicated and redundant--under the policy NRC staff would be required both tc qualify State inspectors and to assume full responsibility for the manner in which State inspectors conduct any subsequent activities--the commenters based their objections on legal, policy and practical grounds.

According to these commenters, the Atomic energy Act of 1954, as amended, gives the NRC exclusive responsibility for regulating the radiological and

-5/ According to one commenter, ". . . the policy statement completely fails to establish the legal authority of State representatives to alone inspect nuclear safety activities -- in the words of the policy statement, 'on behalf of the NRC.'"

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national security aspects of the construction and operation of nuclear production and utilization facilities. Therefore, under the doctrine of Federal preemption, States are without legal authority to conduct inspections ,

I of nuclear power plants for the purpose of protecting the radiological health l l

end safety of the public. By the same token, NRC is also precluded from delegating to other persons, including States, any of its regulatory i responsibilities respecting such facilities, including, among others, the responsibility of inspecting commercial nuclear power reactors. The commenters are also of the view that delegation of inspection authority to State representatives as proposed in the policy statement exceeds the scope and intent of section 274 of the Atomic Energy Act of 1954, as amended. In the opinion of these commenters, section 2741 of the Act does not provide an independent legal basis for entering into agreements with States, but must be read in the context of section 274 of which it is a part. Under the provisions of section 274b, States are only authorized to enter into agreements to regulate materials, specifically, source, byproduct, special nuclear material and low-level radioactive waste. Section 274c of the Act, which reserves certain authorities to the Commission, makes clear that the responsibility for regulating nuclear power reactors from the star.dpoint of radiological health and safety remains with the NRC. In view of these statutory provisions, it is the considered opinion of the commenters that, under existing law, section 274i "should properly be read to permit only inspections related to . . . materials" and to allow "NRC to enter

' instruments of cooperation' only with respect to licensed activities other than commercial nuclear power reactors (e.g., materials licensees) or wiu-respect to matters other than radiological health and safety (e.g., certain

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environmental matters.)" Section 2741 should not be read as authorizing NRC to enter into agreements with States under which States will conduct inspections of commercial nuclear power' plants for NRC.

The commenters also viewed the provisions of the policy statement inviting States to enter into instruments of cooperation with NRC for the purpose of participating in NRC inspections and inspection entrance and exit meetings as contrary to law because such arrangements constitute dual cr concurrent regulation. As the legislative history of section 274 of the Atomic Energy Act of 1954, as amended, makes clear, it was the intent of section 274 that regulatory authority either be exercised by the Federal government or by the States, but not'by both.

The commenters also objected to the provisions of the NRC policy statement respecting the use of State inspectors at~ nuclear power plants in dCCordance with NRC/ State instruments of cooperation on the ground that despite these arrangements such activities coulo have negative implications for public health and safety. According to the commenters, permitting States to participate in NRC inspections would greatly increase the likelihood of divergent Federal and State interpretations of regulatory requirements which would, in turn, create uncertainty and confusion, inject an unsettling and destabilizing eleme-t into the regulatory process and result in significant delay in the resolution of specific problems identified during an inspection.

In connection with this objection, the commenters noted the parallel concerns expressed by NRC "that independent State inspection programs could direct an applicant's or licensee's attention to areas not consistent with NRC safety priorities, misinterpret NRC safety requirements, or give the perception of dual regulation." (53 FR 21981, June 13, 1988.) As an example of the

4 practical difficulties that might be encountered, the commenters pointed to the Commission's own recent experience with its emergency planning regulations which accorded State and local governments a substantial role. According to the commenters, ' history has shown that those regulations have resulted in State-imposed delays on reactor operations, and in one case, a finished power plant apparently will be torn down before it ever operates." The commenters also expressed the view that these difficulties could engender frictions which if left unresolved could defeat the avowed purpose of the Commission's policy to enhance cooperation with the States.

Claiming that the policy statement does not appear to address any clear need and that its implemen'tation is unlikely to result in any significant benefits other than greater coordination of Federal / State activities, the ,

commenters pointed out that arrangements'for State participation in NRC inspections under in'struments of cooperation would be expensive and would likely result in inefficient utilization of rete payer resources. For example, NRC personnel would be required to devote time and resources to training, qualifying, managing and communicating with State personnel and to overseeing the State's program. In addition to paying for time billed by PRC, NRC licensees would likely be called upon to provide on-site facilities and services for State personnel participating in nuclear power plant inspections comparable to those provided to NRC resident inspectors. States would be required to bear the direct corts, e.g., hiring expenses, salaries, employment benefits, of hiring and maintaining a cadre of individuals qualified to conduct inspections of commercial nuclear power plants. In the opinion of one commenter, it would be less wasteful and more cost effective to have a few NRC inspectors with appropriate training and expertise than to have many States

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acquire these capabilities. In this connection, the commenter questioned whether NP,C would be able, in view of continuing budget constraints, to give State inspectors proper training and maintain an appropriate level of oversight of State inspectors and State inspection programs.

Several commenters criticized the policy statement because it failed to address such practical problems as how the NRC will judge the adequacy of a State inspection program and how the NRC will assure the competence of State inspectors and whether these determinations will b2 rade by the Region:; or at NRC Headquarters. In the opinion of the commenter, uniform interpretation of the policy statement could best be assured by including a detailed description I

of an adequate State program and specifying minimum qualifications for State inspectors.

One commenter recommended that the policy statement provide for I arbitration as a method of resolving problems in those instances in which a State representative or State inspector is less than fully qualified. Another commenter requested that NRC licensees be informed whenever a State initiates negotiations with NRC regardina an instrument of cooperation so that the licensees could participate in the process.

One commenter noted that in the case of a particular facility, it might be necessary for the Commission to deal with the concerns of several States, for example, States located within 50 miles of the ingestion pathway, instead of limiting Comission consideration to the concerns of the State within which the facility site is located. Another comenter had no objection to keeping appropriate representatives of neighboring States apprised of regulatory activities at a specific facility but urged that the on-site presence of State

personnel be limited to representatives of the State in which the facility is located.

Three commenters expressed the view that the NRC should closely monitor and periodically evaluate the implementation of whatever policy is finally adopted and any instruments of cooperation executed thereunder to assure that the program is effective, that there is no misapplication of authority, and that the best interests of the Nation are being served.

In addition, the industry commenters recommended that the policy stateme.it be revised in the following respects:

o The policy statement should provide specifically that no State radiological health and safety inspections of NRC-licensed commercial nuclear power reactors will be permitted, independent or otherwise.

o The policy statement should strictly limit the role of State representatives to observation of, or participation in, NRC entrance and exit meetings. The additional qualifications applicable to State representatives as currently incorporated ,in the policy statement (e.g., that State representatives should be knowledgeable) should be retained.

o The policy statement should provide that State representatives may participate in NRC inspections only as observers, and may not alone inspect NRC-regulated activities (even if those inspections would be

conducted with the cooperation of the NRC and in accordance with NRC inspectionprocedures).

o The policy statement should prohibit State disclosure of inspection findings both before and after release of the NRC inspection report.

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1 o The policy statement should apprise potentially affected licensees and applicants that their State is pursuing an instrument of cooperation with the NRC and provide for these licensees and applicants an opportunity to comment on drafts of instruments of cooperation duri,ng negotiations between'the NRC and the State.

o The policy statement should specify how the NRC will enforce its authority should a State representative exceed the scope of his/her authority under an instrument of cooperation.

o The policy statement should provide for renegotiation of existing instruments of cooperation between the NRC and the States at the 6/ This recommendation was based on the commenter's view that the release by a S+. ate of underlying inspection data, notes, observations and findings enn after release of an NRC inspection report could be prejudicial to the NRC's inspection and enforcement process, particularly if the information released by the State appeared on its face to be inconsistent in any way with the ultimate findings of the NRC inspection report.

Another commenter stated that State observers should be required not to divulge any information obtained without prior clearance by the NRC.

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earliest opportunity,'to' bring the existing = agreements into.-

conformance with the policy statement.

o The policy statement should explicitly limit any "on-site" presence of State personnel to representatives of the State in which the facility is located.

NRC RESPONSE Introduction

. As the preceding summary indicates, the commenters offered several

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suggestions for modifying the policy statement and expressed concerns on a variety of matters, including, among others: legal issues; the effect which implementation of the policy statement could have on NRC licensees; the use of-State Liaison Officers as the preferred channel of-communication between the States and NRC; the nature of State participation in NRC inspections.

. including the advisability or inadvisability of State participation, the.

qualifications of State representatives, the status to be accorded J l

representatives of adjacent States, and the handling and use of information i

obtained during an NRC inspection. The commenters also expressed concerns

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regarding the role, if any, to be accorded applicants for or holders of NRC licenses for comercial nuclear power reactors and other nuclear production and utilization facilities during ongoing negotiations between NRC and a State regarding the terms of a NRC/ State instrument of cooperation.

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Mgal~ Issues.

We turn first'to the commenters' legal concerns that the portions of the

. policy statement which provide for State participation ~ in NRC inspections 'at.

comercial nuclear power plants and in NRC inspection . entrance and exit l ,

meetings in accordance with the provisions of an NRC/ State instrument of cooperation are contrary to law because such activities are precluded by the l

~ doctrine'of Federal preemption and beyond the scope of section 274 of the Atomic Energy Act of 1954, as amended.

Section 161 of the atomic Energy Act of 1954, as amended, sets forth.the general powers of the Comission in licensing or regulating any of the

activities authorized by the Act, including the licensing and regulation of utilization and production facilities. Section-161f (42 U.S.C. 2201(f)) which is identical to section 12(a) of the Atomic Energy Act of 1946 and has remained unchanged since February 17, 1954 when it was reenacted into public law (Pub. Law.703,68 Stat.949)provides:

"Sec.161. General Provisions. -- In the performance of its functic,s 'the Comission is authorized to --

"f. with the consent of the agency concerned, utilize or employ the services or personnel of any Government agency or any State or local government, or voluntary or uncompensated personnel, to perform such functions on its behalf as may appear desirable;"

This provision, standing alone, gives the Comission broad discretionary authority to enter into arrangements with States respecting inspections at nuclear power plants, including arrangements pursuant to instruments of cooperation as described in the policy statement.

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i-l l' In 1959', at the time of the enactment of the-Federal / State Amendment.

-which added section 274 to the Atomic Energy Act of 1954, Congress clarified this authority in section'161f by providing in.the first sentence.of section .

2741 that. o "The Commission in carrying out its licensing and regulatory responsibilities under this Act is authorized to enter into agreements with any State, or group of States, to perform inspections or other functions on a cooperative basis as the Commission'deemsappropriate."(Emphasissupplied.)

The legislative history of section 274 7/ contains no evidence that the first sentence in section 2741 was intended to limit the broad scope of the Commission's authority in section 161f to those matters over which the States were authorized to assume regulatory authority in acco' dance with the '

provisions of section 274b agreements. The legislative history merely ,'

indicates that one pennissible way in which the Commission may exercise its authority under section 161f is " . . . .to enter into agreements with any State, or group of States, to perform inspections or other functions on a cooperative basis as the Commission deems appropriate." For the foregoing reasons, the Commission disagrees with the conclusion of the commenters that section 2741 does not provide an independent legal basis for entering into agreements with States.

The commenters' objections that the provisions of the policy statement relating to State participation in NRC inspections at commercial nuclear power

-7/ For an account of the legislative history of section 274, see NUREG 0388, I Final Task Force Report on the Agreement States Program, December 1977, Appendix A, especially pp. A A-6.  ;

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. plants pursuant to an NRC/ State instrument of cooperation are contrary to law -

by reason of the doctrine of Federal preemption are equally without merit. i Federal preemption, which is based on the Supremacy Clause of the Constitution, resolves controversies which arise as a result of the -

conflicting demands of Federal and State laws. Here there is no conflicting State law. The only document of concern is a policy statement prepared by a Federal agency which states in the clearest possible' terms that it will be implemented at both the State and Federal level in strict accordance with applicable law. 8/ Since, as the above analysis shows, the policy statement is within NRC's statutory authority, there is no preemption issue.

A related concern expressed by a State commenter was that any formal acknowledgement by a state of.NRC's legal authority, as recited in the first of the six conditions enumerated in the policy statement, might be viewed as a ,

relinquishment by a State of some part of the State's rightful authority to protect the health, welfare and environment of its citizens. It is not the purpose of the policy statement to alter the respective responsibilities of 8/ For example, the policy statement affirmatively "[r]ecognizes the Federal Government, primarily NRC, as having the exclusive authority and responsibility to regulate the radiological and national security aspects of the construction and operation of nuclear production or utilization facilities, except for certain authority over air emissions granted to States by the Clean Air Act;. . ." the policy statement also identifies six elements which must be included in a state proposal for an instrument of cooperation in order to assure the proposal's consistency with the provisions of section 274c. of the Atomic Energy Act of 1954, as amended.

Section 274c provides in part that "[n]o agreement entered into pursuant to subsection b sha?1 provido for discontinuance of any authority and the Commission shall retain authority and responsibility with respect to regulation of -- (1) the construction and operation of any production or utilization facility; . . ."

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~ 1 the Federal government and the States or to require the States to concede to  !

the Federal government any areas of the legitimate State responsibility. The only purpose of the policy statement is to describe the ground rules under which representatives of States can participate in NRC inspections and related 4 meetings, a Federal function. Accordingly, it is both reasonable and appropriate that the Comission should identify in the text of the policy i

statement the legal authority on which its policies and regulatory activities are based, and to ask the States to recognize that the inspections which they will be participating in are Federal, not State, inspections. As further evidence of the fact that it is not the purpose of the policy statement to encroach on the lawful exercise of State prerogatives, the Comission will continue its prior practice of including a general provision in agreements entered into with States under section 2741 of the Atomic Energy Act of 1954, as amended, which states that nothing in the agreement is intended to restrict ,

or expand the statutory authority of either URC or the State.

Implementation of Policy Statement - Effect on NRC Licensees; Costs According to industry comenters, implementation of the provisions of the policy statement respecting the use of State inspectors at nuclear power plants in accordance with NRC/ State instruments of cooperation is likely to have a negative effect on public health and safety. In the opinion of these comenters, permitting States to participate in NRC inspections would not only create the appearance of dual regulation but would also greatly increase the likelihood of divergent Federal and State interpretations of regulatory requirements. The resulting uncertainty and confusion would inject an unsettling and desthbilizing element into the regulatory process and could

significantly delay efforts to resolve specific problems identified during an inspection.

State commenters expressed contrary views. In the opinion of these commenters, implementation of the NRC policy statement would foster uniformity, strengthen Federal-State cooperation, reduce duplication of effort, encourage the development of a unified NRC/ State position on matters of joint concern, avoid the perception of dual regulation and improve nuclear safety.

Based on its experience with State resident inspectors at the Trojan Nuclear Power Plant in Oregon, which has demonstrated that ca.plementary  !

State-Federal interaction on plant safety issues can be productive, the Commission believes that the concerns expressed by the industry comenters are unrealistic and exaggerated. The Commission reiterates its c'ommitment, as stated in the Implementation section of the policy statement, to perfonn a formal review of a memorandum of understanding (M0U) between NRC and a State relating to State involvement in NRC inspections

. . . not less than six months after the effective date [of the MOU] . . . to evaluate implementation of the MOU and resolve any problems identified. Final agreements will be subject to periodic reviews and may be amended or modified upon written agreement by both parties and may be terminated upon 30 days written notice by either party."

In view of this commitment, as well as the Commission's announced intent that activities undertaken to implement the policy statement shall be carried

out in close cooperation with'and be subject to oversight by the'NRC, the Commission _has concluded that the_ concerns raised by the industry commenters lack substance and that at this time no change in the policy statement is warranted.

State and industry commenters also expressed concerns regarding the costs-of implementing the policy statement.- Noting that States might experience difficulty in obtaining needed funds, one State recommended that the policy statement include suggested means of funding State " ;pections. Industry commenters were concerned that implementation of the policy statement would result in the assessment of higher regulatory fees.

The Comission does not intend to charge licensees additional fees for regulatory activities because those activities are. conducted in accordance with the provisions of the policy statement. Nor does the Comission expect or intend any increase in regulatory costs as a result of adopting and promulgating the policy statement. In view of these circumstances, the concerns expressed by the industry comenters do not-appear to be well founded.

Although requested to do so, the Comission has declined to revise the policy statement in order to address the topic of possible sources of State funds. This position is consistent with the underlying policy of the 1959 Federal-State amendment to the Atomic Energy Act of 1954, as amer,ded, which makes no provision O' the expenditure of Federal funds for the purpose of administering State tegulatory programs.

Communication through State Liaison Officers Several States objected to that portion of the policy statement which would channel all communication between NRC and a State through the State 1

Liaison Officer on the grounds that this procedure is.too. restrictive. Noting the needs of various State agencies to maintain a continuing relationship and.

ongoing dialogue with NRC, these States recommended that the policy statement be modified to allow for more than one State contact.

The Commission is well aware of the varying interests of States in the activities of commercial nuclear power plants and of the number of different State agencies with direct responsibility for various aspects of those activities. It is precisely because this situation exists that the Commission has adopted a policy which requires that all inquiries and requests from States respecting observations and inspections at commercial nuclear power 3

plants and all information from NRC to States respecting these matters be channeled through a single point, namely the office of the State Liaison Officer. This arrangement not only assures the Commission that NRC -

information of interest to the States will be sent forward to those State agencies that need to know, it also assures interested State agencies that their requests and inquiries will be handled in a uniform and businesslike manner. Since the primary purpose of the policy statement is to articulate the manner in which the Commission plans to conduct its business in this area and to provide guidance to NRC Regional Offices which will assure that these matters are handled uniformly, it is neither necessary nor appropriate to modify the policy statement to elaborate further on the differing nature or wide variety of State responsibilities.

For the foregoing reasons, the Commission has made no change in the provisions of the policy statement which relate to communication through State i Liaison Officers. The Commission has also concluded that the policy statement

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adequately reflects the complementary interests and responsibilities of the

. States and that no changes relating to this matter'are needed.

State Attendance at and_ Participation'in NRC Inspections, Citing the likelihood of increased complexity, confusion and uncertainty -

in the. regulatory process and the possibility of an attendant reduction in the safety of nuclear power plants, most of the industry commenters opposed allowing State representatives to participate in NRC inspections and stated that in no event should State representatives be allowed to perform independent inspections or reviews.

A.s noted earlier, the Commission does not consider the concerns of the industry commenters regarding a possible decrease in nuclear safety well founded. At the same time, the Commission wishes to make quite clear that the policy statement does not contemplate and should not be interpreted as authorizing States, using State radiological health and safety standards, to conduct independent health and safety inspections of commercial nuclear power plants.

As explained in the policy statement, the NRC inspections and associated i entrance and exit meetings which State representatives will be permitted to l

attend as observers or as participants, for the purpose of assisting NRC, will be conducted under the close and continuing surveillance of the NRC and in 1

strict accordance with Federal standards and regulations. The presence of the l

NRC is essential not only because all communications with the licensee must be made through the NRC but also because the NRC is solely responsible for taking any needed enforcement action. Where an enforcement conference is held with  !

the licensee as an extension to a particular inspection which the State  !

observed or participated in, the State representative who attended the l

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inspection will be invited to the enforcement conference. If information relevant to an NRC enforcement matter was obtained by a State representative during an inspection and subsequently made available to the NRC, it is expected that the State representative would also be invited to attend the enforcement conference. Moreover, State assistance, including testimony at any enforcement hearing, may be needed to carry out NRC's enforcement pregram.

A related matter concerns the role to be accorded State representatives who wish to attend or participate in entrance and exit meetings and inspections of nuclear power reactors located in adjacent States. Despite disagreement on the criteria to be used to identify adjacent States, there was I

a general consensus among commenters who addressed this issue that '

l representatives from adjacent States shoul'd be permitted to attend meetings '

and inspections subject-to 'the same conditions that apply to representatives

'from the host State.

The Commission has given considerable thought to this matter and has concluded that for the time being and in accordance with its original intent, the scope of the policy statement should be limited to cooperation between NRC and " host" States, i.e., States in which an NRC licensed facility is located.

After the Commission has gained some practical experience in implementing the present policy, it will reconsider the question of whether and to what extent the policy statement should be broadened to encompass cooperative arrangements between NRC and " adjacent" States.

The policy statement makes clear that State representatives must be properly qualified to undertake their assigned roles, whether as participants or observers. Although State representatives who only observe need not be as knowledgeable technically as State representatives who actively participate in

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inspections, they must have some general understanding of the nature of nuclear power for the observation to be meaningful. Consistent with those provisions of the policy statement which contemplate that State representatives will be qualified to perform any tasks they may be assigned, it is the expectation of the Comission that, subject to specific guidelines contained in the formal instrument of cooperation entered into between NRC and  ;

a particular State, the extent to which State representatives may be pennitted to participate in an NRC inspection will be determined in each instance by the NRC representative authorized to conduct the inspection in light of the l particular qualifications of the State representative accompanying the NRC inspection team. Whil.e the Comission recognizes the importance of specifying minimum qualifications for State inspectors, as suggested by one of the comenters, it is of the opinion that this matter can best be dealt with in the context of each NRC/ State instrument of cooperation when the qualifications of individuals who may be able to perform this function for the State are likely to be better known. In its present form, the policy statement provides adequate general guidance on this matter. For these same reasons, the Comission has also declined to adopt the suggestion of a State comenter to add an additional sentence concerning State inspectors to the I second paragraph of the Implementat' ion section. Accordingly, the Comission ,

has made no changes in the policy statement in response to these comments.

Several comenters expressed the view that the policy statement should prohibit State disclosure of inspection findings after as well as before the NP,C inspection report is publicly released. Commenters also expressed concern about the disclosure by Sttte representatives of any underlying data obtained or any notes or observations made while attending or participating in an NRC

, inspection. The Comission is of the opinion that insofar as State representatives are apprised of this information as a result of their l involvement in NRC's regulatory activities, that State representatives should be required to meet the same standards as their NRC counterparts regarding information disclosure.

Opportunity for Public Comment on NRC-State Instruments of Cooperation i

Relating to Inspections at Comercial Nuclear Power Plants The Commission has given considerable thought to the suggestion of some of the industry commenters that potentially affected applicants for NRC licenses and NRC licensees should be notified that their State is pursuing an instrument of cooperation with NRC and be accorded an opportunity, during ongoing negotiations between N'C R and the State, to submit public comments on the draft instrument of cooperation before it is finally agreed to by NRC and the State. The Comission recognizes that the subject matter of these instruments of cooperation is of great interest to nuclear power plant applicants and licensees, who are, of course, the entities that will be inspected.

The Comission published the policy statement in the Federal Register for the express purpose of obtaining public coment. Thus NRC applicants and licensees have already had an opportunity to express their views and concerns on the principal policy issues relating to the conduct of NRC/ State inspections at commercial nuclear power plants, including issues relating to the scope and content of NRC/ State instruments of cooperation. In the opinion of the Comission, it would not serve any useful purpose automatically to accord NRC applicants and licensees a further participatory role in negotiations between NRC and a particular State regarding the terms of a

specific agreement. As the provisions of the Comission's statement of policy nake clear, the inspections to which these NRC/ State instruments of cooperation will relate will be conducted in strict accordance with existing NRC standards and regulations, thereby assuring that the obligations imposed on and the rights accorded NRC licensees in connection with NRC inspections will be scrupulously observed. In each case, negotiations between NRC and interested States will be narrowly limited to concerns which relate to the manner in which one of the Comission's own regulatory functions, namely the conduct of inspections, will be implemented by NRC in those instances in which a State has indicated its willingness to assist in performing certain aspects of that function on NRC's behalf. In the opinion of the Comission, details of this kind can be'readily resolved through negotiation between the principals and do not present the kinds of issues on which further public coments will always be needed or required. Accordingly, the Comission has not mo'ified d the policy statement to provide an opportunity for interested NRC applicants and licensees to participate in ongoing NRC/ State negotiations by i

submitting public coments.

I Conclusion For the foregoing reasons and after careful consideration of the comments ,

submitted, the Comission has concluded not to change the text of the policy statement as published for comment on June 13, 1988 (53 FR 21981).

Accordingly, the Comission hereby adopts and republishes that policy )

statement as a final statement of policy. The Comission further declares ,

1 that the final statement of policy in its entirety is effective imediately. I l

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i APPENDIX C ,

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APPENDIX C - DRAFT FEDERAL REGISTER NOTICE NUCLEAR REGULATORY COMMISSION -

10 CFR Part 50 Cooperation With States at Commercial Nuclear Power Plants and Other Nuclear Production or Utilization Facilities; Policy Statement AGENCY: Nuclear Regulatory Commission ACTION: Final Policy Statement

SUMMARY

The Nuclear Regulatory Commission (NRC) believes that the agency's mission to protect the public health and safety and the environment can best be served by a policy of cooperation with State governments which unites the common gcals of the NRC and the States. In accordance with this policy statement, the NRC will keep Governor-appointed State Liaison Officers routinely informed on matters of interest to the States, and NRC will respond in a timely manner to State requests for information and State recommendations concerning matters within NRC's regulatory jurisdiction. If requested, the NRC will routinely inform State Liaison Officers of public meetings between the NRC and its licensees and applicants, in order that State representatives may attend as observers, and NRC will allow State observation of NRC inspecticn .

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activities. The NRC will consider State proposals to enter into instruments of cooperation for State participation in NRC inspection activities when these A

programs have provisions to ensure close cooperation with NRC. The NRC will not consider State proposals for instruments of cooperation to conduct inspection programs of NRC-regulated activities without close cooperation with, and oversight by, the NRC. This policy statement is intended to provide a

I 2-uniform basis for NRC/ State cooperation as it relates to the regulatory oversight of commercial nuclear power plants and other nuclear production or utilization facilities. Instruments of cooperation between the NRC and the States, approved prior to the effective date of this policy statement will continue ~to be honored by the NRC.

EFFECTIVE DATE: [ insert date of publication in the Federal Register]

FOR FURTHER-INFORMATION CONTACT: Carlton C. Kammerer, Director for State, Local and Indian Tribe' Programs, Office of Governmental Af fairs, U.S. Nuclear Regulatory Commission, Washington, DC 20555, Telephone: (301) 492-0321.

SUPPLEMENTARY INFORMATION:

I. Background The Atomic Energy Act of 1954 (the Act) was amended in 1959 to add section  :

274, " Cooperation With States". Section 274 of the Act provides the statutory ,

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basis for NRC/ State cooperation in nuclear matters and prescribes the framework for State regulation of certain nuclear materials. The focus of section 274 is primarily on protecting the public from radiological hazards of source, l

byproduct, and special nuclear materials below critical mass. Under section 274, the Federal Government, primarily NRC, is assigned exclusive authority and )

responsibility to regulate the radiological and national security aspects of the construction and operation of any nuclear production or utilization 1

facility, except for certain authority over air emissions granted to States by the Clean Air Act.

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The NRC has had extensive formal and informal interaction with the States throughout its history. The Agreement State Program, under section 274b of the Act, is an example of a formal program where the NRC relinquishes its regulatory authority over certain radioactive materials to the States. There I

are currently 29 Agreement States regulating approximately 65 percent of those licensees nationwide that use or manufacture those types of radioactive material. The Agreement State Program operates under two Commission Policy Statements, one for entering into section 274b agreements and one for periodically reviewing Agreement State radiation control programs for adequacy.

in protecting public health and safety and for compatibility with N'lC programs.

This policy statement supports continuatie si the Agreement State Program and is not mean't to affect it. l This policy statement is not intended to affect rights to notice-and to participate in hearings granted to States by statute or NRC regulations.

Under 10 CFP, Part 9, Subpart D, the NRC has provided procedures for handling requests for an NRC representative to participate or provide information in judicial or quasi-judicial proceedings conducted by States or  !

other courts and agencies. This policy statement supports these procedures and does not affect them.

Under 10 CFR 50.55a, the NRC has recognized the role of the States within the American Society of Mechanical Engineers' Boiler and Pressure Vessel Code (ASME Code) System. This policy statement does not affect the State and NRC relationship as leid out in the ASME Code.

The State Liaison Officer Program, established in 1976, provides a focal point in each of the 50 States and the Commonwealth of Puerto Rico for communication between NRC and the States. The Governor-appointed State Liaison I

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Officer.is L intended to be the principal person in the: State to keep the

. Governor informed of nuclear regulatory matters of interest to the Governor, to ,

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' keep other State officials informed of these matters, and to respond to NRC inquiries.

Other areas in which NRC and States have worked together include environmental monitoring around the premises of nuclear power plant facilities and participation in the Conference'of Radiation Control Program Directors, Inc., which adaresses radiological health in areas.such as' diagnostic and therapeutic X-rays, radioactive materials, and other related activities. >

Under subsection 2741 of the Act, the Commission is authorized, in carrying out its licensing and regulatory responsibilities to enter into'a MemorandumofUnderstanding(MOU)withanyStatetoperforminspectionsor other functions on a cooperative basis as the NRC deems appropriate. According j to'the legislative history of section 274, subsection 2741 clarifies the Connission's existina authority under subsection 161f which enables 'the NRC to.

obtain the services of State personnel to perform functions on its behalf as j may be desirable.

NRC has entered into MOUs with several States under subsection 2741.of the  ;

Act. MOUs have helped to facilitate environmental review during construction of nuclear power plants. At one point, there was a perceived need to broaden the basis for formal cooperative instruments with States under subsection 2741 beyond that of water quality MOUs. As a result, general or " umbrella" MOUs were negotiated, with subagreements on specific issues such as low-level waste package and transport inspections. Two unique agreements were negotiated with Oregon; one concerning the sharing of proprietary information regarding the i

Trojan facility and the other covering coordination of the State and NRC

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l resident inspector programs at Trojan. Additionally, the NRC has documented the protocol that States must follow to be permitted to observe certain NRC activities in " letter agreements."

In recent years, States have taken the initiative to monitor more closely l

comercial nuclear power plants and other nuclear production or utilization

-facilities within, and adjacent to, their State boundaries by becoming better informed and, in some cases, more involved in activities related to the regulation and operation of those facilities. It was this increased interest by States to become more actively involved in NRr activities hat caused the NRC to re-examine those agreements previously negotiated with States and to determine a uniform policy for how further State proposals should be handled.

In developing this policy statement to be used to respond to future State proposals, the Commission, recognizing that the regulatory responsibilities assigned exclusively to the NRC by the Act cannot be delegated, has considered: 4 (1) Those activities it deems appropriate for States to conduct on a cooperative basis and are desirable for State personnel to perform on behalf of the NRC; and (2) its oversigt.L responsibility to ensure that NRC standards, regulations, and proceduras are met where State representatives carry out NRC functions. Further, it is the Commission's intention to provide unifomity in

.its handling of State requests.

II. Sumary of Coments and NRC Response On June 13, 1988, the Comission's Policy Statement on Cooperation with States at Commercial Nuclear Power Plants and Other Nuclear Production or Utilization Facilities was published in the Federal Register for public coment (53 FR 21981.) The comment period expired July 13, 1988. In the Federal

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' Register notice, the ' Commission stated that the " proposed policy will be followed in the interim, except for those paragraphs in:the policy statement and Implementation section dealing with State proposals for instruments, of .

cooperation for participation in inspections and inspection entrance.and exit meetings. The Commission will not act on these specific types of State-proposed instruments of cooperation until the comment period expires and the policy statement is published as a final policy statement."

The NRC received 28 letters of comment; fourteen from members and representatives of the nuclear power industry, including electric utilities and their counsel, th.irteen from various State offices and one from a public interest group.

State Comments .

Most of the State offices expressed support for the NRC's policy "to cooperate fully with State governments as they seek to respond to the expectations of their citizens that their health and safety be protected and that there be minimal impact on the environment as a result of activities licensed by the NRC." In the opinion of these States, the NRC policy statement would, among other things, enable the NRC to maintain uniformity in its relations with all the States, strengthen Federal-State cooperation, reduce duplication of effort, encourage the development of a unified NRC/ State position on matters of joint concern, avoid the perception of dual regulation and improve nuclear safety. By giving " host" States, i.e., States in which an NRC licensed facility is located, a greater opportunity to participate with NRC in matters involving the use of radioactive materials, including the use of 1

those materials in nuclear power reactors located within the State, States would become better informed about the day-to-day activities of NRC licensees.

With the opening of these avenues of communication, NRC licensees would be made more aware of State concerns in related areas.

Two States stated that they are prepared to enter into a joint inspection program with NRC at this time. One State expressed no immediate interest but indicated that it might wish to participate in such a program in the future.

This State was supportive of the six conditions specified in the Policy Statement as prerequisites to State participation in NRC inspections and inspection entrance and exit meetings in accordance with the provisions of an instrument of cooperation entered into with NRC. One State indicated that it would appreciate routine notification of NRC inspection activities and public meetings affecting the State. One State supported, while another State opposed, independent State inspections of federally regulated facilities. The stated reasons for opposing such inspections were that they would confuse the regulated sector and would require the expenditure of sc'arce State resources in an area in which there is already adequate Federal enforcement. Noting the possible difficulty of securing needed funds for such inspections, one State recommended that the policy statement include suggested means of funding State inspections.

Noting that State needs for interaction with NRC are especially important in areas which are substantially affected by NRC actions but for which the State has central responsibility (e.g., rate-making, 1/ emergency 1

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-1/ For example, for nine years the New York Public Service Commission has had staff located at the Nine Mile Point site and until recently at Shoreham for the purpose of construction monitoring in order to evaluate the reasonableness of construction costs that directly affect base rates as well as operation and maintenance expenses.

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preparedness, environmental protection) several States expressed concern regarding the extent to which their differing needs and responsibilities would

be accommodated under the NRC policy. Some States expressed the view that l because of differing nature of State responsibilities, States might find it difficult to qualify for a Federal / State instrument of cooperation. One State suggested that the policy statement affirmatively recognize "the value of cooperation between the NRC and the States in areas where there is mutual interest but differing goals and responsibilities." Another State suggested that State representatives should be permitted to participate as observers in NRC enforcement, policy, exit or other meetings whenever the matters addressed involve issues of concern to the State.

Several States objected to that portion of the policy statement which would channel all communication between NRC ar.d e State through the State Liaison Officer on the grounds.that this proc'edure is too restrictive. Noting the needs of various State agencies to maintain a continuing relationship and ongoing dialogue with NRC, these States recommended that the policy statement be modified to allow for more than one State contact.

The comments submitted by the Oregon Department of Energy reflect Gregon's experience in implementing the provisions of a 1979 State law requiring the presence of a State inspector at the site of the Trojan Nuclear Facility in accordance with the provisions of an agreement relating to resident inspectors entered into between NRC and the Oregon Department of Energy (ODOE) in January 1980. Pursuant to these arrangements, ODOE participates in many of NRC's regulatory activities at Trojan. Based on its experience over the past eight years, ODCE is of the opinion that " personal interaction with plant staff is essential in gaining the information needed to accurately assess and influence

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I plant safety." According to ODOE, this experience demonstrates that State and NRC regulatory programs can be complementary without being duplicative and that State-Federal interaction en plant safety issues has been very productive. In its comments, 000E also states:-

"There have been no instances where Oregon has misinterpreted NRC safety requirements. Oregon regulators have never redirected the licensee's attention to areas not consistent with NRC safety priorities. And our agreenent with the NRC prevents such problems from occurring. It states:

"'If ODOE finds it necessary to direct the operators.of Trojan to take action, ODOE shall obtain NRC's prior agreement that such action does not have an adverse effect on riant or public safety. '" '

Expressing appreciation of NRC's cooperative approach to Oregon's regulatory program and noting that Oregon has worked hard to build and maintain public confidence that State and Federal regulatory programs assure safe operatiens at Trojan, ODOE expressed its belief that this relationship has benefited NRC and that dilution of the State's regulatory role to the level in the draft policy statement would not be in the best interest of the public.

Citing concerns relating to the operation of the Peach Bottom nuclear power reactor, located in Pennsylvania anly three miles north of the Maryland -

Pennsylvania border, Maryland exprcr W the view that the benefits eccorded Stater under the policy statement should not be limited to " host" States, but

l should also be s cended to all States within ten miles of a nuclear power plant.

One State expressed general concern with the provision in the policy statement which would require States, as a condition of entering into an instrument of cooperation with NRC for the purpose of State participation in inspections and inspection entrance and exit meetings, to recognize "the Federal Government, primarily NRC, as having the exclusive authority and responsibility to regulate the radiological and national security aspects of the construction and operation of nuclear production or utilization facilities, except for certain authority over air emissions granted to States by the Clean Air Act." (53 FR 21982, June 13,1988.) - This State declared that it "will not concede that.the federal government has unqualified and unspecified authority over these matters where public health, safety and environmental concerns are at risk." Noting that in 1985 it had entered into an agreement 2/ with NRC Region V which established a mutually acceptable procedure for 'the exchange of information concerning maintenance., engineering, quality assurance, security, emergency planning and operation of nuclear power plants located in the State, this State stated that it "will review the final policy statement adopted by the Commission to propose changes in the existing agreement which may be mutually productive."

2/ In accordance with this agreement, State personnel have attended NRC l inspector's exit meetings, shared information on environmental monitoring, participated in significant meetings between plant management personnel and senior representatives of NRC and worked jointly with NRC on emergency response drills and exercises.

1 Several States questioned the need to require State programs carried out under an instrument of cooperation to specify " minimum education, experience, training, and qualification requirements for State representatives which are patterned after those of NRC inspectors." In the opinion of some States, the standard of knowledge and training appropriate for State observers need not be as stringent as that for State inspectors. Other States expressed the view that the training and educational requirements applicable to Federal and State personnel need not be identical but should instead bear some reasonable relationship to the differing jurisdictional responsibilities of the Federal government and the States. One State questioned the provisions of the policy statement characterizing qualified State representatives as those

" knowledgeable in radiological health and safety matters." This State pointed out that "[i]f the intent of this definition is to exclude persons from disciplines other than radiological health and safety, it will unreasonably limit state involvement . . . ." and that "[t]his narrow a definition would contradict the spirit, if not the intent, of the objective of furthering federal / state cooperation."

In addition, the State commenters recommended that the policy statement be revised in the following respects:

o The policy statement should recognize the unique and diverse communication needs of various State agencies and allow for more than one State contact.

o The policy statement should affirmatively recognize the

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a value of cooperation between NRC and the States in areas where there is mutual interest but differing goals and responsibilities.

o The policy statement should be broadened to recognize the States' needs for interaction'with the NRC.in areas central to State responsibilities, but substantially affected by NRC actions.

o The second paragraph of the Implementation section should be revised by inserting the following sentence between the fifth and sixth sentences in that paragraph: -

"After a positive , assessment, State inspectors' .

inspections may be conducted individually and would be coordinated with the NRC resident inspector."

o The policy statement should be revised to accord all States located within ten miles S/ of a commercial nuclear power reactor the same rights and responsibilities accorded to the State in which the reactor is sited.

o The policy statement should include suggested means by

-3/ An industry commenter noted that in the case of a particular facility, the Commission might find it necessary to deal with the concerns of all States located within 50 miles of the ingestion pathway.

which a State could obtain funding for its inspection program.

Public Interest Comments The comments from the public interest group expressed support for the policy statement because it offers some important opportunities for State involvement in the protecticn of the health and safety of citizens and commended the NRC for taking the initiative in pursuing cooperation with States.

Industry Comments Fourteen comments were received from representatives of the nuclear power inddstry, including one from a major industry organization, two from legal .

counsel on behalf of fifteen electr'ic utilities holding NRC operating licenses for nuclear power plants, and eleven from individual electric utilities holding NRC operating licenses; three of the latter were also included in the group of electric utilities represented by legal counsel.

For the most part, the industry commenters acknowledged the legitimate concerns of the States in being kept well-informed of NRC's activities with respect to the regulation of commercial nuclear power plants. The industry commenters also expressed general support for the Commission's overall goal of promoting and enhancing NRC/ State cooperation. One commenter expressed the view that " policies which aid qualified State representatives in improving their understanding of the design and operation of . . . [ commercial nuclear i

power plants] are beneficial to all parties and should be encouraged." One j commenter characterized the policy statement as "a timely reaffirmation of federal preemption in the area of nuclear safety, which properly focuses on l

LJ - l state observation and participation in NRC meetings and inspections." One commenter expressed affirmation support for the Comission's stated position that in those instances in which inspections were conducted by State 1

l representatives, "[a]ll enforcement action will be undertaken by the flRC."

l (53 FR 21983,ilune 13, 1988.)

The industry conmenters were in substantial disagreement, however, as to how this goal might best be achieved. Two commenters expressed unqualified support for the policy statement as published June 13, 1988, one stating that the policy statement correctly maintains the current balance between Federal and State authority in the field of nuclear regulation, the other urging that the Commission promulgate the policy statement in final form as soon as practicable. Two commenters considered the policy statement's six criteria for an acceptable' State proposal for_ entrance into an NRC/ State instrument of cooperation relat'ing to nuclear power plant inspections to be reasonable and appropriate. However, one of these commenters was concerned that the policy statement does not address how the NRC will enforce its authority should a State representative exceed the scope of his/her authority under an instrument of cooperation. In order to assure continuing compliance, the commenter recommended that either the policy statement or the instrument of cooperation provide for some sort of period 1c review.

Several commenters expressed contrary views. One comnenter did not believe a policy of allowing State participation in routine inspection activities to be necessary or in the best interest of the NRC or its licensees.

Another commenter expressed the view that legitimate concerns of States regarding the safety and operation of nuclear power plants could be addressed l in the currently prescribed licensing process. However, this commenter was

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also of the opinion that the NRC should proceed on a case-by-case basis S/ if it feels State input is essential. The commenter also noted that the pclicy statement as published for comment is ambiguous and that "[t]his ambiguity can lead to a situation where a State, for whatever reason, could hinder the NRC in its regulation of nuclear power."

Most commenters endorsed the second paragraph of the policy statement which provides that the NRC will (1) continue to keep Governor-appointed State Liaison Officers routinely informed on matters of interest to States, (2) I respond in a timely manner to a State's requests for information and to its recommendations concerning matters within the NRC's regulatory jurisdiction,

~4/ If the NRC should decide to proceed in this manner, the commenter recommended that the following guidelines should be followed:

The NRC should:

o consider a State's concerns regarding safety of a nuclear power plant responding, when necessary, with an inspection which could include State observers; o provide a State with timely information regarding its concerns, providing the information is not proprietary or does not pertain to security matters; o include State representation in public meetings with the licensees; o obtain State assistance when such assistance would be a benefit to the NRC in its regulatory duties; and o have complete oversight of State activities regarding nuclear safety.

The NRC should not:  !

o permit independent State inspection programs or reviews; o delegate responsibility for performing NRC inspections to State representatives.

(3) upon request, routinely inform State Liaison Officers of public meetings

, between NRC and its licensees and applicants in order that State l representatives may attend as observers, and (4) upon request, permit State representatives to observe but not to participate actively in specific l inspections and/or inspection entrance and exit meetings where State representatives are knowledgeable in radiological health and safety matters.

J In the opinion of the commenters, these provisions constitute both an appropriate and an adequate basis for achieving the desired communication and cooperation between the Commission and the States. Two commenters expressed a willingness to have State representatives present at public meetings with NRC licensees. These same two commenters favored giving States timely information provided the information in question did not relate to proprietary or security matters.

Viewing the observation process as a logical first step to ultimate participation in NRC inspection activities, one commenter expressed concern that State representatives should be allowed to observe NRC inspections and/or NRC inspection entrance and exit meetings solely on the approval of an NRC Regional Administrator. In the opinion of the commenter, observation by State representatives should be delayed until the State and NRC have signed a formal instrument of cooperation.

Most industry commenters, including the respective legal counsel retained by electric utilities holding NRC operating licenses, opposed, in whole or in part, those portions of the policy statement which seek to achieve the goal of NRC/ State cooperation by delegating to the States any part of the Commission's authority to conduct inspections at nuclear power plants. In particular, the commenters objected to the provisions of the policy statement which relate to

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i State proposals to enter into instruments of cooperation for State participation in NRC inspections of commercial nuclear power plants and in NRC inspection entrance and exit meetings, and the types of inspection activities which qualified State representatives may be permitted to perform. some of the commenters opposed any type of State inspection program, whether conducted independently or under continuing NRC oversight. Other commenters were principally concerned about those passages of the policy statement which, in their opinion, carry "the clear implication . . . that there will be occasions on which State representatives will be allowed to conduct their own inspections at nuclear generating plants 'on behalf of' the NRC, unaccompanied by NRC representatives." 5/ Two commenters who opposed independent State inspection programs indicated a willingness to accept Stafe participation in NRC inspections as long as the State representatives were always accompanied by a qualified NRC inspector. One of these commenters suggested that the role of State representatives at an NRC inspection should be the same as that accorded NRC consultants.

The commenters who opposed any type of State inspection program, whether conducted independently or under continuing NRC oversight, strongly urged the Commission to provide specifically that no State radiological health and safety inspections of NRC-licensed commercial nuclear power reactors will be permitted, independent or otherwise. In their view, the role of State 5/ According to one commenter, ". . . the policy statement completely fails to establish the legal authority of State representatives to alone inspect nuclear safety activities -- in the words of the policy statement, 'on behalf of the NRC.'"

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representatives should be strictly limited to.' observation'of, or participation in, entrance and exit meetings. Noting that implementation of this aspect of-the policy statement would make the regulatory process unnecessarily.

complicated and redundant--under the policy NRC staff would be required both to -

_ qualify State inspectors and to assume. full responsibility for the manner in which State inspectors conduct any subsequent activities--the commenters based their objections on legal, policy and practical grounds.

According to these commenters, the Atomic energy Act of 1954,'as amended, gives the NRC exclusive responsibility for regulating the. radiological and national security aspects of the construction and operation'of. nuclear production and utilization facilities. Therefore, under the doctrine of Federal preemption, States are without legal authority to conduct inspections of nuclear power plants for the purpose of protecting the radiological health and safety of the public. By the same token, NRC is also precluded from delegating to other persons, including States, any of its regulatory responsibilities respecting such facilities, including, among others, the responsibility of inspecting commercial nuclear power reactors. The commenters are also of the view that delegation of inspection authority to State representatives as proposed in the policy stateinent exceeds the scopa and intent of section 274 of the Atomic Energy Act of 1954, as amended. In the opinion of these commenters, secti,on 2741 of the Act does not provide an independent legal basis for entering into agreements with States, but must be read in the context of section 274 of which it is a part. Under the provisions of section 274b, States are only authorized to enter into agreements to regulate materials, specifically, source, byproduct, special nuclear material l

and low-level radioactive waste. Section 274c of the Act, which reserves 1

4 certain authorities to the Commission, makes cicar that the responsibility for regulating nuclear power reactors from the standpoint of radiological health and safety remains with the NRC. In view of these statutory provisions, it is the considered opinion of the commenters that, under existing law, section 2741 "should properly be read to ,oermit only inspections related to . . . materials" and to allow "NRC to enter ' instruments of cooperation' only with respect to licensed activities other than commercial nuclear power reactors (e.g.,

materials licensces) or with respect to matters other than radiological health and safety (e.g., certain environmental matters.)" Section 2741 should not be read as authorizing NRC to enter into agreements with States under which States will conduct inspections of commercial nuclear power plants for NRC.

The commenters also viewed the provisions of the policy statement inviting States to enter into instruments of cooperation with NRC for the purpose of j 1

participating in NRC inspections and inspection entrance ard exit meetings as contrary to law because such arrangements constitute dual or concurrent regulation. As the legislative history of section 274 of the Atomic Energy Act of 1954, as amended, makes clear, it was the intent of section 274 that regulatory authority either be exercised by the Federal government or by the States, but not by both.

The commenters also objected to the provisions of the NRC policy statement respecting the use of State inspectors at nuclear power plants in accordance with NRC/ State instruments of cooperation on the ground that despite these arrangements such activities could have negative implications for public health and safety. According to the commenters, permitting States to participate in NRC inspections would greatly increase the likelihood of divergent Federal and State interpretations of regulatory requirements which would, in turn, create

l uncertainty and confusion, inject an unsettling and destabilizing element into the regulatory process and result in significant delay in the resolution of specific problems identified during an inspection. In connection with this objection, the commenters noted the parallel concerns expressed by NRC "that independent State inspection programs could direct an applicant's or licensee's attention to areas not consistent with NRC safety priorities, misinterpret NRC safety requirements, or give the perception of dual regulation." (53 FR 21981, ilune 13, 1988.) As an example of the practical difficulties that night be encountered, the commenters pointed to the Comission's own recent experience with its emergency planning regulations which accorded State and local governments a substantial role. According to the commenters, ' history has shown that those regulations have resulted in State-imposed delays on reactor ,

operations, and in one case, a finished power plant apparently wil'1 be torn down before it ever operates." The commenters also expressed the view that these difficulties could engender frictions which if left unresolved could defeat the avowed purpose of the Commission's policy to enhance cooperation

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with the States.

Claiming that the policy statement does not appear to address any clear need and that its implementation is unlikely to result in any significant benefits other than greater coordination of Federal / State activities, the commenters pointed out that arrangements for State participation in NRC inspections under instruments of cooperation would be expensive and would likely result in inefficient utilization of rate payer resources. For example, NRC personnel would be required to devote time and resources to training, l qualifying, managing and communicating with State personnel and to overseeing the State's program. In addition to paying for time billed by NRC, NRC

I licensees would likely be called upon to provide on-site facilities and services for State persontel participating in nuclear power plant inspections comparable to those provided to NRC resident inspectors. States would be required to bear the direct costs, e.g., hiring expenses, salaries, employment

$ benefits, of hiring and maintaining a cadre of individuals cualified tc conduct ,

l In the opinion of one inspections of commercial nuclear power plants.

commenter, it would be less wasteful and more cost effective to have a few NRC fnspectors with appropriate training and expertise than to have many States acquire these capabilities. In this connection, the commenter questioned whether NRC would be able, in view of continuing budget constraints, to give State inspectors proper training and maintain an appropriate level of oversight of State inspectors and State inspection programs.

Several commenters criticized the. policy statement because it failed to address such practical problems as how the NRC will judge the adequacy of a State inspection program and how the NRC will assure the competence of State inspectors and whether these determinations will be made by the Regions cr at NRC Headquarters. In the opinion of the commenter, uniform interpretation of the policy statement could best be assured by including a detailed description of an adequate State program and specifying minimum qualifications for State inspectors.

One commenter recommended that the policy statement provide for arbitration as a method of resolving problems in those instances in which a State representative or State inspector is less than fully qualified. Another commenter requested that NRC licensees be informed whenever a State initiates negotiations with NRC regarding an instrument of cooperation so that the licensees could participate in the process.

One commenter noted that in the case of a particular facility, it might be necessary for the Commission to deal with the concerns of several States, for example, States located within 50 miles of the ingestion pathway, instead of limiting Commission consideration to the concerns of the State within which the facility site is located. Another commenter had no objection to keeping appropriate representatives of neighboring States apprised of regulatory ,

activities at a specific facility but urged that the on-site presence of State personnel be limited to representatives of the State in which the facility is l located.

Three commenters expressed the view that the NRC should closely monitor and periodically evalua'te the implementation of whatever policy is finally adopted and any instruments of cooperation executed thereunder to assure that the program is effective, that there is no misapplication of authority, and

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that the best interests of the Nation are being served. .

In addition, the industry commenters recommended that the policy statement be revised in the following respects:

o The policy statement should provide specifically that no State radiological health and safety inspections of NRC-licensed commercial  ;

nuclear power reactors will be permitted, independent or otherwise. l o The policy statement should strictly limit the role of State I i

representatives to observation of, or participation in, NRC entrance I

and exit meetings. The additional qualifications applicable to State representatives as currently incorporated in the policy statement 1

w (e.g., that State representatives should be knowledgeable) should be retained.

o The policy statement should provide-that State representatives may participate in NRC inspections only as observers, and may not a70ne inspect NRC-regulated activities (even if those inspections would be j conducted with the cooperation of the NRC and in accordance with NRC inspection procedures).

o The policy statement should prohibit State disclosure of inspection findings both before and after release of the NRC inspection report.

6/

o The policy statement should apprise potentially affected licensees and appli' cants that their State is pursuing an instrument of cooperation with the NRC and provide for these licensees and applicants an opportunity to comment on drafts of instruments of cooperation du. ring negotiations between the NRC and the State.

-6/ This recommendation was based on the commenter's view that the release by a State of underlying inspection data, notes, observations and findings even after release of an NRC inspection report could be prejudicial to the NRC's inspection and enforcement process, particularly if the information released by the State appeared on its face to be inconsistent in any way with the ultimate findings of the NRC inspection report. Another commenter stated that State observers should be required not to divulge any information obtained without prior clearance by the NRC.

4 e

o The policy statement should specify how the NRC will enforce its.

authority should a State representative exceed the scope of his/her.  ;

authority under an instrument of cooperation.

o The policy statement should provide for renegotiation of existing instruments of cooperation between the NRC and the States at the earliest opportunity, to bring the existing agreements into conformance with the policy statement.

o- The policy statement should explicitly limit any "on-site" presence of State personnel to representatives of the State in which the facility .is located. .

NRC RESPONSE Introduction As the pr,eceding summary indicates, the commenters offered several suggestions for modifying the policy statement and expressed concerns on a variety of matters, including, among others: legal issues; the effect whi.'

implementation of the policy statement could have on NRC licensees; the use of State Liaison Officers as the preferred channel of communication between the States and NRC; the nature of State participation in NRC inspections, including the advisability or inadvisability of State participation, the qualifications

{

! of State representatives, the status to be accorded representatives of adjacent States, and the handling and use of information obtained during an NRC

o w.

inspection. The commenters also expressed concerns regarding the role, if any, to be accorded applicants for or holders of NRC licenses for commercial nuclear power reactors and other nuclear production and utilization facilities during ongoing negotiations between NRC and a State regarding the terms of a NRC/ State instrument of cooperation.

Legal Issues.

We turn first to the commenters' legal concerns that the portions of the policy statement which provide for State participation in NRC inspections at connercial nuclear power plants and in NRC inspection entrance and exit meetings in accordance with the provisions of an NRC/ State instrument of cooperation are contrary to law because such activities are precluded by the doctrine of Federal preemption and beyond the scope of section 274 of the Atomic Energy Act of 1954, as amended. ,

Section 161 of the atcmic Energy Act of 1954, as amended, sets forth the general powers of the Commission in licensing or regulating any of the ,

activities authorized by the Act, including the licensing and regulation of utilization and production facilities. Section 161f (42 U.S.C. 2201(f)) which is identical to section 12(a) of the Atomic Energy Act of 1946 and has remained unchanged since February 17, 1954 when it was reenacted into public law (Pub.

Law. 703, 68 Stat. 949) provides:

"Sec. 161. General Provisions. -- In the performance of its functions the Commission is authorized to --

"f. with the consent of the agency concerned, utilize or employ the services or personnel of any Government agency or any State or local government, or voluntary or uncompensated personnel, to perform such functions on its behalf as may appear desirable;"

.a This provision, standing alone, gives the Commission broad discretionary authority to enter into arrangements with States respecting inspections at nuclear power plants, including arrangements pursuant to instruments of cooperation as described in the policy statement.

In 1959, at the. time of the enactment of the Federal / State Amendment which added section 274 to the Atomic Energy Act of 1954, Congress clarified this authority in section 161f by providing in the first sentence of section 2741 that "The Commission in carrying out its licensing and regulatory responsibilities under this Act is authorized to enter inte agreements with any State, or group of States, to perform, inspections ~ or other functions cn a cooperative basis as the Commission deems appropriate." (Emphasis supplied.)

The legislative history of section 274 1/ contains no evidence that the first sentence in section 2741 was intended to limit the broad scope of the Commission's authority in section 161f to those matters over which the States were authorized to assume regulatory authority in accordance with the provisions of section 274b agreements. The legislative history merely indicates that one permissible way in which the Commission may exercise its authority under section 161f is " . . . to enter into agreements with any 1 State, or group of States, to perform inspections or other functions on a cooperative basis as the Commission deems appropriate." For the foregoing reasons, the Commission disagrees with the conclusion of the commenters that 7/ For an account of the legislative history of section 274, see NUREG 0380, ,

Final Task Force Report on the Agreement States Program, December 1977,  !

Appendix A, especially pp. A A-6.

1 l

- 27'-

section 2741 does 1ot provide an independent legal basis for entering int'o agreements-with States.

The commenters'. objections that the provisions of the policy statement relating to State participation in NRC inspections at commercial nuclear power plants pursuant to 'an NRC/ State instrument of cooperation are contrary to law by reason of the doctrine of Federal preemption are equally without merit.

Federal preemption, which is based on the Supremacy Clause of the Constitution, resolves controversies which arise as a result of the conflicting demands of Federal and State laws. Here there is no conflicting State law.

The only document of concern is a policy statement prepared by a Federal agency which states in the clearest possible terms that it will be implemented at both the State and Federal level in strict accordance with applicable law. El Since, as the above analysis shows, the policy statement is 'within NRC's statutory authority, there is no preemption issue.

A related concern expressed by a State commenter was that any formal acknowledgement by a state of NRC's legal authority, as recited in the first of I g/ For example, the policy statement affirmatively "[r]ecognizes the Federal Government, primarily NRC, as having the exclusive authority and responsibility to regulate the radiological and national security aspects of the construction and operation of nuclear production or utilization I facilities, except for certain authority over air emissions granted to l

States by the Clean Air Act;. . ." the policy statement also identifies six elements which must be ircluded in a state proposal for an instrument of cooperation in order to assure the proposal's consistency with the  ;

provisions of section 274c. of the Atomic Energy Act of 1954, as amended.

Section 274c provides in part that "[n]o agreement entered into pursuant to subsection b. shall provide for discontinuance of any authority and the Commission shall retain authority and responsibility with respect to regulation of -- (1) the construction and operation of any production or utilization facility; . . ."

l _ __-____-_______ _ _-_- - _ - _ _ -

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the six conditions enumerated in the policy statement, might be viewed as a relinquishment by a State of some part of the State's rightful authority to protect the health, welfare and environment of it: citizens. It is not the purpose of the policy statement to alter the respective responsibilities of the l Federal government and the States or to require the States to concede to the Federal government any areas of the legitimate State responsibility. The only purpose of the policy statement is to describe the ground rules under which representatives of States can participate in NRC inspections and related meetings, a Federal function. Accordingly, it is both reasonable and appropriate that the Commission should identify in the text of the policy statement the legal authority on which its policies and regulatory activities are based, and to ask the States to recognize that the inspections which they will be partic~1pating in are Federal, not State, inspections'. As further' evidence of the fact that it is not the purpose of trie policy statement to encroach on the lawful exercise of State prerogatives, the Commission will continue its prior practice of including a general provision in agreements entered into with States under secticn 2741 of the Atomic Energy Act of 1954, as amended, which states that nothing in the agreement is intended to restrict or expand the statutory authority of either ?!RC or the State.

s Implementation of Policy Statement - Effect on NRC Licensees; Costs According to industry commenters, implementation of the provisions of the policy statement respecting the use of State inspectors at nuclear power plants in accordance with NRC/ State instruments of cooperation is likely to have a negative effect on public health and safety. In the opinion of these ccmmenters, permitting States to participate in NRC inspections would not only create the appearance of dual regulation but would also greatly increase the likelibcod of divergent Federal and State interpretations of regulatory requirements. The resulting uncertainty and confusion would inject an unsettling and destabilizing element into the regulatory process and could significantly delay efforts to resolve specific problems identified during an inspection. -

State commenters expressed contrary views. In the opinion of these commenters, implementation of the NRC policy statement would foster uniformity, strengthen Federdi-State cooperation, reduce duplication of effort, encourage the development of a unified NRC/ State position on matters of joint concern, avoid the perception of dual regulation and improve nuclear safety.

Based on its experience with State resident inspectors at the Trojan Nuclear Power Plant in Oregon, which has demonstrated that complementary State-Federal interaction on plant safety issues can be productive, the Commission believes that the concerns expressed by the industry commenters are I

unrealistic and exaggerated. The Commission reiterates its conmitment, as '

stated in the Implementation section of the policy statement, to perform a formal review of a memorandum of understanding (MOU) between NRC and a State relatino to State involvement in NRC inspections l

I

_ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ l

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". . . not less than six months after the effective date [of the MOU] . . . to evaluate implementation of the MOU and resolve any problems identified. Final agreements will be subject to periodic reviews and may be amended or modified upon written agreement by both parties and may'be terminated upon 30 days written notice by either party."

In view of this commitment, as well as the Commission's announced intent that activities undertaken to implement the policy statement shall be carried out in close cooperation with and be subject to oversight by the NRC, the Commission has concluded that the concerns raised by the industry commenters

- lack substance an'd that at this time no change in the policy statement is warranted.

State and industry commenters also expressed concerns regarding the costs of implementing the policy statement. Noting that States might experience difficulty in obtaining needed funds, one State recommended that the policy i

statement include suggested means of funding State inspections. Industry commenters were concerned that implementation of the policy statement would result in the assessment of higher regulatory fees.

The Commission does not intend to charge licensees additional fees for regulatory activities because those activities are conducted in accordance with the provisions of the policy statement. Nor does the Commission expect or intend any increase in regulatory costs as a result of adopting and promulgating the policy statement. In view of these circumstances, the concerns expressed by the industry commenters do not appear to be well founded.

l

Although requested to do so, the Commission has declined to revise the policy statement in order to address the topic of possible sources of State funds. This position is consistent with the underlying policy of the 1959 Federal-State amendment to the Atomic Energy Act of 1954, as amended, which makes no provision for the expenditure of Federal funds for the purpose of administering State regulatory programs.

Communication through State Liaison Officers b

Several States objected to that portion of the policy statement which I would channel all communication between NRC and a State through the State liaison Officer on the grounds that thir procedure is too restrictive. Noting ,

1 the needs of various State agencies to maintain a continuing relationship and ongoing dialogue with NRC, these States recommended that the policy statement be modified to allow for more than one State contact.

The Commission is well aware of the varying interests of States in the activities of commercial nuclear power plants and of the number of different State agencies with direct responsibility for various aspects of those activities. It is precisely because this situation exists that the Commission has adopted a policy which requires that all inquiries and requests from States respecting observations and inspections at commercial nuclear power plants and all information from NRC to States respecting these matters be channeled through a single point, namely the office of the State Liaison Officer. This arrangement not only assures the Commission that NRC information of interest to the States will be sent forward to those State agencies that need to know, it also assures interested State agencies that their requests and inquiries will be handled in a uniform and businesslike manner. Since the primary purpose of the policy statement is to articulate the manner in which the Commission plans

7 g:.

to conduct its business in this area and to provide guidance to NRC Regional' Offices'which will assure that these matters are handled uniformly, it is neither necessary nor appropriate to modify the policy statement to elaborate further on the differing nature or wide variety of State responsibilities.

For the foregoing reasons, the Commission has made no change in the' provisions of the policy statement which relate to communication through State Liaison Officers. The Commission has also concluded that the policy statement adequately. reflects the complementary interests and responsibilities of the States and that no. changes relating to this matter are needed.

State Attendance at and Participation in NRC Inspections Citing the likelihood of increased complexity, confusion and uncertainty in the regulatory process and the possibility of,an attendant reduction in the safety of nuclear ' power plants, most of the industry corsnenters opposed allowing State representatives to participate in NRC inspections and stated that in no event should State representatives be allowed to perform independent inspections or reviews.

As noted earlier, the Commission does not consider the concerns of the industry comenters regarding_a possible decrease in nuclear safety well founded. At the same time, the Commission wishes to make quite clear that the policy statement does not contemplate and should not be interpreted as authorizing States, using State radiological health and safety standards, to conduct independent health and safety inspections of commercial nuclear power plants.

As explained in the policy statement, the NRC inspections and associated entrance and exit rieetings which State representatives will be pemitted to

. attend as observers or as participants, for the purpose of assisting NRC, will {

t

i .

w be conducted under the close and continuing surveillance of the NRC and in strict accoroance with Federal standards and regulations. The presence of the NRC is essential not only because all communications with the licensee must be made through the NRC but also because the NRC is solely responsible for taking i any needed enforcement action. Where an enforcement conference is held with the licensee as an extension to a particular inspection which the State cbserved cr participated in, the State representative who attended the inspection will be invited to the enforcement conference. If information relevant to an NRC enforcement matter was obtained by a State representative during an inspection and subsequently made available to the NRC, it is expected that the State representative would also be invited to attend the enforcement conference. Moreover, State assistance, including testimony at any enforcement hearing, may be needed to carry out NRC's enforcement program.

A related matter concerns the role to be accorded State representatives who wish to attend or participate in entrance and exit meetings and inspections of nuclear power reactors located in adjacent States. Despite disagreement on the criteria to be used to identify adjacent States, there was a general consensus among commenters who addressed this issue that representatives from adjacent States should be permitted to attend meetings and inspections subject to the same conditions that apply to representatives from the host State.

The Commission has given considerable thought to this. matter and has concluded that for the time being and in accordance with its original intent, the scope of the policy statement should be limited to cooperation between NRC and " host" States, i.e., States in which an NRC licensed facility is loc 6ted.

After the Commission has gained some practical experience in implementing the present policy, it will recensider the question of whether and to what extent

I w

1 i

the policy statement should be broadened.to encompass cooperative arrangements between NRC and " adjacent" States.

L The policy statement makes clear that State representatives must be L. properly qualified'to undertake their assigned roles, whether as participants or observers. Although State representatives-who only observe need not be as knowledgeable technica11y'as State representatives who actively participate in inspections, they must have some general understanding of the: nature of nuclear pcwer for the observation to be meaningful.- Consistent with those provisions of the policy statement which contemplate that State representatives will be-qualified to perform any tasks they may be assigned, it is the expectation of ,

the Connission that, subject to specific guidelines contained in the formal instrument of cooperation' entered into between NRC and a particular State, the extent to which State representatives may be permitted to participate in an NRC inspection will be determined in each instance by the NRC representative authorized to conduct the inspection in light of the particular qualifications of the State representative accompanying the NRC inspection team. While the Commission recognizes the importance of specifying minimum qualifications for State inspectors, as suggested by one of the cornenters, it is of the opinion that this matter can best be dealt with in the context of each NRC/ State 1

instrument of cooperation when the qualifications of individuals who may be able to perform this function for the State are.likely to be better known. In its present form, the policy statement provides adequate general guidance on this matter. For these same reasons, the Commission has also declined to adopt the suggestion of a State commenter to add an additional sentence concerning State inspectors to the second paragraph of the Implementation section.

____._.___-_______.____.m _ _ . _ _

Accordingly, the Commission has made no changes in the policy statement in response to these comments.

Several commenters expressed the view that the policy statement should prohibit State disclosure of inspection findings after as well as before the NRC inspection report is publicly released. Commenters also expressed concern about the disclosure by State representatives of any underlying data obtained or any notes or observations made while attending or participating in an NRC inspection. The Commission is of the opinien that insofar as State representatives are apprised of this information as a result of their involvement in NRC's regulatory activities, that State representatives should ,

be required to meet the same standards as their NRC counterparts rega'rding information disclosure.

Opportunity for Public Comment on NRC-State Instruments of Cooperation Relating to Inspections at Commercial Nuclear Power Plants The Commission has given considerable thought to the suggestion of some of the industry commenters that potentially affected applicants for NRC licenses and NRC licensees should be notified that their State is pursuing an instrument of cooperation with NRC and be accorded an opportunity, during ongoing negotiations between NRC and the State, to submit public comments on the draft instrument of cooperation before it is finally agreed to by NRC and the State.

The Commission recognizes that the subject matter of these instruments of cooperation is of great interest to nuclear power plant applicants and licensees, who are, of course, the entities that will be inspected.

The Commission published the policy statement in the Federal Register for the express purpose of obtaining public comment. Thus NRC applicants and licensees have already had an opportunity to express their views and concerns

L 4

. 1 on the principal policy issues relating to the conduct of NRC/ State inspections at commercial nuclear power plants, including issues relating to the scope and content of NRC/ State instruments of cooperation. In the opinion of the Commission, it would not serve any useful purpose automatically to accord NRC applicants and licensees a further participatory role in negotiations between NRC and a particular State regarding the terms of a specific agreement. As the ,

provisions of the Commission's statement of policy make clear, the inspections to which these NRC/ State instruments of cooperation will relate will be conducted in strict accordance with existing NRC standards and regulations, thereby assuring that the obligations imposed on and the rights accorded NRC licen'ees s in connection with HRC inspections will be scrupulously observed. In each case, negotiations between NRC and interested States will be narrowly limited to concerns which relate to the manner in which one of the Commission's t

own regulatory functions, namely the conduct of inspections, will be implemented by NRC in those instances in which a State has indicated its willingness to assist in performing certain aspects of that function on NRC's behalf. In the opinion of the Commission, details of this kind can be readily resolved through negotiation between the principals and do not present the kinds of issues on which further public comments will always be needed or required. Accordingly, the Commission has not modified the policy statement to provide an opportunity for interested NRC applicSnts and licensees to participate in ongoing NRC/ State negotiations by submitting public comments.

Conclusion For the foregoing reasons and after careful consideration of the connents submitted, the Commission has concluded not to change the text of the' policy statement as published for comment on June 13, 1988 (53 FR 21981).

i Accordingly, the Commission hereby adopts and republishes that policy statement as a final statement of policy. The Commission further declares that the final statement of policy in its entirety is effective immediately.

III. Statement of Policy-It is the NRC's policy to cooperate fully with State governments as they seek to respond to the expectations of their citizens that their health and safety be protected and that there be minimal impact on the environment as a result of activ'iles licensed by the NRC. The NRC ano the States have complementary responsibilities in protecting public health and safety and the environment. Fut thermore, the NRC is committed to the full and timely disclosure of matters affecting the public and to the fair and uniform handling of all agency intera W :'ns with the States, the public, and NRC licensees.

Accordingly, the NRC will continue to keep Governor-appointed State Liaison Officers reutinely informed on matters of interest to the States. The

~

NRC will respond in a timely manner to a State's requests for information ard its recommendations concerning matter within che NRC's regulatory jurisdiction.

If requested, the NPC will routinely inform State Liaison Officers of public meetings between NRC and it'; licensees and applicants in order that State representatives may attend as observers. Additionally, at the State's request, State representatives will be able to observe specific inspections and/or inspection entrance and exit meetings where State representatives are knowledgeable in radiological health and safety matters.

The Commission recognizes that the involvement of qualified State representatives it. NRC radiological health and safety programs has the l

l potential for providing additional safety benefit. Therefore, the NRC will consider State proposals to enter into instruments of cooperation for State I

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. . I e

e' participation in' inspections and inspection entrance and exit meetings. ' State-participation in NRC programs would allow qualified Str.te representatives, either individually or as a member of a ~ team, to conduct specific inspection activities in accordance with NRC standards, regulations, and procedures in close cooperation with the NRC. State activities will normally be conducted under the oversight of an authorized NRC representative with the degree of oversight dependent upon the activity involved. In the proposal to enter into an instrument of cooperation, the. State must identify those activities for which cooperation with the NRC is desired. The State must propose a program that: (1)RecognizestheFederalGovernment,primarilyHRC,ashavingthe-exclusive authority and responsibility to regulate the radiological and national security aspects of the construction and operatic ; cf nuclear ,

production or utilization facilities, except for certain authority over dir emissions granted to States by the Clean Air Act; (2) is in accordance with .

Federal standards and regulations; (3) specifies minimum education, experience, training,-and qualifications requirements for State representatives which are patterned after those of NRC inspectors; (a) contains provisions for the findings of State representatives to be transmitted to NRC for disposition; (5) would not impose an undue burden on the NRC and its licensees and applicants; and (6) abides by NRC protocol not to publicly disclose inspection findings prior to the release of the NRC inspection report.

Consistent with section 274c of the Act, the NRC will not consider State  ;

proposals for instruments of cooperation that do not include the elements listed above, which are designed to ensure close cooperation and consist.ency with the NRC inspection program. As a practical matter, the NRC is concerned that independent State inspection programs could direct an applicant's or l'

L_______________

( ,

e' licensee's attention to areas not censistent with NRC safety priorities, misinterpret NRC safety requirements, or give the perception of dual regulation. For purposes of this policy statement, an independent State inspection program is one in which State representatives would conduct inspections and assess NRC-regulated activities on a State's own initiative and i

authority without close cooperation with, and oversight by, an authorized NRC representative.

Instruments of cooperation between the NRC and the States, approved prior to the date of this policy statement will continue to be honored by the NRC.

The NRC strongly encourages those States holding these agreements to consider modifying them, if necessary, to bring them into conformance with the provisions of this policy statement.

IV. Implementation As provided in the policy statement the NRC will routinely keep State Liaison Officers informed on matters of interest to the States. In general, all State requests should come from the State Liaison Officer to the appropriate NRC Regional Office. The NRC will make every effort to respond as fully as possible to all requests from States for information on matters concerning nuclear production or utilization facility safety within 30 days.

The NRC will work to achieve a timely response to State recommendations l relating to the safe operation of nuclear production or utilization facilities.

State representatives are free to attend as observers any public meeting betw NRC and its applicant and licensees. The appropriate Regional Office will routinely inform State Liaison Officers of the scheduling of public meetings upon request. State requests to observe inspections and/or inspection i

l.

)

d entrance and exit meetings conducted by the NRC require the approval of the appropriate Regional Administrator.

NRC will consider State participation in inspections and the inspection entrance and exit meetings, where the State-proposed agreement identifies the specific inspections they wish to assist NRC with and provides a program containing those elements as described in the policy statement. NRC may develop inspection plans along with qualified State representatives usir.g applicable procedures in the NRC Inspection Itanual. Qualified State representatives may be permitted to perform inspections in cooperation with, and on behalf of, the NRC under the oversight of an authorized NRC representative. The degree of oversight provided would depend on the activity.

For instance, State representatives may be accompanied by an NRC representative initially, in order to assess the State inspectors' preparedness to conduct the inspection individually. Other activities may be conducted as a team with NRC taking the lead. All enforcement action will be undertaken by the flRC.

The Comission will decide policy matters related to agreements proposed under this policy statement. Once the Comission has decided the policy on a specific type of agreement, similar State-proposed agreements may be approved, consistent with Comission policy, by the Executive Director for Operations in coordination with the Office of Governmental and Public Affairs. A 4 State-proposed instrument of cooperation will be documented in a formal MOU signed by NRC and the State.

Once the NRC has decided to enter into.an MOV for State involvement in fiRC inspections, a formal review, not less than six months after the effective date, will be performed by the NRC to evaluate implementation of the MOV and resolve any problems identified. Final agreements will be r;bject to periodic  !

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i reviews and may be amended or modified upon written agreement by both parties I

and may be terminated upon 30 days written notice by either party.

Additionally, once State involvement in NRC activities at a nuclear production or utilization facility is approved by the NRC, the State is responsible for meeting all requirements of an NRC licensee and applicant related to personal safety and unescorted access of State representatives at the site.

Dated at Rockville, Maryland, this day of , 1988.

For the Nuclear Regulatory Commission Samuel J. Chilk, Secretary of the Commission 1

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